The Issue The issue for consideration in this matter is whether Petitioner's request for arbitration before the Florida New Motor Vehicle Arbitration Board should be denied as untimely.
Findings Of Fact The Department's Division of Consumer Services is the state agency in Florida charged with the responsibility to receive and evaluate requests for arbitration before the Florida New Motor Vehicle Arbitration Board (Board), submitted by purchasers of new motor vehicles in this state. If a request qualifies for arbitration and is timely filed, the matter is referred to the Florida Attorney General for further processing and action. On September 10, 1993, Petitioner took delivery of a new Ford Escort automobile from Ken Marks Ford in Clearwater, Florida. The mileage reflected on the odometer at the time of delivery was 26 miles. Petitioner claims that at the time he took delivery of the vehicle, he was not furnished with a copy of the Attorney General's brochure entitled Preserving Your Rights Under the Florida Lemon Law, nor was he given any other information, either in person or in writing, from the dealer or from anyone else, regarding the operation of the Lemon Law program. However, at hearing he indicated that he had a copy of the pamphlet as early as October 13, 1995, when he signed the Defect Notification form which is included within the pamphlet. The pamphlet clearly outlines the benefits, requirements and time limits pertinent to the program. From the very beginning of his ownership, Petitioner experienced difficulty with the vehicle. His first problem, requiring the replacement of the right head lamp assembly, took place on September 13, 1993, only three days after delivery and continued until December, 1995. He experienced problems with several systems at least three times each. These included squealing brakes, the right seat belt, the alarm light, the tachometer, the gas pedal and the idle. By the time he took the vehicle in for the third time for the most recent problem, the odometer registered 30,710 miles. He claims to have notified the manufacturer in writing of this problem on October 18, 1995. Mr. Maxwell accumulated 24,000 miles on his vehicle on or before January 4, 1995. It was on that date, when he brought the vehicle to the dealer for the third time for the squeaking brakes, the alarm light and the seat belt problems, that the odometer showed 24,035 miles. Even though the initial Lemon law period expired at 24,000 miles, Petitioner was potentially eligible for a six month extension of the original rights period because several complaints registered with the dealer during the initial period remained uncorrected at that time. The six months extension expired on or before July 4, 1995. Under the Florida Lemon Law, consumers are entitled to file for relief under the statute for a period of up to six months after the expiration of the Lemon Law rights period. In this case, because of the six month extension, the filing deadline of six months expired no later than January 4, 1996. In October 1995, Petitioner contacted Ford's Customer Assistance Center and requested information regarding correction of his problems. In response he received a customer satisfaction questionnaire but no assistance with his difficulties. Thereafter, he contacted the Department to request the form for filing the Request for Arbitration on November 11, 1995. Subsequent to the receipt of the Request for Arbitration from the Division, Mr. Maxwell engaged in several telephone negotiations with representatives of Ford Motor Company and received oral settlement offers from the company, including either a replacement automobile or a total refund. When Mr. Maxwell elected to receive a refund, he was told that the Ford representative would get back to him but no one from either Ford Motor Company or Ken Marks Ford ever did. Petitioner believes he was misled by both so that he would thereafter become ineligible for participation in the arbitration program. Ford Motor Company has no state- certified settlement procedure. Petitioner's Request for Arbitration reflects January 6, 1996 as the date of execution. It was received in the Division of Consumer Services on January 10, 1996. It was subsequently reviewed and rejected as untimely by the Division on January 16, 1996.
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 as untimely. DONE and ENTERED this 7th day of June, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1996. COPIES FURNISHED: Paul D. Maxwell 775 Lantana Avenue Clearwater Beach, Florida 34630 Rhonda Long Bass, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, 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.
