The Issue The issue is whether Respondent committed the acts alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Respondent operated a motor vehicle repair shop in Melbourne known as A-New-Carb-O- Tronics. The shop has been registered with the Department since 2004 under registration number MV54037. In December 2005, Janet Shea started having problems with the back hatch of her 2001 Pontiac Aztek. The problems were attributed to the body control module (BCM), which is an electronic device that controls the vehicle's lights, door locks, and window motors. Ms. Shea consulted Respondent about the problems she was having with the Aztek because he had previously done repair work on another one of her vehicles. Respondent told Ms. Shea that he could make the necessary repairs to the BCM, and he picked up the vehicle from Ms. Shea's home to perform the repairs. On January 27, 2006, Ms. Shea paid Respondent $900 for the repairs that he claimed to have done to the BCM. Ms. Shea continued to have the same problems with the back hatch after the vehicle was returned to her by Respondent, so she took it back to Respondent for repairs. On February 14, 2006, Ms. Shea paid Respondent an additional $1,200 for repairs that he claimed to have done to the BCM. Ms. Shea continued to have the same problems with the back hatch after the vehicle was returned to her the second time, so she again took it back to Respondent for repairs. On February 18, 2006, while the vehicle was in Respondent's possession, it was involved in an accident that damaged the fuel pump. Respondent charged Ms. Shea $390 to repair the fuel pump. Ms. Shea continued to have the same problems with the back hatch of the vehicle after Respondent returned it to her the third time at the end of April or beginning of May 2006. At that point, Ms. Shea decided to sell the Aztek, but Respondent convinced her to let him take the car again for another evaluation. Respondent told Ms. Shea that the BCM that he installed must have been defective and that he would replace it under his warranty and that it would cost her nothing. On August 2, 2006, after Respondent failed to return the vehicle and refused to return her calls, Ms. Shea filed a stolen vehicle report with the Melbourne Police Department. During the course of the police investigation, Respondent produced two written invoices for repairs that he purportedly performed with Ms. Shea's authority, including charges for repairs to a 1992 Chrysler LeBaron owned by Ms. Shea's friend, Ron Shultz. Ms. Shea was never given these invoices by Respondent. The first invoice, dated July 13, 2006, was for $1,657. It included $343 of charges for repairs to Mr. Shultz's LeBaron. The remainder of the invoice was for repairs that Respondent claimed to have performed on Ms. Shea's Aztek, including replacement of the BCM. The second invoice, also dated July 13, 2006, detailed the $343 of repairs that Respondent purportedly made to Mr. Shultz's LeBaron. Ms. Shea did not authorize the repairs to Mr. Shultz's vehicle, nor did she authorize the charges for that vehicle to be included on her invoice. The handwritten notations on the invoices, which appear to show that Ms. Shea consented to the repairs, were not written by Ms. Shea, but rather were written by Respondent without Ms. Shea's authority. Ms. Shea did not pay these invoices. Respondent placed a mechanic's lien on Ms. Shea's vehicle for the $1,657 of repairs that he claimed to have performed, but for which Ms. Shea failed to pay. On December 4, 2006, the Circuit Court for Brevard County entered an Order finding the lien to be "wrongful" and declaring it "null and void." On or about December 11, 2006, Ms. Shea recovered her vehicle from Respondent with the assistance of the Melbourne Police Department. Respondent had abandoned the vehicle behind the warehouses near his shop. The vehicle was not in a drivable condition when it was recovered. Respondent had removed belts and other parts that he claimed to have installed on the vehicle. 23. On December 11, 2006, Ms. Shea's vehicle was towed to Lane Pontiac-Buick-GMC (Lane) for an estimate of the repairs needed to make it drivable. The estimate prepared by Lane identified almost $4,400 of necessary repairs, including a new BCM. The estimated charges related to the BCM were approximately $400--$252.46 for parts and $148.42 for labor--which is far less than the $2,100 that Ms. Shea paid Respondent for the repair work that he claimed to have done on the BCM. Ms. Shea filed a complaint with the Department in August 2006 concerning her dealings with Respondent. The complaint was investigated by Garrett Craig Moon, who has approximately eight years of experience investigating motor vehicle repair shops for the Department. On September 21, 2006, Mr. Moon conducted an onsite visit to Respondent's shop. The visit was conducted after 8:00 p.m., because that was during the time Respondent regularly conducted his motor vehicle repair business. During the onsite visit, Mr. Moon requested that Respondent provide the documents supporting any repairs that he made to Ms. Shea's vehicle, including documents showing her authorization for the repairs and receipts for the parts used to complete the repairs. Respondent told Mr. Moon that he did not have the documents at the shop on that date, but he agreed to produce them by fax. Respondent subsequently sent a letter to Mr. Moon by fax, but he did not produce any of the requested records. He told Mr. Moon on December 4, 2006, that he refused to produce any records. Respondent had not produced the motor vehicle repair records for inspection by the Department as requested by Mr. Moon as of the date of the final hearing. On seven separate occasions, Ms. Shea paid Respondent for motor vehicle repairs where the cost of the repair work exceeded $100. Those payments included the $900 and $1,200 payments for repairs to the BCM and the $390 payment for the fuel pump, as well as payments for other repairs. The only invoices that Respondent prepared for the work that he allegedly performed for Ms. Shea were those described above dated July 13, 2006. Respondent did not provide written estimates to Ms. Shea for any of the repair work that he allegedly performed, and at no time did Ms. Shea waive the preparation of a written estimate. The invoices described above did not include odometer readings for Ms. Shea's Aztek or Mr. Shultz's LeBaron, a statement indicating whether anything was guaranteed in connection with the repair work, or the registration number for Respondent's motor vehicle repair shop. Respondent did not appear at the final hearing despite having been given due notice of the date, time, and location of the hearing. Respondent operated a motor vehicle repair shop under registration number MV10590 from 1993 to 2001. Respondent has no disciplinary history with the Department. The Department's records identify only one other consumer complaint against Respondent. Mr. Moon's report states that the other complaint was in 1996 and that it was mediated by a Department investigator.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order that: Finds Respondent guilty of violating Sections 559.905(1), 559.911(1), (5), and (6), 559.915(2), and 559.920(2) and (3), Florida Statutes, as alleged in the Administrative Complaint; Imposes an administrative fine of $12,000; and Revokes Respondent's motor vehicle repair shop registration. DONE AND ENTERED this 19th day of May, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 19th day of May, 2008.
