The Issue The issue in this case is whether Respondent properly denied Petitioners' request for arbitration before the Florida New Motor Vehicle Arbitration Board.
Findings Of Fact Respondent is the state agency charged with the responsibility to receive and evaluate customer complaints and requests for arbitration in disputes with automobile manufacturers and dealers doing business in the state of Florida. Respondent's duty includes determining whether a request for arbitration qualifies under Section 681.109, Florida Statutes, for referral to the Florida New Motor Vehicle Arbitration Board. Petitioners took delivery of a new Ford motor vehicle on February 3, 1992. Thereafter, Petitioners began having problems with the automobile's engine, windshield wipers, driver's window and power steering. Petitioners reported these problems to the authorized service agent for the first time on or about January 13, 1993. The mileage on the automobile was approximately 11,000 miles at that time. The authorized dealer attempted to repair the subject motor vehicle on January 13, 1993, February 9, 1993, and December 1, 1993. In January of 1994, the automobile had been operated for 24,000 miles. The authorized dealer again attempted to repair the subject vehicle on March 9, 1994. Petitioners completed a Vehicle Defect Notification on August 15, 1994. The purpose of this notice was to inform the manufacturer of the unsuccessful repair attempts. Ford Motor Company received this notice on August 18, 1994. The mileage on the automobile at that time was 29,569 miles. On August 23, 1994, the authorized dealer made a final attempt to repair the subject automobile. At all times material to this proceeding, Ford Motor Company participated in a state certified dispute settlement program. On October 5, 1994, Petitioners completed a Dispute Settlement Board Application. The Dispute Settlement Board received Petitioners' application on October 17, 1994. Petitioners took their automobile to the authorized dealer on October 27, 1994, because the engine light was on. The Dispute Settlement Board considered Petitioners' case on November 17, 1994. By letter dated November 19, 1994, the Dispute Settlement Board notified Petitioners that Ford Motor Company would repair the automobile's window and windshield wipers with no expense to Petitioners. The Dispute Settlement Board also informed Petitioners that Ford Motor Company would not be required to repair the engine, speaker, and rear view mirror concerns because, according company and authorized dealer reports dated October 31, 1994, those problems were resolved. On December 17, 1994, Petitioners completed a Request for Arbitration form. Respondent received this request on December 22, 1994. Respondent's letter of January 23, 1995, informed Petitioners that their arbitration application was not properly documented concerning the vehicle finance agreement. Respondent directed Petitioners to re-file their application with the proper documentation. Respondent also advised Petitioners that the application might be rejected as untimely. On or before February 3, 1995, Petitioners re-submitted their arbitration application. Respondent rejected Petitioners' arbitration application as untimely. Subsequently, Petitioners filed a request for an administrative hearing to contest the denial of their application. Upon receipt of Petitioners' request for administrative hearing, Respondent reviewed Petitioners' file again. After this review, Respondent sent Petitioners a May 25, 1994, letter which erroneously determined that Petitioners' request for arbitration was eligible for referral to the Florida New Motor Vehicle Arbitration Board. This letter correctly determined that the subject vehicle reached 24,000 after January 1, 1994. However, it incorrectly determined that the Lemon Law rights period had been extended to January 1, 1995. By letter dated June 8, 1995, Respondent corrected its erroneous decision, withdrew the letter of May 25, 1995, and reinstated the letter of February 3, 1995. The initial Lemon Law rights period expired on August 3, 1993, eighteen (18) months after the date of delivery of the subject motor vehicle. Therefore it is irrelevant that the car did not accumulate 24,000 miles until January of 1994. Respondent correctly extended the initial Lemon Law rights period for six (6) months, until February 3, 1994, because: (1) Petitioners notified the authorized dealer about the automobile's nonconformance with warranty within the initial Lemon Law rights period; and (2) The authorized dealer did not cure the defects within the initial Lemon Law rights period. In order to be eligible for arbitration, Petitioners had to file their claim with the certified dispute settlement board within six (6) months of the expiration of the extended Lemon Law rights period which, in this case, was August 3, 1994. Petitioners were not entitled to file their request for arbitration within thirty (30) days after final action of the certified dispute settlement procedure because they did not even start that procedure until the time to file a request for arbitration had expired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioners' Request for Arbitration by the Florida New Motor Vehicle Arbitration Board on grounds that the request was not timely. DONE AND ENTERED this 26th day of February, 1996, in Tallahassee, Florida. SUZANNE HOOD, HEARING OFFICER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-4772 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on Respondent's Proposed Findings of Fact. Respondent's Proposed Findings of Fact 1-11 are accepted in substance as restated in Findings of Fact 1-20 of this Recommended Order. COPIES FURNISHED Carlton and Patricia Jones 804 Pheasant Court West Jacksonville, FL 32259 Rhonda Long Bass, Esquire Department of Agriculture and Consumer Services Mayo Building, Room 515 Tallahassee, FL 32399-0800 The Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810
The Issue The issue 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's arbitration request was timely filed.