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 Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Petitioner Edwin Charles O'Malley was a resident of the State of Florida. The Department is the agency charged with the responsibility of screening all requests for arbitration before the Board under Section 681, Florida Statutes, to determine eligibility for arbitration and has the authority to reject a dispute that the Department determines to be outside the scope of the Board's authority. On January 25, 1994, Petitioner took possession of a new 1994 American General Hummer (motor vehicle) in Perrysburg, Ohio from Ed Schmidt Pontiac, Inc., Perrysburg, Ohio. The consideration for the motor vehicle was paid to Ed Schmidit Pontiac, Inc. Although Petitioner referred to this as a "dealer to dealer transfer" there was no Florida dealer involved in the sale or the transfer of title of this vehicle to Petitioner. Upon completing the transfer of possession of the vehicle in Ohio, the Petitioner returned to Florida with the vehicle where he paid the sales and use tax to the State of Florida on the consideration paid to Ed Schmidt Pontiac, Inc. for the vehicle in Ohio. Petitioner also paid the title, registration and Lemon Law fees to the State of Florida. The Petitioner did not pay any sales and use tax, title fees or registration fees to the State of Ohio on the sale of the vehicle purchased in Ohio. On December 28, 1994, the Petitioner filed his Request for Arbitration by the Florida New Vehicle Arbitration Board. By letter dated January 18, 1995, the Department rejected Petitioner's request for arbitration for the following reason: The vehicle was not purchased in the State of Florida and therefore your request is outside the scope of the Florida New Motor Vehicle Board's authority.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. DONE AND ENTERED this 15th day of May, 1995, in Tallahassee, Florida. WILLIAM R. CAVE, 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 15th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1172 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department in this case. Petitioner's Proposed Findings of Fact: The Petitioner elected not to file any proposed findings of fact. Department's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(3); 2(3); 3(4); 4(5); 5(3); 6(6) and 7(7). Proposed finding of fact 8 is a recitation of the statutes and should be included in the Conclusions of Law. See paragraph 10 of the Conclusions of Law in the Recommended Order. COPIES FURNISHED: 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 Edwin Charles O'Malley, Pro se Post Office Box 58 Tallular Falls, Georgia 30573 Barbara R. Edwards, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800
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 The issue for determination in this proceeding is whether Petitioner timely filed her request for arbitration under Chapter 681, Florida Statutes. 1/
Findings Of Fact Respondent is the governmental agency responsible under Chapter 681 for receiving and evaluating consumer complaints and requests for arbitration that are filed against automobile manufacturers and dealers doing business in the state. Respondent is required to determine if a consumer's request for arbitration should be referred to the Attorney General for arbitration. Petitioner is a consumer within the meaning of Section 681.102(4). Petitioner purchased a motor vehicle for personal use and took delivery of the motor vehicle on September 15, 1992 (the "motor vehicle"). 2/ Petitioner filed two requests for arbitration for her motor vehicle. Petitioner filed her first request for arbitration on February 22, 1995. She filed her second request for arbitration on May 16, 1995. By letter dated March 7, 1995, Respondent notified Petitioner that her first request for arbitration lacked certain required information and returned the request for arbitration to Petitioner. Petitioner voluntarily withdrew her first request for arbitration on April 12, 1995. Respondent closed its file regarding the first request for arbitration. On May 16, 1995, Petitioner filed her second request for arbitration. Pursuant to a letter dated May 19, 1995, Respondent denied Petitioner's second request for arbitration on the grounds that it was not timely filed. Petitioner is generally required under Chapter 681 to file her request for arbitration within the time defined in Section 681.102(9) as the "Lemon Law rights period" (the "initial rights period"). The initial rights period expires on the earlier occurrence of two dates. The first date is 18 months from the date of delivery. The second date is the date that the motor vehicle accumulates 24,000 miles. The dealer delivered the motor vehicle to Petitioner on September 15, 1992. Eighteen months from the date of delivery was March 15, 1994. The motor vehicle accumulated 24,000 miles on September 16, 1993. The initial rights period expired on September 16, 1993, because that date occurred earlier than March 15, 1994. The initial rights period is extended, pursuant to Section 681.104(3)(b), for six months if there are any uncured nonconformities (the "extension period"). Petitioner experienced uncured nonconformities in the gear shift mechanism of the motor vehicle. The gear shift arm buzzes when the motor vehicle is driven in a forward gear. The gear shift arm jumps out of gear when the motor vehicle is being driven in reverse. 3/ Petitioner took the motor vehicle in for repair four times for the problem with the gear shift mechanism. The dealer attempted to repair the problem on: August 6, 1992, when the vehicle had accumulated 3,987 miles; September 16, 1993, when the vehicle had accumulated 24,000 miles; 4/ January 9, 1995, when the vehicle had accumulated 38,568 miles; and January 30, 1995, when the vehicle had accumulated 39,087 miles. The dealer never repaired the problem with the gear shift mechanism. The motor vehicle accumulated 24,000 miles on September 16, 1993. The extension period extended the time in which Petitioner was entitled to file her request for arbitration from September 16, 1993, until March 16, 1994. Respondent added 51 days to the time in which Petitioner was allowed to file a request for arbitration to reflect the period of time from the date Petitioner filed her first request for arbitration, on February 22, 1995, until she voluntarily withdrew her first request for arbitration on April 12, 1995. Fifty-one days from the last date of the extension period, March 16, 1994, expired on May 7, 1994. Petitioner filed her second request for arbitration on May 16, 1995, approximately one year after May 7, 1994. Petitioner did not file her second request for arbitration in a timely manner. 5/ Petitioner's second request for arbitration was not filed in a timely manner under the alternative deadline for filing a request for arbitration. Even if it is assumed that the motor vehicle did not accumulate 24,000 miles until 18 months after the date of delivery of the vehicle, Petitioner did not file her second request for arbitration in a timely manner. 6/ The dealer delivered the motor vehicle on September 15, 1992. The initial period of 18 months expired on March 15, 1994. The extension period expired on September 15, 1994. Fifty-one days from the expiration of the extension period was November 5, 1994. Petitioner did not file her request for arbitration until May 16, 1995.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's request for arbitration as not timely filed. RECOMMENDED this 31st day of October, 1995, in Tallahassee, Florida. DANIEL MANRY 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 31st day of October, 1995.
