The Issue Is Petitioner entitled to arbitration under the Florida "Lemon Law," Chapter 681, Florida Statutes, concerning a 1996 Mitsubishi Diamante which he leased on June 26, 1997.
Findings Of Fact Petitioner took possession of a 1996 Mitsubishi Diamante motor vehicle on June 26, 1997. Petitioner leased the vehicle from the Kelly Mitsubishi dealership in Jacksonville, Duval County, Florida. This was not a lease/purchase agreement. There appears to be no dispute that the vehicle was leased primarily for personal, family, or household purposes. The vehicle was financed by Auto Lease in a manner similar to that of a third party lender bank. Auto Lease paid the full amount of the lease to Kelly Mitsubishi and was to collect incrementally from Petitioner over the lease period. The vehicle required repair of warranty-covered parts and functions (to-wit: brakes) for non-conformity to the warranty on three occasions within the "Lemon Law rights period," as defined by Section 681.102(10), Florida Statutes. Such non-conformity was timely reported to the manufacturer within the Lemon Law rights period, and the manufacturer failed to repair the nonconformity or respond with a dispute settlement procedure, as provided in Section 681.108, Florida Statutes. On or before July 20, 1998, Petitioner returned the leased vehicle to Auto Lease, before the end of the lease term, and notified the manufacturer (Mitsubishi) of said return. This written notification also claimed Petitioner's right to compensation under Florida's Lemon Law and asked the manufacturer to purchase the returned vehicle for the amount still owing on the lease. The manufacturer did not honor such request. Auto Lease has made demand upon Petitioner for the sum of $27,531.05, as the purchase price remaining due under the lease, or for the difference between that sum and the price for which the vehicle would sell at auction. In the fall of 1998, Petitioner sent the manufacturer (Mitsubishi) a second letter notifying it that the vehicle had been turned over to the physical possession of Auto Lease, the third party lender, and that Petitioner would hold the manufacturer responsible for the deficiency as part of his damages under the Lemon Law. On September 21, 1998, Petitioner timely applied for arbitration, pursuant to Section 681.109, Florida Statutes, on a form prescribed by Respondent DACS. At all times material to the issues herein, Respondent DACS was the state agency responsible for the receipt and evaluation and, when appropriate, the referral of consumer Requests for Arbitration to the Florida New Motor Vehicle Arbitration Board conducted by the Attorney General of the State of Florida. On September 24, 1998, Respondent timely rejected the application in writing as provided in Section 681.109(6), Florida Statutes, as insufficient to qualify for relief, because Petitioner was no longer in possession of the vehicle. Petitioner timely requested formal hearing of such rejection on October 13, 1998.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order referring this cause to the New Motor Vehicle Arbitration Board for arbitration. DONE AND ENTERED this 5th day of May, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1999. COPIES FURNISHED: Mike E. Jorgensen, Esquire 7555 Beach Boulevard Jacksonville, Florida 32216 Howard C. Holtzendorf, Esquire Angela Dempsey, Senior Attorney Department of Agriculture and Consumer Services Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Bob Crawford, Commissioner Department Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The issue 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 A notice to show cause dated February 21, 1990, alleges that Respondent licensee sold beer to a person under the age of 21 on three occasions. The issue for determination is whether those allegations are true, and if so, what discipline is appropriate.