The Issue Whether Respondent committed the acts alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based on the testimony and documentary evidence presented at the final hearing, the demeanor and credibility of the witnesses, and the entire record of this proceeding, the following Findings of Fact are made: Mr. Arthur is the owner of Mustang Speed and Restoration (MS&R), a motor vehicle repair shop. MS&R’s physical address is 12545 44th Street North, Suite D, Clearwater, Florida. 4 Exhibit 9 is a composite exhibit of seven black and white photocopied photographs. Three of the photographs were identified as sand in the back seat of the Jeep; two photographs were of the Jeep parked; one photograph identified a pair of “pink” panties; and one photograph contained two “ZAFUL FOREVER YOUNG” tags. Only the photographs of the parked Jeep and the tags were clear. Mr. Arthur filed a motor vehicle repair registration application to renew MS&R’s license in March 2019. The application contained MS&R’s registration number as MV87835. Additionally, the application contained the following “Application Certification:” I certify that this applicant is aware of and complies with all of the requirements of ss. 559.901-559.9221, F.S., including the repair estimate and disclosure statement required to be given to customers, and I am empowered to execute this application on behalf of the above named [sic] entity or individual. Mr. Arthur’s name was printed below this statement along with his signature (which Mr. Arthur acknowledged during his testimony), his title as “owner,” his phone number, and the date: March 10, 2019. At all times relevant to this case, MS&R held a valid motor vehicle repair shop license. Sometime in 2019, Victor Oddo bought a 2002 Jeep Liberty (Jeep) from M and K Auto. Mr. Oddo secured his vehicle license plate, numbered FL- NBMD06, on the Jeep. Shortly after the purchase, the Jeep was not running smoothly. Mr. Oddo contacted M and K Auto, explained the problem, and he was directed to Respondent. Testimony at hearing did not adequately address the extent of the problem, other than the check engine light was coming on. During another appointment, Mr. Oddo paid Respondent $100 for a valve gasket repair. When shown a copy of the MS&R invoice for the valve gasket repair, Mr. Arthur confirmed it was an MS&R invoice but, testified he had “never seen that invoice, no. I don’t know anything about a valve gasket repair.” In January 2020, the Jeep’s check engine light kept coming on. Mr. Oddo brought the Jeep to Respondent. Mr. Arthur sent Mr. Oddo to a different repair shop, Carl and Sons Repair Shop (C&S). Based on information provided, Mr. Oddo believed the repair would cost $1,000 if done by C&S. On Wednesday, January 15, 2020, Mr. Oddo returned his Jeep to MS&R after Mr. Arthur stated he could do the repair for $380. The Jeep remained in Respondent’s possession until February 6, 2020, a period of 22 days. Mr. Oddo communicated with Mr. Arthur via telephone and text messages. Over the course of the 22 days the Jeep was at MS&R, Mr. Oddo sought information about the status of the Jeep’s repairs and when it would be returned to him. Respondent did not provide Mr. Oddo a written estimate for any work to be completed on the Jeep. At no time did Mr. Oddo waive the preparation of a written estimate. Mr. Arthur repeatedly claimed that the repair would be paid for by M and K Auto, as “the repairs were not done for the - - Mr. Oddo, they were done for the lot.” Mr. Oddo did not authorize Respondent or any of its employees to use his Jeep for personal use. Between January 15, 2020, and February 6, 2020, Mr. Oddo never took physical possession of his Jeep. On Thursday, January 23, 2020, at approximately 1:10 p.m., Mr. Oddo took two photographs of his Jeep parked in front of a Speedway store. The Jeep’s license plate confirmed it was Mr. Oddo’s vehicle. (Pet. Ex.9, pp 31 & 32.) This Speedway store is a block or more away from MS&R. On February 6, 2020, Mr. Oddo picked up the Jeep from MS&R. Respondent did not provide Mr. Oddo an invoice or billing statement for any work that was completed on the Jeep. After picking up the Jeep on February 6, 2020, Mr. Oddo received a parking ticket (Ticket One) in the mail. Ticket One was issued by the City of Tampa for a parking infraction at Ben T. Davis beach.5 The parking 5 A round-trip trek from MS&R’s location to Ben T. Davis beach could not be more than 40 miles. infraction occurred on Saturday, January 18, 2020, at approximately 1:00 a.m., while the Jeep was in Respondent’s possession. The Jeep’s license number on Ticket One confirmed it was Mr. Oddo’s vehicle. Mr. Oddo communicated with Mr. Arthur about Ticket One, and believed Mr. Arthur would pay the $46.00 fine. Later, Mr. Oddo received another parking ticket (Ticket Two) in the mail. Ticket Two was issued by the City of Clearwater for an expired parking meter at a Clearwater beach.6 The parking ticket was issued on January 18, 2020, at 5:11 p.m., while the Jeep was in Respondent’s possession. The Jeep’s license number on Ticket Two confirmed it was Mr. Oddo’s vehicle. Mr. Oddo did not communicate with Mr. Arthur about Ticket Two as by that time, Mr. Oddo had filed a complaint with Petitioner. Petitioner’s Exhibit 9, pages 27 through 29, purports to show sand on the back seat of Mr. Oddo’s Jeep. While it is logical to assume that a vehicle may have sand in it after a trip (or two) to the beach, or for that matter while in Florida as a whole, the black and white photographs are not clear or concise, but are unnecessary. That the Jeep was at each beach is established by the two tickets. After receiving the second ticket, Mr. Oddo checked his Florida Sunpass transponder7 account and discovered two charges while the Jeep was at MS&R for repair. On Thursday, January 23, 2020, at approximately 11 a.m., Mr. Oddo’s transponder account was charged $1.07 for his Jeep traveling southbound on the Bob Graham Sunshine Skyway bridge (Skyway). Later, at 12:25 p.m., Mr. Oddo’s transponder account was again charged $1.07 for the Jeep returning northbound on the Skyway. Mr. Arthur testified that Mr. Oddo’s Jeep was taken for a round-trip test drive to Sarasota, Florida, on January 23, 2020. The round-trip test drive 6 A round-trip trek from MS&R’s location to a Clearwater beach could not be more than 40 miles. 7 Mr. Oddo referred to this as his “Sunshine Skyway pass.” was approximately 82 miles in distance. Mr. Arthur attached a scanner to the Jeep to determine “what the repair needed to be done.” The test drive was also to pick up “a check for a different repair for a car dealer.” Respondent described this test drive using the phrase it “killed two birds with one stone.” Approximately 45 minutes after the Jeep returned from the Sarasota test drive, the Jeep was photographed at the Speedway store front. Mr. Arthur claimed the Jeep was on empty and had to be filled with gas. As provided in paragraph 11 above, Petitioner’s Exhibit 9, pages 31 and 32, are pictures of the Jeep parked in front of the Speedway store, not at a gas pump. Prior to reclaiming his car, Mr. Oddo was led to believe from Mr. Arthur that the Jeep’s timing chain and the check engine light had been repaired. However, that was not the case. Although the timing chain may have been repaired or replaced, the check engine light stayed on. When Mr. Oddo reclaimed his Jeep on February 6, 2020, he claimed there were “approximately a thousand miles added to my odometer.” He failed to substantiate this claim with evidence of the odometer reading on the Jeep when he dropped it at MS&R, compared to the odometer reading when he reclaimed the Jeep. Further, Mr. Oddo confused the issue when he testified: My trip odometer only had 16 miles on it, and I always reset my trip odometer when I fill up my gas tank. My gas tank was empty with 16 miles, so I - - I don’t understand why the trip odometer has to be reset for a test drive at all. Mr. Arthur admitted he never filled out or provided an estimate or invoice for the repair work to Mr. Oddo’s Jeep. Mr. Arthur testified instead that he was under the impression the repair work would be paid for by the car dealer from whom Mr. Oddo bought