The Issue Whether Petitioner's request for arbitration before the Florida New Motor Vehicle Arbitration Board should be granted.
Findings Of Fact Petitioner, Danielle Manfredo (Manfredo), purchased a 1992 Mitsubishi Eclipse from Leheman Mitsubishi in Miami, Florida, on November 5, 1992, and took possession of the vehicle on the same date. When Manfredo purchased the automobile she was given an owner's manual for a 1993 Mitsubishi Eclipse. She did not receive a brochure concerning the Florida Lemon Law nor was she provided any information by the car dealer concerning her rights under the Florida Lemon Law. In January, 1993, Manfredo began experiencing problems with the vehicle and continued experiencing problems into 1995. The two primary problems dealt with the transmission and the car pulling to the right. Manfredo continued to take the car in for repairs. In August, 1995, Manfredo obtained a Lemon Law form from her future mother-in-law. On August 25, 1995, Manfredo sent a Motor Vehicle Notification to the manufacturer and to the Attorney General. Respondent, Department of Agriculture and Consumer Affairs, Division of Consumer Affairs (Department) is the state agency charged with the responsibility to receive and evaluate Requests for Arbitration before the Florida New Motor Vehicle Arbitration Board for referral to the Attorney General for further processing and action. On September 27, 1995, Manfredo called the Department to get an application for arbitration. On October 17, 1995, she filed a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. By letter dated November 8, 1995, the Department denied Manfredo's request for arbitration, stating that the request was not timely. The latest possible date Manfredo could have filed a request for arbitration was May 5, 1995. Manfredo's request for arbitration was not timely filed. The Vehicle Defect Notification and the Request for Arbitration are not the same document and do not serve the same purpose. Mitsubishi does not have a state-certified manufacturer procedure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Danielle Manfredo's request for arbitration. DONE AND ENTERED this 11th day of April, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 11th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-192 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. No proposed recommended order was filed. Respondent's Proposed Findings of Fact. 1. Paragraphs 1-12: Accepted in substance. COPIES FURNISHED: Danielle Manfredo 1412 Southwest 129th Court Miami, Florida 33184 Rhonda Long Bass, Esquire 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, PL-10 Tallahassee, Florida 32399-0810 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-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 Whether 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 Based upon the evidence adduced at hearing, the factual stipulations into which the parties have entered, and the record as a whole, the following Findings of Fact are made: Petitioner purchased the motor vehicle that is the subject of the instant controversy, a 1991 Mitsubishi Eclipse, on May 23, 1991, from King Mitsubishi, a Mitsubishi dealership located in Lighthouse Point, Florida (hereinafter referred to as the "Dealership"). Various problems developed with the vehicle which Petitioner reported to the Dealership, but the Dealership was unable to rectify within 18 months of the date of purchase. During this 18-month time frame Petitioner drove the vehicle less than 24,000 miles. Several of the problems that Petitioner reported during the first 18 months of her ownership of the vehicle still persist today. In June or July of 1993, Petitioner began considering the possibility of seeking arbitration under the State of Florida's "Lemon Law." To find out more about her rights, she obtained from a friend, and reviewed, a Florida state government publication on the "Lemon Law." In September of 1993, Petitioner sent a completed Motor Vehicle Defect Notification form to the Dealership requesting that it "make a final attempt to correct the . . . reported . . defects." On November 12, 1993, Petitioner brought the vehicle to the Dealership for such repairs to be made. When she picked up the vehicle five days later, she discovered that the defects she had reported had not been remedied. Dissatisfied with these results, Petitioner telephoned the Department and asked to be sent a Request for Arbitration form. She received the form on November 29, 1993. Petitioner then proceeded to gather the documentation that she needed to fill out the form. After gathering this documentation, Petitioner telephoned the Department a second time because she had some questions regarding certain items on the form. Her questions having been answered by the Department representative to whom she spoke, Petitioner completed the form and, on December 2, 1993, mailed the completed form to the Department. The Department received the completed form on December 6, 1993. At no time did Petitioner, a layperson acting without the benefit of legal counsel, ever intend to forfeit her right to request arbitration under Chapter 681, Florida Statutes. She was not under the impression, nor did the Department representatives to whom she spoke give her reason to believe, that if she failed to file her request for arbitration on or before November 23, 1993, her inaction would be deemed a waiver of her right to request arbitration under Chapter 681, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding Petitioner's request for arbitration to have been timely filed and therefore not subject to dismissal on the ground of untimely filing. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of May, 1994. 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 11th day of May, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-0755 The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the parties in their post-hearing submittals: Petitioner's Proposed Findings Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted and incorporated in substance. 4-5. Rejected as findings of fact because they are more in the nature of conclusions of law. 6-7. Accepted and incorporated in substance. Rejected as a finding of fact because it is more in the nature of a summary of evidence adduced at hearing than a finding of fact based upon such evidence. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony; Second sentence: Accepted and incorporated in substance. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. The Department's Proposed Findings 1-4. Accepted and incorporated in substance COPIES FURNISHED: Robert Feldman, Esquire Berman & Feldman 2424 Northeast 22nd Street Pompano Beach, Florida 33062-3099 Barbara Edwards, Esquire Department of Agriculture and Consumer Services 515 Mayo Building 2002 Old St. Augustine Road, B-12 Tallahassee, Florida 32399-0800 Honorable Bob Crawford, Commissioner 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
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 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 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
The Issue Whether Petitioner is entitled to arbitration under Chapter 681, Florida Statutes, Florida's "lemon law."
Findings Of Fact Petitioner took delivery of the motor vehicle at issue on December 31, 1996, at which time she received information on the requirements of Florida's "lemon law." Petitioner began to have trouble with the vehicle almost immediately. She notified the dealer that there was a serious problem, and Palm Kia in Ocala, Florida, performed some repairs. The Ocala dealer's repair shop did not inform her that the problem was a computer failure. Sometime during the next 18 months, there was a second period during which the car was in some repair shop. Petitioner first contacted the Department on January 8, 1999, by telephone. She was informed that the statutory time period for requesting arbitration under Florida's "lemon law" had expired, and the suggestion was made that she try contacting the Better Business Bureau. Petitioner testified that she would have filed a request for arbitration with the Department in January 1999, if the Department had not referred her to the Better Business Bureau. Petitioner signed her first and only written request for arbitration on February 2, 1999. This written request for arbitration by the Board was received by the Department on February 11, 1999. In her written arbitration request, Petitioner indicated that her vehicle had reached 24,000 miles "around the end" of 1997. However, at formal hearing, Petitioner confirmed that on January 19, 1998, the mileage on her vehicle was 32,763. In her written arbitration request, Petitioner did not provide proof that she had provided written notice of the alleged defect to the manufacturer, Kia Motors, within the "lemon law" rights period. Petitioner testified that sometime in the 18-month period specified by Florida's "lemon law" she had telephoned the manufacturer to complain about her car. However, Petitioner also testified that she did not notify the manufacturer by certified letter of the nonconformity until October 1998. Petitioner testified that on December 28, 1998, Gatorland Toyota in Gainesville, Florida, requested that the motor vehicle be towed to them. The motor vehicle had been towed the previous day, Sunday, December 27, 1998, to Billy Shell's Garage because Kia was closed and the motor vehicle could not be locked away. The motor vehicle was not diagnosed by Gatorland Toyota as having a computer problem until the first part of January 1999. Petitioner took possession of her vehicle in January 1999. At that time, she notified the dealer by telephone that the engine light was on. The car has continued to have difficulties.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Department of Agriculture and Consumer Services enter a final order upholding the February 25, 1999 denial of Petitioner's request for arbitration before the Florida New Motor Vehicle Arbitration Board. DONE AND ENTERED this 3rd day of August, 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 3rd day of August, 1999.