Findings Of Fact At all times material, Respondent, Convenience Alley, Inc. held alcoholic beverage license number 15-019272-APS, for the premises located at 5020 Minton Road NW, Palm Bay, Brevard County, Florida. On Saturday April 29, 1989, at the request of the City of Palm Bay Police Department, the Division of Alcoholic Beverages and Tobacco (DABT) participated in a joint operation with the Palm Bay police and the City of Melbourne police. The law enforcement agencies had received a series of complaints regarding the sale of alcohol to minors in the Palm Bay area. In the early evening, sometime between 6:00 p.m. and 7:00 p.m., Amy Dvorak, a 17-year old underaged operative working with Sgt. Gordon Myers, an investigator with DABT, entered Respondent's licensed premises and purchased a sealed 6-pack of Budweiser beer from the clerk, Lisa McCormick. The clerk did not ask Ms. Dvorak's age and did not request her identification. Like all other underaged operatives working with DABT, Ms. Dvorak had parental permission to participate. She wore light makeup and appeared to be under 21 years of age at the time of the operation. She was casually dressed and her face and hair were fully exposed. Ms. Dvorak was instructed to carry legitimate identification and to produce it, or respond truthfully if requested. Convenience Alley is primarily a drive-through establishment where most customers are served while they wait in their automobiles. There is a walk-in entrance, however, and Ms. Dvorak made her purchase on foot. After exiting the premises, she gave the beer to the waiting law enforcement officers. The evidence was marked and placed in the inventory of the Palm Bay Police Department, where it was later destroyed in accordance with the department's policy of destroying evidence that is over one year old. Palm Bay Police Department property report #89-08883, maintained by Officer P. Scholem, documents the disposition of the 6-pack of beer. Melbourne Police Detective Ronald King observed the sale to Ms. Dvorak. Afterwards he approached the clerk, Lisa McCormick, under direction of Palm Bay Police Detective Paul Scholem and arrested her for unlawful sale to a minor. On May 3, 1989, Sgt. Myers mailed an "official notice" to the licensee, Convenience Alley, stating that the arrest had been made and warning that future violations could result in a charge against the license. On November 21, 1989, around 6:50 p.m. Sgt. Myers revisited Convenience Alley with another underage operative, James Core, Jr. As Sgt. Myers stood outside in the shadows, the youth drove through in his own vehicle and purchased a 6-pack of Budweiser beer. James Core was 19 years old and was attending the local police academy at the time. He was clean-shaven and looked his age. As he made the purchase, the clerk laughingly said to him, "Shouldn't I be checking your I.D.?" He responded, also in a joking manner "Yes, ma'am." Nothing more was said, and Core did not offer his license. After the purchase, James Core drove into the parking lot and gave Sgt. Myers the beer and change from the $10.00 he had been given for the purchase. Sgt. Myers went into the establishment and issued an arrest citation to Valerie Britts, the clerk. DABT sent Convenience Alley a notice, titled "Final Warning" dated November 27, 1989, stating that the next violation would subject the licensee to formal revocation or suspension proceedings. On February 7, 1990, Sgt. Myers returned to Convenience Alley with George Madden, a 20 year old recruit from the police academy, also clean shaven and casually dressed. George Madden drove through in his own vehicle with two beverage agents behind him in their vehicle. He asked for the 6-pack of Budweiser. The clerk returned with the beer and asked for his identification. Madden showed his driver's license; the clerk looked at it and sold him the beer. George Madden's birthdate is 11/30/69. His driver's license reflects this, and is stamped "Under 21", across the front. The stamp, however, obscures one digit of the 11, making his birthdate appear, without close scrutiny, to be 1/30/69. The clerk, Keith Wayne Lewis, read the birthdate as January. Since the incident occurred in February 1990, Lewis figured his customer had just turned 21, notwithstanding the stamp and yellow background on the photograph. A few minutes after the sale Sgt. Myers arrested Lewis. On February 8, 1990 Sgt. Myers sent Convenience Alley a notice of intent to file a notice to show cause, citing the recent, as well as two previous arrests of employees. On each occasion noted above, the store and drive through area were well-lit. The three operatives were appropriately trained and none appeared old beyond his or her years. None had been in the premises before. The DABT has written policies and procedures, dated July 1, 1989, governing