the Jeep. Mr. Arthur testified: We have an open contract, we are - - no shop under any of the motor vehicle repair under Mr. Williamson,[8] or anybody else, requires the car dealer to come out here and sign the invoice on every job. * * * And no shop that does car dealer wholesale work, auto work, auction work, has the customer - - the car dealer come down out of his office and sign a repair order; it’s a blanket contract, verbal contract. We repair them, they pay their bills, and everybody’s happy. * * * Just in rebuttal, there’s not one car dealership, one repair shop in the world that gets the car dealer or the auction to sign an invoice on every single job. It’s not possible. They’re not going to come down out of their car lot to come down here and sign every - - it’s a blanket contract, verbal contract valid under the State of Florida. Petitioner did not present any disciplinary history regarding Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order that: Finds Respondent guilty of violating section 559.920(3), (12), (13), and (17), as alleged in the AC; Imposes an administrative fine of $4,000; and Directs Respondent to cease using consumers’ vehicles for unauthorized business. DONE AND ENTERED this 25th day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2021. Robert J. Arthur Robert J. Arthur, d/b/a Mustang Speed & Restoration 12545 44th Street North, Suite D Clearwater, Florida 33762 Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Genevieve Hall, Esquire Department of Agriculture and Consumer Services 407 Calhoun Street Tallahassee, Florida 32399 Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Are the allegations of the Administrative Complaint true, and if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: The Department is the agency of the State of Florida responsible for the enforcement of the Florida Motor Vehicle Repair Act. Respondent 98 Trans Service Inc. was, at pertinent times, a corporation doing business as AAL Transmission World. Respondent Michael Crisante, Sr. is the president and owner of 98 Trans Service, Inc. d/b/a AAL Transmission World. Respondent 98 Trans Service, Inc. d/b/a AAL Transmission World (AAL) is located at 5526 North Highway 98, Lakeland, Florida. AAL is registered with the Department as a motor vehicle repair shop that does transmission repair and has been assigned registration number MV-17033 by the Department. AAL advertised to the public a $14.95 coupon special for a multi-point transmission tune-up which included new fluid, clean pan, clean screen, replace gasket, adjust band and linkage, road test, check for leaks and check u-joints. Several witnesses testified that the reason they brought their vehicles to AAL was because they had seen the advertisement for the $14.95 special. On or about May 4, 1993, Lee Baker took his 1982 American Eagle Sport station wagon 4 wheel drive to AAL to be serviced using the $14.95 coupon. Baker was not experiencing any problem with the transmission but was concerned about a particular noise he was hearing while driving the vehicle. Baker left the vehicle with an AAL employee with instructions to service the vehicle using the $14.95 coupon and that if there was any problem to call him. Late the next day someone from AAL called Baker to advise him that there was a problem with the transmission. The next morning Baker went to AAL and was shown some debris (steel shavings, etc.) that supposedly came from his transmission and was told that the transmission needed an overhaul. Baker was not given a repair estimate or disclosure statement form at this time. Baker did not give AAL a written waiver of his right to receive a written estimate. 10 Baker went home, and after discussing the matter with his wife went back to AAL to pick up the vehicle, but was told by AAL that the vehicle was unsafe to drive. After some discussion, AAL told Baker it would cost $300 to overhaul the transmission, and that the transmission would be in first class condition after overhaul. With this assurance from AAL, Baker authorized AAL to overhaul the transmission. Again, Baker was not given a written repair estimate or disclosure statement by AAL. Two days later AAL called Baker and advised him that the torque converter needed an overhaul. After some discussion with AAL about why the torque converter needed an overhaul, Baker, still somewhat confused, told AAL that he would not authorize the torque converter overhaul but to call him when the car was ready. Again, Baker was not given a written repair estimate or disclosure statement by AAL and had no idea what AAL was going to charge for the repair. When Baker went to pick up his vehicle he was presented with a bill by AAL for $697.48 which indicated, along with some minor repairs, that AAL had install a reconditioned automatic transmission, a rebuilt torque converter and replaced the right front axle. The bill, which Baker paid, came to $697.48. Other than this summary repair bill, Baker did not receive a repair estimate or disclosure statement in writing from AAL before AAL proceeded to repair his vehicle. Likewise, Baker has never received from AAL an itemized description of all labor, parts, and merchandise supplied and the costs for such items. On or about September 6, 1994, Peggy Graham took her 1986 Buick to AAL to have the transmission serviced with the $14.95 coupon. Graham had the Buick serviced on a regular basis and the oil changed every 3,000 miles. Prior to taking the Buick to AAL on September 6, 1994 to have the transmission serviced, Graham was not having any trouble with the car or the car's transmission. In fact, Graham had just recently driven the car 4,000 miles while on vacation. John Waterman, Service Manager for AAL, had the transmission pan pulled outside the presence of Graham. Thereafter, Graham was shown some alleged metal shavings that supposedly was in the pan of the transmission when it was pulled, and was told that the car was unsafe to drive. Graham signed a repair estimate and disclosure statement form to the effect that AAL was to give her a repair estimate in writing if the repair costs exceeded $50. Although Graham's final bill on repairing the transmission in the Buick was $901, she was never given a repair estimate even though the amount exceeded the $50 she had authorized. Likewise, Graham was never given an itemized description of all labor, parts, and merchandise supplied and the costs for such items. On February 18, 1994, Evelyn Smith took her 1987 Oldsmobile to AAL to have the fluid changed using the $14.95 coupon. Smith purchased the car in August, 1993, and had experienced no problems with the car or the transmission prior to taking the car to AAL. In fact, the information filled in by Smith on the disclosure statement (Department's exhibit no. 11) on February 18, 1994, indicates that she brought the car in for service and was experiencing no problems with the transmission. Also, the car had been serviced about a month earlier, and there was no indication of any problem with the transmission at that time. Dean Curtis, Service Manager for AAL, test drove the Smith vehicle and advised Smith that there was a problem when shifting from first gear to second gear. Smith had never experienced this problem before with the car's transmission. Curtis then had the transmission pan pulled outside the presence of Smith. Thereafter, Smith was shown some alleged metal shavings that supposedly was in the transmission pan at the time it was pulled, and was also told that the transmission fluid had a burnt smell. Based on her conversation with Curtis, Smith was under the impression that AAL could dismantle the transmission, determine the problem and repair the transmission for $262. With this understanding, Smith signed a repair estimate and disclosure statement form (Department's exhibit no. 11) indicating that she did not require a written estimate so long as the repair costs did not exceed $262, and left the car at AAL for the transmission to be repaired. Although this repair estimate and disclosure statement form (Department's exhibit no. 11) has what might be considered an estimate of labor and parts totalling $1,282.11 on the back, this information