Findings Of Fact Petitioner purchased his vehicle, a 1991 Ford F-350 Supercab XLT Lariat from Bartow Ford in Bartow, Florida on September 4, 1990. At the time of purchase, the odometer read less than 100 miles. Petitioner applied for arbitration on April 8, 1994. At the time of Petitioner's arbitration request, the vehicle had been driven approximately eighty-three thousand (83,000) miles. Petitioner's problems with his vehicle center around the automatic transmission. Respondent's vehicle reached twenty-four thousand (24,000) miles on or about December 15, 1991. On April 18, 1994, Respondent notified Petitioner that his arbitration request was untimely filed and was being denied. The Motor Vehicle Sales Warranty Enforcement Act a/k/a the "Lemon Law", which is set forth in Chapter 681, Florida Statutes, is administered jointly by the Respondent and the Florida New Motor Vehicle Arbitration Board, Department of Legal Affairs. Respondent is responsible for initially reviewing an application to determine whether or not it is facially appropriate and to make a determination as to whether the applicant is, or is not, "potentially entitled to relief". Based on Respondent's determination that Petitioner's request was untimely filed, the request was denied on April 18, 1994. Petitioner's vehicle initially developed a transmission problem within six thousand seven hundred and seven (6,707) miles. The first service repair came on or about January 15, 1991. Petitioner returned the vehicle with the same problem on or about August 14, 1991 at which time the vehicle odometer read twenty-two thousand one hundred six (22,106) miles. Petitioner took the vehicle for repairs on three subsequent occasions and on each occasion the manufacturer rebuilt or replaced the transmission. Petitioner continues to have problems with his transmission and the manufacturer repairs the vehicle whenever it is brought in for service under the waranty. James D. Morrison, Respondent's supervisor for its "Lemon Law" section, reviewed Petitioner's file and acted on Petitioner's arbitration request. As noted, the request was filed on April 8, 1994. Morrison's review confirmed that Petitioner purchased his vehicle on September 4, 1990. Based on Morrison's calculations, Petitioner had to timely file his arbitration request within eighteen months of the date of purchase or twenty-four thousand (24,000) miles. Morrison used the most extended filing period by referring to the date of purchase and counting forward eighteen months which derived the date of March 6, 1992. Morrison granted Petitioner an additional extension of six months in compliance with extensions allowed if a defect occurs during the "lemon law" period. By granting Petitioner these extensions and the most extended allowable filing period within which the filing had to have been made, all arbitration requests by Petitioner, to be timely filed, had to occur on or before December 4, 1992.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent, the Department of Agriculture and Consumer Services, enter a final order denying Petitioner's request for Lemon Law arbitration as it was untimely filed. DONE AND ENTERED this 28th day of October, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 28th day of October, 1994. COPIES FURNISHED: Paul G. LaPlaca Post Office Box 787 Valrico, Florida 33594 Barbara R. Edwards, 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, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issue in this case is whether Respondent, the Department of Agriculture and Consumer Services, is estopped from denying Petitioners' request for arbitration under Florida's Motor Vehicle Warranty Enforcement Act, Chapter 681, Florida Statutes.