The Issue The issue for consideration in this case is whether Petitioner is eligible to participate in arbitration by the Florida New Motor Vehicle Arbitration Board concerning his purchase of a 1995 Saturn automobile.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Florida Department of Agriculture and Consumer Services, was the state agency responsible for the administration of matters regarding the implementation of the Lemon Law for motor vehicles in this state. Chapter 681, Florida Statutes, deals with motor vehicle sales warranties, and incorporates Florida’s Lemon Law as it is pertinent to this matter. Petitioner, Marshall E. Pitts, III, a resident of Groveland, Florida, purchased a 1995 Saturn SLI automobile on or about March 14, 1995, from Saturn of Orlando. The purchase order/contract for sale bears a date of March 14, 1995. The purchase price of the vehicle was $13,750. Petitioner had a trade-in valued at $8,400, which left a difference of $5,350 to be paid. In his request for arbitration, Petitioner indicated the purchase date as March 16, 1995, and the Department, giving him the benefit of the doubt in calculating the allowable time for filing under the Lemon Law, considered the March 16, 1995, date as the date of purchase/delivery which initiates the running of the time for filing a request for arbitration. The Lemon Law calls for filing for arbitration within 18 months or 24,000 miles of delivery. Therefore, the initial filing deadline was September 16, 1996. The vehicle reached 24,000 miles on the odometer sometime in November 1996. The Lemon Law statute allows an extension of six months for filing if a nonconformity has been reported but not cured by the manufacturer or its representative by the expiration of the Lemon Law period. Petitioner took the vehicle in for repairs to the safety belt three times starting sometime in October 1995. Exact dates are not shown. He also took it in for repairs to the transaxle three times, on March 21, 1996, September 19, 1996, and on January 31, 1997. The trouble with the transaxle was not corrected within the Lemon Law rights period. Because of this, a six-month extension for triple reports of difficulty was implemented. This extended the filing deadline to March 16, 1997. Petitioner was afforded an additional six-months extension because of the wording of the statute which grants an individual six months after the expiration of the Lemon Law Rights period to request arbitration. Application of this additional six months extended the filing deadline to September 16, 1997. Petitioner submitted his request for arbitration on October 29, 1997, and it was received in the Department on November 5, 1997. At the time of filing the request, there were 77,000 miles on the vehicle’s odometer. Petitioner claims he did not receive any notification of his rights under the Lemon Law from the dealer at the time he took delivery of the vehicle. He claims it was only when talking with an attorney late in the process that he learned of the existence of the arbitration procedure. A dealer of new cars is required by law to provide the purchaser of a new vehicle with a copy of the Department’s brochure which outlines the Lemon Law program. Petitioner also recites a litany of complaints regarding the vehicle and the treatment he received from both the selling dealer and the manufacturer. Unfortunately, traumatic as these problems must have been to him, they have no relevance to the issues here.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a Final Order denying Petitioner’s request for arbitration under the Florida Lemon Law as untimely filed. DONE AND ENTERED this 22nd day of April, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1998. COPIES FURNISHED: Marshall E. Pitts, III 3831 Soto Road Groveland, Florida 34736 Rhonda Long Bass, Esquire Department of Agriculture and Consumer Services Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