was not on the form at the time Smith signed on February 18, 1994. Later, AAL called Smith to advise her that it would cost $1,209.54 to repair the transmission and that if she did not want it repaired that there would be a charge of $262 for the diagnostic work and for reassembling the transmission. Although Smith had understood that the $262 would be the cost of repairs, she authorized AAL to repair the transmission at a cost of $1,209.54, because otherwise she would have wasted the $262. Subsequently, AAL repaired Smith's transmission at a cost of $1,264.69, which Smith paid. On October 13, 1993, Robert Weiss took his 1990 Jeep Cherokee Laredo to AAL to be serviced using the $14.95 coupon. Weiss's only reason for going to AAL was to have the Jeep's transmission serviced using the coupon. Prior to taking his Jeep to AAL for service, Weiss regularly serviced his Jeep and changed the engine oil every six thousand miles. Weiss had never experienced any problem with the Jeep's transmission prior to taking the Jeep to AAL and had never had to have the Jeep's transmission repaired. Weiss left the Jeep at AAL for the service set out in the coupon while he went shopping. Upon returning from shopping, Weiss was informed by an AAL employee that the Jeep's transmission pan contained metal shavings and that the fluid had a burnt smell. Weiss was shown the alleged metal shavings that supposedly were in the Jeep's transmission pan when the pan was removed. Weiss was not present when the transmission pan was removed from the Jeep's transmission. Weiss was informed by this AAL employee that the presence of metal shavings and the burnt smell of the fluid were signs of serious problems, and if not fixed could result in the transmission falling apart. Based upon these representations, Weiss agreed to have the transmission repaired. Weiss was advised verbally as to the cost of the transmission repair but did not sign a waiver of the requirement for a written repair estimate. Weiss did not receive a written repair estimate and did not sign any thing authorizing the repair of the transmission. Weiss did not receive an itemized description of all labor, parts, and merchandise supplied and the costs of such items from AAL. The only document received by Weiss from AAL was a copy of a repair estimate and disclosure form with Weiss' signature on the disclosure statement with no date and with none of choices checked. Weiss' signature does not appear on the authorization for inspection service section or the authorization for repair section. However, Weiss did sign the completion certification section. The final bill in the amount of $1,482.32 was paid by Weiss. On May 25, 1994, Mary Curry took her 1991 Buick Regal to AAL to have the fluid changed using the $14.95 coupon. Curry purchased the Buick in September, 1993. Curry had experienced no problems (no leaking, no slipping or no locking up) with the transmission prior to taking the car to AAL on May 25, 1994. The Buick's odometer showed a reading of approximately 35,000 miles. An employee of AAL took Curry's car back in the service area for service. Subsequently, Curry was shown a transmission pan with metal shavings and a bolt which supposedly was in the Buick's transmission pan when it was removed. Curry was not present when the transmission pan was removed by AAL. Curry was advised by AAL that it would cost $262 to remove, dismantle, inspect parts, reassemble and install transmission. Curry agreed to this and gave AAL written authorization to perform such work. Curry understood that she would be required to pay the $262 even if there was no repair required. After AAL dismantled the transmission, Curry was advised verbally that it would cost approximately $1,000 to repair the transmission. Curry did not waive the requirement for a written estimate. However, AAL did not give Curry a written estimate of the cost of the repairs. The costs ($1,398.95) set out on the back of Department's exhibit no. 15 were not there at the time Curry signed the front of that document authorizing AAL to dismantle, inspect and reassemble the transmission. Curry did not sign the authorization for repairs section on the front of the repair estimate and disclosure form. The final bill for the repair of the transmission was $1,336.45, which Curry paid. Sometime in June, 1995, Dennis Leonis took his 1968 Chevrolet Monte Carlo to AAL to have the transmission fluid changed. Leonis was the original owner of the car which had 200,000 miles on the odometer, but the car was in excellent working condition, with no transmission problems. AAL did not test drive the vehicle, but while the car was at AAL, and out of the presence of Leonis, the transmission pan was pulled. Subsequently, the manager advised Leonis that the pan contained debris (metal shavings) when it was pulled and that the transmission was falling apart. The manager quoted a price of $2,000 to repair the transmission. Dennis was told by the AAL employee that removed the pan that there was nothing wrong with the transmission. Leonis had the transmission pan, with the old fluid, placed back on the transmission and drove to another transmission repair shop to have the fluid changed. Leonis changed the transmission fluid every other week for a total of four times. Leonis drove the car for approximately 30,000 to 40,000 miles without any problems with the transmission. Heidi and Alvie Steelman had a 1983 Buick Regal that had developed a leak in the transmission. On November 23, 1994, the Steelmans took their Buick to AAL for the express purpose of having AAL determine the source of the leak. AAL found the source of the leak to be the O-ring where the dipstick enters the transmission but suggested that the Steelmans allow AAL to change the filter and fluid while in the shop at a cost of $14.00. The Steelmans agreed to have this service but did not agree to have AAL disassemble the transmission. Subsequently, and out of the presence of the Steelmans, AAL pulled the transmission pan on the Steelmans' Buick and showed them some alleged shavings that supposedly was in the transmission pan when it was pulled. AAL advised the Steelmans that the Buick needed a rebuilt transmission. The Steelmans advised AAL that they could not afford a rebuilt transmission and to reassemble the old transmission so they could take the car home. At this point, AAL advised the Steelmans that it would cost $185.00 to reassemble and if they didn't pay that the car would be moved to the AAL lot with the disassembled transmission. AAL advised the Steelmans that AAL could secure a loan for them to pay for the work. Alvie Steelman, assuming he was signing a request for a loan, signed a repair estimate authorization and disclosure statement that at the time of signing did not contain an estimate of the costs of repairs or costs of parts. After AAL's assurance to the Steelmans that a loan would be forthcoming, the Steelmans gave AAL permission to repair the transmission. AAL was unable to secure a loan for the Steelmans. The final bill was $583 which the Steelmans paid with funds borrowed from friends and family. AAL provided the Steelmans with a repair estimate and disclosure form at the time they paid for the repairs. However, this form did not itemize the costs for labor and parts. AAL did not provide the Steelmans with a itemized description of all labor, parts, and merchandise supplied and the costs of such items. AAL did not provide the Steelmans with any paper work until they had paid for the repairs. On June 9, 1995, Clyde Garretson drove his 1983 Chevrolet Truck to AAL. The truck could not be driven in drive gear but could be driven in second gear. Garretson left the truck with AAL with verbal instructions to check out the problem. AAL did not advise Garretson at this time as to the cost for diagnosing the problem and did not present Garretson with a repair estimate and disclosure form to be signed showing the estimated cost of diagnostic work. 41 Later on that day Garretson was advised by AAL, through his wife, that it would cost approximately $950 to fix the transmission. At first, Garretson decided not to have AAL fix the transmission, but when informed by AAL, through