Findings Of Fact The Parties. Petitioners, William and Margarent Newell, are husband and wife. The Newells reside in Lake City, Florida. Respondent, the Department of Agriculture and Consumer Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. Among other things, the Department is responsible for the receipt and evaluation of complaints and requests for arbitration involving disputes between automobile dealers and manufacturers doing business in Florida and the citizens of the State of Florida. See Chapter 681, Florida Statutes. The Newells' Automobile Purchase. On August 6, 1993, the Newells took possession of a new Dodge Colt (hereinafter referred to as the "Colt"). The date the contract of purchase was signed, and, therefore, the date of purchase, was August 9, 1993. Stipulated Facts. The Colt was purchased from Sunbelt Chrysler (hereinafter referred to as the "Dealer"), in Lake City, Florida. The Newell's Experience with the Colt and the Department's Advice. During the first week after taking possession of the Colt, Ms. Newell began to experience trouble with the automatic transmission. The transmission would "slip" resulting in the engine "winding out". On August 14, 1993, Ms. Newell took the Colt to the Dealer and reported the transmission problems. An employee of the Dealer took the Colt for a test ride and told Ms. Newell that he found nothing wrong with the transmission. Ms. Newell was told to bring the Colt back if she continued to experience trouble with the transmission. No documentation of the August 14, 1993 visit with the Dealer was provided to Ms. Newell by the Dealer. Ms. Newell's testimony concerning the date and incident was unrefutted. The Newells continued to experience problems with the transmission. On September 23, 1993, Mr. Newell took the Colt back to the Dealer and reported the transmission problem again. This time the Colt was left with the Dealer. The Dealer returned the Colt to the Newells on September 23, 1993 and told them that no problem was experienced or discovered with the transmission. Again, the Dealer told the Newells to bring the Colt back if they experienced further trouble. No documentation of the September 23, 1993 visit with the Dealer was provided to the Newells by the Dealer. The Newells' testimony concerning the date and incident was unrefutted. Mr. Newell took the Colt back to the Dealer for the third time on September 27, 1993. This time the Colt was kept overnight by the Dealer. The Colt was returned September 28, 1993. Again, no problem with the transmission was found by the Dealer. The Dealer provided documentation to the Newells of the September 27, 1993 effort at repair. On April 8, 1994, after continuing to experience problems with the Colt's transmission, Mr. Newell contacted a representative of the Department in an effort to gather information about how to file a claim under Florida's Vehicle Warranty Enforcement Act, Chapter 681, Florida Statutes. The Department's representative told Mr. Newell that he would need "documentation" of a minimum of three repair attempts on the Colt by the Dealer before a claim could be filed. What constituted "documentation" was not explained, but it was resonable for Mr. Newell to conclude that written documentation from the Dealer of three attempts was required. Mr. Newell only had documentation of one repair attempt from the Dealer as of April 8, 1994. Mr. Newell was not told that the two undocumented repair attempts of August 14, 1993 and September 23, 1993, could also qualify as repair attempts if Mr. Newell provided an affidavit stating that repair attempts were made on those dates. In reasonasble reliance on the information provided by the Department to Mr. Newell on April 8, 1993, the Newells did not file a claim with the Department. On May 25, 1994, the Colt had been driven 24,000 miles. This constituted the end of the "Lemon Law rights period" as used in Section 681.109, Florida Statutes, and as defined in Section 681.102(9), Florida Statutes. (Stipulated Facts). The transmission continued to malfunction after April 8, 1993. On July 21, 1994, the Newells had the Colt serviced for the transmission problem. They received their second "documentation" at this time from the Dealer. On October 12, 1994, the Newells had the Colt serviced again for the same problem. The transmission had to be rebuilt on this occassion. The Newells received their third "documentation" at this time from the Dealer. Despite having three "documentations" of repair attempts as of October 12, 1994, the Newells did not file a claim with the Department at that time. The Newells' reliance on the representations of the Department made on April 8, 1994, would not, therefore, reasonably explain why they did not file a claim upon receiving the documentation that they believed was necessary on October 12, 1994. Reliance on the Department's representations of April 8, 1994, does not explain or justify the Newells lack of complaince with the time requirements for filing a request for arbitration. On or about January 6, 1995, Mr. Newell again spoke with a representative of the Department concerning this matter. Mr. Newell explained that he had the three repair documents that he had been told he needed. He had also completed a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board which he intended to file with the Department. Mr. Newell was incorrectly told, however, that the time for filing the request had expired. In reliance upon this representation, Mr. Newell again failed to file the request for arbitration. On January 25, 1995, the Newells sent notice to the manufacturer of their problem with the Colt. On February 14, 1995, a representative from the manufacturer inspected the Colt. Again, nothing was found wrong with the rebuilt transmission. On May 25, 1995, the statutory period for requesting arbitration expired. The Newells were entitled to a six-month extension from