the investigation of sales to minors and the use of underage operatives. The agency generally will not proceed against a licensee until there have been three violations, unless the licensee (owner) is on the premises making the sale or observing it. The policy guide suggests that the second sale should be on a different date, time or shift than the first, and within three to eight weeks after the official notice has been issued to the licensee. The third sale should be on a still different date, time or shift than the first two sales, and within three to eight weeks after the letter of final warning has been received by the licensee. The three sales in this case do not conform to those written guidelines. Instead of three sales over a period of approximately two months, this case involves three illegal sales in approximately ten months. Linda Beard is the Vice-president/Secretary and part owner of Convenience Alley, Inc. Her sister-in-law, Barbara Thomas is Treasurer and part-owner. A third owner, Terry Loy, is President and is unrelated. None of the owners was on the premises at the time of the sales which are the subject of this proceeding. The licensee owns only this one location. One of the two women works at the store every day and closes up the premises every night. Respondent did not provide formal training to its employees in the past, but now administers the "responsible vendor" test, which it obtained in March, after the third violation. The store has always had a sign near the cash register facing the clerks, reminding them to check ID's and giving the birthdates by which persons may legally purchase alcohol and tobacco. After the first violation, Linda Beard requested that DABT send her a poster explaining the new format for driver's licenses adopted on July 1, 1988. The poster was sent, but it was a black and white photocopy, and arrived in an envelope with $.10 postage due. The agency provides such aids to licensees as a courtesy. Sgt. Myers offered training to Convenience Alley's employees, but Linda Beard felt that since they were primarily part-time, it would be difficult to schedule the training, so she did not take advantage of the offer. Instead she relied on careful recruiting. The employees were only hired on good recommendations. Keith Lewis, for example, had experience in other convenience stores and is the son of a local police officer. She also admonished the employees to check IDs and warned that no sale is worth an arrest or the loss of a license. The owners now use a colored poster to train the clerks themselves. They also point out to the employees how difficult it is to read the birthday with the "Under 21" stamp superimposed.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That a final order be entered dismissing the February 21, 1990 notice to show cause. DONE and RECOMMENDED this 8th day of October, 1990, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1990. APPENDIX The following constitute rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraphs 3-5. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 14. Adopted in paragraph 7. Adopted in substance in paragraph 18. Rejected as immaterial. Respondent obtained the poster. and 11. Adopted in paragraph 8 and 9. 12. and 13. Adopted in paragraph 14. Adopted in paragraph 9. Rejected as unnecessary. and 18. Adopted in substance in paragraph 11. Rejected as unnecessary. Adopted in paragraph 14. Adopted in paragraph 13. Rejected as unnecessary. Adopted in part in paragraph 12. The date is legible if the observer is looking for second digit; it is not in plain sight. and 25. Rejected as unnecessary. Adopted in paragraph 16. Adopted in paragraph 14. Rejected as cumulative and, as to non-misleading actions, contrary to the weight of evidence. No one lied and each operative followed the specific instructions. However, Operative Core's response was, in the context, sufficiently ambiguous as to mislead the clerk. Respondent's Proposed Findings of Fact ["Point 2"] Rejected as unnecessary. ["Point 3"] Rejected as unnecessary. ["Point 8"] Adopted in substance in paragraphs 17 and 18. ["Point 11"] Adopted in part, as to the response, in paragraph 9, otherwise rejected as unsupported by the evidence. Petitioners were not "out to get" Respondents, according to the evidence in this case. and 6. ["Point 16" and "Point 24"] Rejected as unnecessary. ["Point 26"] Adopted in paragraph 16. and 9. ["Point 33" and "Point 37"] Rejected as unnecessary, except as addressed in paragraphs 12 and 15. COPIES FURNISHED TO: Robin L. Suarez Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Linda J. Beard, Vice-President/Secretary Convenience Alley, Inc. 5020 Minton Road, N.W. Palm Bay, FL 32907 Joseph Sole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Leonard Ivey, Director Dept. of Business Regulation The Johns Building 725 S. Bronough St. Tallahassee, FL 32399-1000