his wife, that there would be charge of $295 for diagnostic work, Garretson agreed, through his wife, to have the transmission repaired. Again, AAL did not prepare and present to Garretson a repair estimate for his approval. Furthermore, Garretson did not waive the require for a written repair estimate. The only paper work received by Garretson was the final bill for $1,046.22 which was not an itemized description of all labor, parts, and merchandise supplied and the costs for such items. On June 23, 1995, Daryl Gargus had his 1988 Dodge Ram D50 taken to AAL because the transmission was locked in gear. Gargus did not at any time receive an invoice with an itemized description of all labor, parts, and merchandise supplied and the costs for such items. Furthermore, it was later discovered by Gargus that a new clutch assembly and clutch disc that had been installed in the truck by Gargus had been removed and replaced by used parts. Gargus was told by AAL that the clutch had not been replaced. Also, a practically new direct drive starter that Gargus had observed prior to taking the truck to AAL had been removed and replaced by a used starter. Gargus was not told by AAL that the starter had been replaced. Edgar Pickett, Jr. and his son, Edgar Pickett, III, took the son's 1984 Fleetwood Cadillac to AAL for service and because it was slipping. The Picketts left the car with AAL. Edgar Pickett Jr. testified that he signed a repair estimate with a disclosure form on July 3, 1995, which required AAL to provide an estimate of repairs should the estimate of repairs exceeded $50. However, it appears that the repair estimate and disclosure form was signed by Edgar Pickett, Jr. on July 5, 1995, the date the car was picked up by Edgar Pickett, Jr. after being repaired by AAL. Furthermore, it appears that Edgar Pickett, III signed a repair estimate and disclosure form on June 30, 1995, authorizing diagnostic work and repair work on the transmission. Also, this form (Respondent's exhibit 1) shows an itemized statement of parts, labor and the costs of such items necessary for the repair of the transmission. Troy Spruill took his Dodge Dynasty to AAL for a $14.95 service. AAL test drove Spruill's car and told Spruill that the transmission was slipping from first to second, and that it might have to be rebuilt. Spruill left the car at AAL and went home. Later, AAL called Spruill and gave him a verbal estimate over the telephone of $1,122.83 to repair the transmission. The estimate included a CV joint. Subsequently, Spruill gave AAL authorization to make the repairs covered in the estimate which included the transmission and the CV joint. In fact, on July 19, 1995 Spruill signed a estimate of repairs and disclosure form authorizing the repair so long as the cost did not exceed $1,190.20 which was the cost of the repairs plus tax. Spruill paid AAL $1,190.20 and received a copy of the repair estimate and disclosure form. This form does not show an itemized description of all labor, parts and merchandise supplied and the costs of such items. However, Spruill was verbally furnished this information over the telephone prior to authorizing the repair on July 19, 1995.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that the Department of Agriculture and Consumer Services enter a final order revoking the registration (MV-17033) issued to Respondents' motor vehicle repair shop. RECOMMENDED this 24th day of October, 1996, at Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-66847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1996. COPIES FURNISHED: 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 Lawrence J. Davis, Esquire Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 John L. Woodard, III, Esquire 320 North Magnolia Avenue, Suite A-6 Orlando, Florida 32801
The Issue As to Case No. 96-5539, whether the Respondent, Dynotech Automotive, Inc., committed the violations alleged in the administrative complaint dated October 22, 1996; and, if so, what penalty should be imposed. As to Case No. 96-5463, whether Supertech Automotive, Inc. (the alleged successor to Dynotech) is entitled to registration as a motor vehicle repair shop under the provisions of Section 559.904, Florida Statutes.
Findings Of Fact At all times material to the allegations in this matter, Respondent Dynotech was a motor vehicle repair shop registered under the provisions of Section 559.904, Florida Statutes, located at 2240 North Military Trail, West Palm Beach, Florida. At all times material to the allegations of this matter, Respondent Supertech was an applicant for registration as a motor vehicle repair shop charged with doing business without being appropriately registered, which was also located at 2240 North Military Trail, West Palm Beach, Florida. The Petitioner is the state agency charged with the responsibility of regulating and disciplining motor vehicle repair shops under Florida law. At all times material to the allegations in this matter, Theodore (Ted or Teddy) Russo was the president and manager of Dynotech. Mr. Russo’s home address is listed as 1604 Hollyhock Drive, Wellington, Florida. Prior to June 18, 1996, the Department commenced an investigation of Dynotech based upon suspected acts in violation of Chapter 559, Florida Statutes. In furtherance of the investigation the Department sent investigators with three vehicles to West Palm Beach for use in the operation. One vehicle driven by Investigator Tony Golino went to the Dynotech premises on June 18, 1996. After giving Mr. Russo a story about having just inherited the vehicle and being on the way back to New York, Investigator Golino requested an oil change and Dynotech’s free air conditioner inspection. Immediately prior to taking the vehicle to Dynotech, Investigator Golino’s vehicle had been thoroughly evaluated by a certified mechanic for any repair which might be needed to the air conditioning system. The vehicle, a 1989 Buick, checked out with no problems. On June 19, 1996, when Investigator Golino returned to Dynotech to pick up the vehicle, he was charged $358.94 for the requested oil change, the free air conditioner inspection, and for an evac and recharge together with an “acculmater.” Of the foregoing work, only a charge of $14.95 was required for this vehicle (the oil change cost). Investigator Golino had been verbally advised that if the evac and recharge were necessary the cost for same would be approximately $105.00 or $110.00. No estimate was given to him for the “acculmater” which was charged. Investigator Golino had not been given any written estimate for the work which was to be performed on the Buick. When the Buick was returned for inspection by the Department, Mr. Bullard found that the oil had been changed and that a new accumulater had been installed. Donald Bullard is a certified mechanic with 30 years of experience. An evac and recharge of the air conditioning system is appropriate if the system is not performing within acceptable standards. The evac and recharge is the process of cleaning the freon in order to allow it to do its work more efficiently. The freon is removed from the vehicle (evac), run through a machine for cleaning, then returned to the vehicle (recharge). This process takes less than an hour. An accumulator is a device which takes moisture out of the vehicle. The Buick driven by Investigator Golino did not need a new accumulator. On June 20, 1996, Jack Hill, another investigator with the Department, took a Plymouth van to Dynotech for an oil change and free air conditioner inspection. This vehicle had also been inspected beforehand and had been fully repaired so that it was in proper working order prior to being driven to Dynotech. Dynotech billed Investigator Hill $95.45 for the work performed on the van and alleged that it had added freon to the air conditioning system. No cost should have been billed for the van as a coupon for a free oil change was used. Additionally, the van did not require an evac and recharge nor freon. A third vehicle, a Ford Tempo, was taken to Dynotech by the Department’s investigator Fred Barnsdale on June 19, 1996. Like the others, prior to being driven to Dynotech the Tempo was inspected and