May 25, 1994, to November 25, 1994, pursuant to Section 681.104(3)(b), Florida Statutes, because they had reported the problem with the transmission during the original Lemon Law rights period and it had not been cured. Pursuant to Section 681.109(4), Florida Statutes, the Newells had six-months after the end of the extended Lemon Law rights period, or from November 25, 1994 to May 25, 1995, to file their request for arbtiration. On September 1, 1995, the rebuilt transmission on the Colt again burned up. The Colt has remained parked since that date through the date of the hearing in this case. The Newells' Request for Arbitration. On September 28, 1995, after again speaking to a representative from the Department, the Newells filed a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board with the Department. This request was filed just over four months after the deadline for filing the request expired. The Department denied the request by letter dated October 11, 1995, based upon the Department's determination that the request was untimely.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department accepting the request for arbitration filed by William and Margaret Newell. DONE AND ENTERED this 22nd day of February, 1996, in Tallahassee Florida. LARRY J. SARTIN, 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 February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5938 The Department has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Fahami did not file a proposed order. The Newells' Proposed Findings of Fact Accepted in 1. Accepted in 2. Accepted in 3. Accepted in 5. Accepted in 6-7. Accepted in 8-9. Accepted in 11-12. Accepted in 14. 9-10 Accepted in 15. Accepted in 16. Hereby accepted. Accepted in 17. Hereby accepted. Accepted in 19-20. See 22. Accepted in 26. Accepted in 24. Accepted in 25. Accepted in 26. Accepted in 27. The Department's Proposed Findings of Fact Accepted in 2. Accepted in 26. Accepted in 3 and 18. Accepted in 18 and 24. 5-6 Accepted in 24. Not supported by the weight of the evidence. Petitioners' testimony constitutes unrefutted, credible evidence that they made repair attempts priot to September 27, 1993. See 14. Not relevant. The publication was not offered into evidence. Therefore, the evidence failed to prove what information the publication included. The significant phone conversation took place on April 8, 1994. While the phone bills were not offered into evidence, Petitioners' unrefutted, credible testimony was sufficient to prove that the phone call took place. 11 See 14-16. 12 Accepted in 15-17. 13-14 Hereby accepted. Accepted in 23. Not supported by the weight of the evidence. 17-18 Hereby accepted. But see 17 and 22. Accepted in 26. Accepted in 27. COPIES FURNISHED: John K. McPherson, Esquire 703 North Main Street Gainesville, Florida 32601 Rhonda Long Bass, Esquire Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Bob Crawford, Commissioner Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue Whether the Petitioners' Request for Arbitration by the Florida New Motor Vehicle Arbitration Board should be granted or denied.
Findings Of Fact Pursuant to Section 681.109, Florida Statutes, Respondent's Division of Consumer Services is the state agency in Florida charged with the responsibility to receive and evaluate consumer requests for arbitration pursuant to Chapter 681, which is officially known as the Motor Vehicle Warranty Enforcement Act, but which is more commonly referred to as the "Lemon Law". As part of its responsibilities, the Division of Consumer Services determines whether complaints it receives from consumer against manufacturers pursuant to the "Lemon Law" qualify for referral to the Department of Legal Affairs for further proceedings before the Florida New Motor Vehicle Arbitration Board. 1/ On March 29, 1995, Respondent received and filed Petitioners' Request for Arbitration under the provisions of the Lemon Law. Section 681.102(9), Florida Statutes, defines the "Lemon Law rights period" as being ". . . 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 first occurs." The automobile that is the subject of Petitioners' complaint is a Toyota Camry. The Petitioners took delivery of this vehicle on July 25, 1992, the date they leased the vehicle from a Toyota dealer. Eighteen months from July 25, 1992, is January 25, 1994. It was not until September 1, 1994, that Petitioners put 24,000 miles on the vehicle. The initial Lemon Law period, as defined by Section 681.102(9), Florida Statutes, expired for the subject vehicle on January 25, 1994. Petitioners made complaints to the dealer prior to January 25, 1994, that remained uncured after January 25, 1994. Because of those complaints, the Respondent assumed that the Lemon Law period was extended for an additional six month period pursuant to Section 681.104(3)(b), Florida Statutes. Considering the evidence in the light most favorable to the Petitioners, the Respondent determined that the extended Lemon Law period expired July 25, 1994. It is found that the extended Lemon Law period for the subject vehicle expired on or before July 25, 1994. Pertinent to this proceeding, Section 681.109(4), Florida Statutes, provides that a consumer must request arbitration before the Arbitration Board within six months after the expiration of the extended Lemon Law rights period. Because of that provision, the Petitioners had until January 25, 1995, to file its request for relief under the Lemon Law. The request for relief under the Lemon Law, first filed by Petitioners on March 29, 1995, was not timely.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order that denies the Petitioners' Request for Arbitration by the Florida New Motor Vehicle Arbitration Board on the grounds that the request was not timely. DONE AND ENTERED this 19th day of October, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 19th day of October, 1995.