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
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On or about October 1, 1994, Petitioner purchased from Triangle Auto Center Inc., d/b/a Toyota of Hollywood (hereinafter referred to as the "Dealer"), a Broward County, Florida automobile dealer, a used 1994 Chevrolet Cavalier, which had been driven 7,726 miles. Petitioner had been told by the Dealer, before the purchase, that the vehicle had been used by its previous owner "to drive documents to the airport." At the time Petitioner purchased the vehicle, it was still under factory warranty. Thereafter, various problems developed with the vehicle, the worst and most persistent of which involved the vehicle's tires and brakes. These problems have yet to be completely remedied. Petitioner reported the problems she was experiencing with her vehicle to the Dealer. The Dealer told Petitioner that it was unable to help her. At the Dealer's suggestion, Petitioner telephoned and wrote letters of complaint to the manufacturer of the vehicle. The manufacturer advised Petitioner to file a complaint/arbitration request with the Better Business Bureau's Auto Line program (hereinafter referred to as the "BBB program"), an arbitration program in which the manufacturer participates. Petitioner followed the advice she was given and filed a complaint/arbitration request with the BBB program. On September 29, 1995, the BBB program sent Petitioner a letter notifying her that the arbitrator who had heard her case had determined that she was not entitled to any relief from the manufacturer. The letter further advised Petitioner of the following: The enclosed decision is not binding on the consumer. The consumer may reject this decision and, if eligible, may pursue arbitration with the Florida New Vehicle Arbitration Board administered by the Office of the Attorney General. To obtain information about eligibility for the state run program, the consumer should contact the Division of Consumer Services' Lemon Law hotline at 1-800-321-5366. Please be advised that Section 681.109(4), F.S., provides that the consumer must file the request for arbitration within 6 months after the expiration of the Lemon Law rights period, or within 30 days after the final action of a certified dispute-settlement procedure, whichever occurs later. Petitioner rejected the arbitrator's decision. On October 23, 1995, Petitioner filed with the Department a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. By letter dated November 9, 1995, the Department advised Petitioner that "a determination ha[d] been made in accordance with Section 681.109 Florida Statutes to reject [her request because her] vehicle was not purchased new in Florida."
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. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of April, 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 3rd day of April, 1996.
The Issue The issue for consideration in this case is whether Petitioner’s request for arbitration under Florida’s Lemon Law was timely submitted.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Agriculture and Consumer Services, (DOA), was the state agency in Florida responsible for the administration of the Florida New Car Lemon Law. This law provides for compulsory arbitration in those cases where the vehicle qualifies under the terms of the statute. Petitioner, Greco Carreras, purchased a new, 1994 Ford Ranger truck on June 8, 1994 from Ernie Hare Ford in Tampa, Florida. Thereafter, it was necessary for him to take the vehicle in for service, due to transmission and clutch problems. These visits were: March 1, 1995 Howard Smith Ford, OK 20,591 mi. Aug. 15, 1995 Ernie Hare Ford, Tpa., FL 31,935 mi. Jan. 23, 1996 “ “ “ “ “ 37,071 mi. Apr. 1, 1996 “ “ “ “ “ 41,450 mi. May. 20, 1996 “ “ “ “ “ 45,964 mi. Oct. 8, 1996 “ “ “ “ “ 52,521 mi. Petitioner had put 24,000 miles on his vehicle, by his own admission, sometime in May 1995. In any case, from the above dates and mileage points, it is clear that the 24,000 mile point was reached before August 15, 1995 when he had 31,935 miles on it at the time he first brought the vehicle in to the Florida dealer who sold it to him for service. On or about December 9, 1996, Petitioner executed and forward to the DOA a Request for Arbitration by the Florida Motor Vehicle Arbitration Board. This request for was received in the Department on December 12, 1996. Under the provisions of Section 681.102(9), Florida Statutes, the “Lemon Law rights period” is defined 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. Consumers are required to request arbitration within 6 months after the expiration of the Lemon Law rights period, or within 30 days after the final action of a certified