evaluated by Mr. Bullard. The air conditioning system worked properly and did not require an evac and recharge. With regard to the Tempo, Dynotech billed for an evac and recharge which were unnecessary. Glen Eakin, Louis Vincent Zauss, and Michael David Baranowsky are certified mechanics formerly employed by Dynotech. All were hired and supervised by Mr. Russo. During their employment with Dynotech, each was instructed by Mr. Russo to perform work which was unnecessary. In some instances customers were billed for work which was not performed. In some instances customers who were to receive free services were advised work had been performed which was not done. Dynotech paid mechanics a flat hourly rate based upon service work performed. Mechanics did not receive compensation for parts sold in connection with repairs. Dynotech billing was reviewed and approved by Mr. Russo. Mr. Russo was aware of the work performed or not performed by Dynotech’s mechanics. Johnni Angel began working at Dynotech to help Mr. Russo out. Ms. Angel came on board as the receptionist/secretary for the company. She resides with Mr. Russo and decided to incorporate Supertech one day after Dynotech was suspended from doing business by the Department. Ms. Angel intended to operate Supertech from the same business location and retained Mr. Russo to continue the management of the premises. All of the mechanics formerly employed by Dynotech now worked for Supertech and continued to answer to Mr. Russo regarding the day-to-day activities of the business. Ms. Angel is the sole owner of Supertech, she obtained a new tax identification number for the business, and opened new bank accounts. All other aspects of the business operation remained as it had when under the Dynotech name. Ms. Angel filed an application for registration as a motor vehicle repair shop with the Department on November 7, 1996. Estimates and invoices from Supertech established that the company had been operating without being registered as required by law. The invoice forms used by Supertech did not contain a statement indicating what, if anything, was guaranteed in connection with the repair work. Such forms also did not contain the time and mileage period for which the guarantee was effective. Supertech’s written motor vehicle repair estimate and disclosure statements did not contain the proposed work completion date; the customer’s intended method of payment; the name and telephone number of another person who may authorize repair work, if the customer desired to designate such person; a statement allowing the customer to indicate whether replaced parts should be saved for inspection or return; or a statement indicating the daily storage charge for the customer’s vehicle after the customer had been notified that the repair work had been completed. Supertech’s application for registration did not contain a State of Florida tax identification number.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter final orders confirming the suspension and revoking the registration for Dynotech, imposing an administrative fine in the amount of $3,000.00, and denying Supertech’s application for registration as a motor vehicle repair shop. DONE AND ENTERED this 2nd day of June, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1997. COPIES FURNISHED: Lawrence J. Davis Senior Attorney Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 James R. Merola, Esquire JAMES R. MEROLA, P.A. 11380 Prosperity Farms Road, Suite 204 Palm Beach Gardens, Florida 33410 Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo building Tallahassee, Florida 32399-0800 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 the allegations of the Administrative Complaint are correct and if so, what penalty should be imposed.
Findings Of Fact The Department of Agriculture and Consumer Services, Bureau of Motor Vehicle Repair, is responsible for enforcement of the Florida Motor Vehicle Repair Act. 737 Trans Service Inc. is a corporation doing business as AAL Transmission World (AAL) at 737 Northwest Sixth Street in Winter Haven, Florida. AAL is registered with the Department of Agriculture and Consumer Services as a transmission repair shop, registration number MV-13472. Fred Crisante is the president of 737 Transmission Service, Inc. Mr. Crisante signed the Department registration forms for 1994 and 1995. AAL advertised a $14.95 transmission special with a coupon in the local telephone book. The special included a transmission tune-up, including new fluid, cleaning of the pan and screen, replacement of gasket, adjustment of bands and linkage, check of U-joints, a road test, and check for leaks. Several witnesses testified that the reason they brought their vehicles to AAL was because they'd seen the telephone book advertisement for the $14.95 special. In October 1994, Shirley Howland Dominy had her 1988 Chevy towed to AAL. The vehicle was not shifting properly into reverse gear. She had the car taken to AAL for diagnosis of the problem. A few days after the car was towed to AAL, she received a telephone call from a man identified as Larry Brinkman, who told her that the transmission repair would cost $1,577. Mrs. Dominy declined to authorize the repair. When Mrs. Dominy went to AAL to retrieve the car, she was told that she had to pay $189 cash to have the vehicle returned. AAL advertised that cash, credit cards and checks would be accepted. Not having the payment in cash, Mrs. Dominy offered to pay by check or credit card, but was told that cash only was required. Mrs. Dominy obtained the cash and made the payment. She was required to sign an estimate statement indicating she had authorized the work. After she paid the bill and signed the authorization, she received her disassembled transmission in a box. Mrs. Dominy was told by the next repair shop that AAL had not returned all the parts to her transmission. The shop repaired her transmission for $350. In December 1994, Robin Beaumont drove his car to AAL to have his 1991 Plymouth transmission serviced. Mr. Beaumont requested a $14.95 service special which AAL had advertised. Mr. Beaumont had no problems with the transmission when he took the car to AAL. Two weeks previously, the car had been inspected at the dealership and no problems had been reported.. After arriving at AAL, MR. Beaumont met Larry Brinkman who test drove the vehicle before Mr. Beaumont left it at the shop. Mr. Brinkman did not report any problems after the test drive. Mr. Beaumont went to lunch with his wife. A few hours later, he returned to AAL and discovered his transmission had been disassembled. He was shown metal shavings, supposedly from his transmission. Mr. Beaumont had received no written estimate or disclosure prior to the disassembly. He had not authorized the disassembly. Larry Brinkman told Mr. Beaumont that his transmission repairs would cost $1,490. Mr. Beaumont refused to authorize the work and demanded that his transmission be reassembled. Mr. Brinkman then began reducing the charge until he offered to do the work for $900. None of the estimates were reduced to writing. Mr. Beaumont continued to refuse the repair and demand that the transmission be reassembled. Mr. Brinkman took Mr. Beaumont into the office of Fred Crisante. Mr. Crisante eventually offered to do the work for $490. Mr. Beaumont refused to authorize the work. Mr. Beaumont was forced to sign a repair estimate for $490 in order to secure the return of his vehicle. Eventually, Mr. Beaumont paid AAL approximately $460 to have his transmission reassembled. He received no written invoice or parts list. The day after the car was taken to AAL, Mr. Brinkman retrieved the vehicle and began driving. Shortly thereafter, the vehicle broke down, apparently due to a transmission part which was improperly attached. In November 1994, Lucinda Shelby and her husband, Garrett, had their 1987 Oldsmobile towed to AAL. The vehicle transmission was not shifting correctly and a hose appeared to be leaking. A few days after the car was towed, Mr. Shelby received a call from a man identified as Larry Brinkman, who advised that the transmission needed to be disassembled and pressure cleaned at a cost of not more than $350, before the problem could be diagnosed. Mr. Shelby advised the caller to contact his wife when she returned home later that day. When Mrs. Shelby returned home, she contacted AAL and was told that the repair cost would be $1,400. Mrs. Shelby went to the AAL facility and found that the transmission had been disassembled. She was shown a transmission pan and instructed to feel the metal shavings in the pan. She did as she was told, but felt no shavings. Mrs. Shelby declined to pay $1,400 for repair of the vehicle. The Shelbys received no written estimate or disclosure prior to the disassembly of their transmission. Mrs. Shelby was told that it would cost $240 to have the transmission reassembled without repair. She declined to pay the amount. Mrs. Shelby posted a bond with the Polk County Court and had her vehicle returned to her custody. The disassembled transmission was returned to her in a box. Mrs. Shelby eventually had her bond returned to her. The vehicle transmission was repaired at another shop for $829. In November 1994, Hubert Fields took his 1985 Chrysler to AAL after hearing a thumping sound coming from what Mr. Fields believed was the vehicle differential. At AAL, Mr. Fields met Larry Brinkman. Mr. Fields left the vehicle with Mr. Brinkman for diagnosis. When Mr. Fields returned, he was shown sediment, and told that the transmission needed repair. Mr. Fields was given an estimate of $1,198 to repair the vehicle. Mr. Fields authorized the repair. When Mr. Fields returned to AAL to get the vehicle, he did not receive an invoice listing parts replaced or repaired and the cost of such parts. He requested the parts list several times, but it was never received Within five days of retrieving the vehicle from AAL, and while Mr. Fields was driving the vehicle, the transmission failed and had to be replaced by another repair facility. In May 1995, based on consumer complaints, the Department began an investigation in cooperation with the Polk County Sheriff's Department. Investigators obtained a 1987 Lincoln Town Car without transmission problems and in good operating condition. The car was taken to a reputable transmission shop where it was examined. The transmission was disassembled and transmission parts were marked using a metal stamp with the initials ("BB") of the qualified mechanic doing the examination. The transmission was reassembled. On May 31, 1995, the Lincoln Town Car was taken by a civilian employee of the Sheriff's Department to the Respondent's location. The employee wore a body wire. Investigators monitored the conversation. The employee met with Mason Benfield, an AAL service manager, and asked for the $14.95 special and to have the transmission checked. After waiting for a time, Mr. Benfield returned and told the employee that there were metal slivers in her transmission pan, indicative of an internal transmission problem. Mr. Benfield showed a transmission pan to the employee and asked her to feel the metal slivers. He also indicated that the transmission was leaking and needed to be disassembled. Metal slivers or particles in a transmission pan are not unusual and do not indicate existence of transmission problems or the need for repair. The employee left the shop and returned with an investigator, who posed as the employee's brother. Another investigator continued to monitor the listening device. At that time, both the employee and her "brother" were introduced to Fred Crisante. Mr. Crisante took the pair into the shop and told them the transmission required extensive work. According to him, the oil pressure was poor and numerous parts required replacement. The employee authorized the work. On June 1, 1995, the employee returned to the shop to retrieve the vehicle. She paid $1,126.56 for the "repair." She asked for the used parts and was told they'd been discarded. The AAL invoice listed the following parts as having been used in the repair: master overhaul kit without steel plates; pump body with gears or rotor; band front or intermediate; band rear or reverse; small parts kit thrust washers; small parts kit bushings; valve body assembly service and reuse; ATF fluid and gear oil; rebuilt torque converter. The vehicle was immediately driven to the reputable transmission shop where it was originally checked. The transmission was disassembled and transmission parts were examined. The examination revealed the following: used clutches were installed although new ones would have been included in the master overhaul kit; the pump body and stator (which is bolted to the pump body) were the originals marked BB and had not been replaced; the band front or intermediate was marked "BB" and had not been replaced; and the band rear or reverse was a used, rather than new, part. The torque converter did not need rebuilding. The thrust washers and bushings did not need replacement. The transmission did not need to be rebuilt. There were no problems with the vehicle prior to being taken to AAL. The Petitioner presented testimony and evidence related to additional transactions between the Respondent and Sharon Gutterson, Robert Wilkes, Frances Wright and Darlene Smith. The additional evidence establishes that the incidents identified herein were not caused by mistake or accident, but were part of the plan of operation for the Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order revoking the Respondent's registration number MV-13472 as a motor vehicle repair shop DONE and ENTERED this 12th day of April, 1996 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 12th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5030 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 9. Rejected as to reference to AAL facilities not charged in the Administrative Complaint at issue in this proceeding. 37-46. Rejected, subordinate. 67. Rejected as witness recollection of others shown metal shavings, cumulative. 74. Rejected, hearsay. 89-94. Rejected, subordinate. 105-123. Rejected, subordinate. Respondent The Respondent did not submit a proposed recommended order. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Lawrence Davis, Esquire Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 John Woodward, Esquire 320 North Magnolia Avenue, Suite A-6 Orlando, Florida 32801
The Issue The issue in this case is whether Respondent should be sanctioned for failure to renew his registration as a motor vehicle repair shop for the current year.
Findings Of Fact Pursuant to the Florida Motor Vehicle Repair Act, Sections 559.901 through 559.9221, Florida Statutes, the Department regulates the repair of motor vehicles in this state. Mr. Flowers held a motor vehicle repair shop license issued by the Department which was valid through February 8, 2000. On January 9, 2000, Mr. Flowers was provided with notice that his license was required to be renewed by February 8, 2000. In order to have his license renewed, Mr. Flowers was required to pay a renewal fee of $50.00. He did not pay the renewal fee by the due date. During the period January 9, 2000, through September 21, 2000, in a continuing effort to persuade Mr. Flowers to renew his license, the department sent Mr. Flowers four letters, made three visits to the premises, and contacted the business at least nine times telephonically. Subsequent to his failure to renew his license, Mr. Flowers has continued to operate his vehicle repair facility and has, on at least three occasions, operated his motor vehicle repair shop by working on motor vehicles for compensation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of operating a motor vehicle repair shop without a license on three occasions, imposing a fine of $3,000, and ordering the Respondent to cease and desist engaging in the repair of motor vehicles. DONE AND ENTERED this 22nd day of November, 2000, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 22nd day of November, 2000. COPIES FURNISHED: Howard Flowers Tallahassee Truck Service 3321 Garber Drive Tallahassee, Florida 32303 Harold McLean, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Whether there is probable cause for petitioner to bring an action against respondents for violation of the Florida Deceptive and Unfair Trade Practices Act?