procedure, whichever occurs later. Ford Motor Company has no certified procedure in Florida. Therefore, the deadline for filing is six months after the expiration of the rights period. That would have been January 14, 1996 (18 months after Petitioner took delivery of the vehicle) or in May, 1995 (when he reached 24,000 miles on the vehicle, whichever came earlier. In this case, giving Petitioner the benefit of the doubt, his initial rights period was determined to have ended on or before August 15, 1995, when he put 24,000 miles on his car as evidenced by the repair receipt from Ernie Hare Ford reflecting 31,935 miles on the vehicle when it was brought in for service. The initial Lemon Law rights period may be extended for an additional six months if items of nonconformity which are reported to the dealer within the original period, remain uncorrected at the end thereof. The Department assumed that Petitioner qualified for this extension. This extended the time to February 15, 1996. Consumers have up to six additional months after the expiration of the Lemon Law rights period, as extended, to file for relief under the statute. In this case, Petitioner had until August 15, 1996 to file his request for arbitration. The copy of Petitioner’s request which was received into evidence reflects that he signed it on December 9, 1996, and it was received in the Department on December 12, 1996. This is more than three and a half and almost four months beyond the filing deadline in this case, and constitutes the Department’s basis for denial of Petitioner’s request for arbitration. Petitioner claimed at hearing that the reason he filed his request for arbitration was because the vehicle he purchased was a lemon. Though he purchased it new, it has been in the shop for repair of the same problem more than three times. Notwithstanding the wording of Florida’s Lemon Law in the pamphlet he was given at the time he purchased the car, Petitioner has some problem with the wording used and the way the 18 month/24,000 mile criteria are applied. Because of the fact that he had almost 24,000 miles on the vehicle the first time he brought it in for repair on March 1, 1995, less than nine months after he took delivery of it, he feels use of the 18 month criteria would have given him greater opportunity to find out what he needed to do. No doubt, he contends, had he filed for arbitration right after the third visit for the same problem, in January 1996, he would have been timely. However, he was being generous to the dealer in allowing them to try to fix the problem, an unfortunate mistake on his part. Petitioner also claims he was advised by an unidentified representative of the Department with whom he spoke by telephone after the September 1996 repair, (sometime in early December 1996) that he was still within the time constraints of the statute. At that time, he claims, he advised the individual with whom he spoke of the repair history of the vehicle and how many miles the vehicle had been driven. He was, apparently, wrongly advised.
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 10th day of April, 1997, in Tallahassee, Florida. 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1997. COPIES FURNISHED: Greco Carreras 10420 North 22nd Street Tampa, Florida 33612 Rhonda Long Bass, Esquire Florida Department of Agriculture and Consumer Services 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
Findings Of Fact In support of petitioner's application for transfer, one Robert Shepard Pierpont completed respondent's form 710-L, "Personal Questionnaires' signing it in a blank labeled "Signature of Applicant." Mr. Pierpont would like to operate the establishment in Broward County for which the present license transfer is sought. He has invested forty thousand dollars ($40,000.00) in the proposed operation and stands ready to invest another like amount. For some 20 years Mr. Pierpont has owned and operated bars and restaurants. In August of 1976, a minor obtained something alcoholic to drink at a restaurant operated by Mr. Pierpont in Branford, Connecticut. Even though he was unaware of the events at the time, Mr. Pierpont was convicted, on November 10, 1976, of "sales to minor" in the West Haven, Connecticut, Court of Common Pleas, as a result of the incident. Mr. Pierpont has never been convicted of any other violation of any beverage law.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for transfer of license unless, within twenty days, Mr. Pierpont furnishes respondent an affidavit reciting that he is not a corporate officer of petitioner. DONE and ENTERED this 17th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John V. Russell, Esquire 312 S.E. 17th Street Ft. Lauderdale, Florida 33136 Mary Jo M. Gallay, Esquire Staff Attorney 725 South Bronough Street Tallahassee, Florida 32304