Findings Of Fact Some time after February 19, 1983, and before March 23, 1983, Wayne W. Hickey opened for business as an auto mechanic under the name Auto Tech at 2350 Fernwood Drive in Pensacola, Florida. He was employed by, but had no ownership interest in the auto repair business known as Motor Exchange that occupied the premises before him. After he had opened his own business, he undertook employment for Lloyd Linville, a principal of Motor Exchange, who asked him to repair a car that belonged to David H. Weinstein which Motor Exchange had been unable to repair. Mr. Hickey could not fix the engine knock, either, and was never paid for his work. While the car was in Mr. Hickey's custody, vandals did $700 damage to it. Mr. Hickey refused to repair this damage or pay Mr. Weinstein money to have it done elsewhere. On February of 1983, while still employed by Motor Exchange, Mr. Hickey signed a warranty on behalf of Motor Exchange covering an engine rebuilt for Jose L. Rodriguez. A week later Mr. Rodriguez discovered that the cam and the lifters were bad, and brought this to Mr. Hickey's attention. Mr. Hickey referred Mr. Rodriguez to Motor Exchange at their new location. The last time that Mr. Rodriguez and Mr. Hickey spoke before the hearing in this cause, Mr. Rodriguez told Mr. Hickey that all was well. At hearing for the first time, Mr. Hickey learned that other problems had developed with the engine since. After she got her income tax refund, Anita Diane Frye took her 1974 Chevrolet to Auto Tech on February 28, 1983. She considers the car hers even though it is registered in her boyfriend's name. He signed the work order authorizing respondent to rebuild the engine. Auto Tech worked on the engine and gave a "1 year or 15,000 mile warranty on engine against defective parts & workmanship accessories excluded." Petitioner's Exhibit No. 5. When Mr. Hickey returned the car after working on the engine, he told Ms. Frye, "You better buy a new set of back tires," because it would go so fast, he claimed. In fact, the car smoked from the time they got it back from Mr. Hickey and he was unable to correct the problem when they took it back for lifters to be installed or when they took it back the second time. The third time they took it back they found the shop closed and no indication of how to get in touch with Mr. Hickey. At the time of the hearing, the car had been driven less than 3,000 miles since the engine had been rebuilt, but the engine spat and sputtered and the car could not be driven faster than 20 or 30 miles per hour: "You sit in a cloud of smoke whenever you stop." After James Clyde Odom heard respondent's radio advertisement, he brought his 1974 Dodge truck to Auto Tech on May 3, 1983, to have the engine rebuilt. Mr. Hickey told him he would rebuild the engine "from the ground up" and guarantee his work. As agreed, Mr. Odom returned for the truck on May 7, 1983, paid Mr. Hickey $644.09 and received a written "1 year or 15,000 mile warranty on engine against defective parts & workmanship. Accessories excluded." Mr. Odom had driven the truck approximately three miles when his wife, who was following in another car, honked her horn. Steam was rising from the engine. They turned around and went back to the garage where Mr. Hickey supplied a bolt that had been left out of the water pump housing. The Odoms set out again and made it all the way to Mrs. Odom's father's house, where they noticed oil leaking. They determined that a quart and a half had been lost. They took the truck back to the Auto Tech shop again and left a note describing the problem. A week later Mr. Odom picked his truck up from Auto Tech a third time and drove it about two and a half miles to a friend's house, where oil leaked from the truck again and formed a puddle in the friend's driveway. This time when Mr. Odom returned, Mr. Hickey said he could not work on it right away, that Mr. Odom would have to bring it back at Mr. Hickey's convenience, and he refused Mr. Odom's proposal that another mechanic he asked to repair the engine with the bill being sent to Mr. Hickey. The compression in the truck's engine ranged from 107 or 114 pounds in one cylinder to 160 pounds in another. Mr. Hickey also undertook to repair the brakes on the Odom truck, and was paid for this job. He did not turn the drums or replace the brake cylinders although he did install new brake shoes. The brakes did not hold after the work was done. On May 27, 1983, Ishmael White took a 1974 Dodge engine to Hickey for rebuilding. The job was to include "rings, mains, rod bearings, timing gear, timing chain, lifters, push rods, oil pumps, all new gaskets, complete valve job and" cam bearings. Petitioner's Exhibit No. 7. On June 1, 1983, Mr. White paid Mr. Hickey $624.75 for this work and he picked the engine up the next day. The head bolt had not been replaced. On June 10, 1983, the engine was reinstalled in Mr. White's pick-up truck. It made the whole truck vibrate. When Mr. White took it to be tuned, the mechanic said he could not tune it because the valves were not closing. When Mr. White reported this to Mr. Hickey, Mr. Hickey said he would not be able to work on the engine until June 15, 1983. On June 15, 1983, Mr. White left the truck with Mr. Hickey and returned to pick it up on June 21, 1983, as they had agreed. The truck was not ready then, so Mr. White inquired again on June 23, 1983. At that time Mr. Hickey told him that the water pump leaked and would cost $70 to replace, but Mr. White refused to buy a water pump from Mr. Hickey since a new one had been installed less than three months before he took the engine to Auto Tech. On July 12, 1983, Mr. Hickey told Mr. White that everything had been fixed except the water pump and that if he towed the truck away without buying another water pump the warranty was "no good." The warranty Mr. Hickey had earlier given Mr. White was a "1 year or 15,000 mile warranty on engine against defective parts & workmanship. Accessories excluded." Petitioner's Exhibit No. 7. Mr. White took the truck nevertheless. Bolts were loose. A brand new air filter was wet. Four of the eight cylinders had little or no compression and the engine ran so rough the hood shook, but the water pump was not leaking. Mr. White took the truck elsewhere to be repaired at his expense. On April 2, 1983, James Fisher took his Ford pick-up to Mr. Hickey and Auto Tech and asked that a rebuilt 400 cubic inch engine be substituted for the 351 cubic inch engine it had at the time and that its C-4 transmission be replaced with a C-6. The Fishers retrieved their truck on April 14, 1983, and drove it home. The next day they set out on a camping trip. They had driven 20 miles when the engine "blew up." Smoke came back into the cab and billowed out from under the hood. Employees of Mr. Hickey came for the truck. On April 25, 1983, the Fishers left Auto Tech in the Ford truck a second time. The engine ran rough, the transmission "growled," and they spotted a stream of transmission fluid, so they turned around before they had gone a mile and drove the truck back to Auto Tech. On April 29, 1983, Mr. Hickey said everything was fine and the Fishers set out again. The transmission was better, but the engine was worse, and the car broke down near their son's place of business, a block or so from Auto Tech. The truck was taken back to the Auto Tech garage. Again on May 6, 1983, the Fishers set out in the truck and got all the way to Pace, Florida, this time, notwithstanding problems with the transmission. A mechanic in Pace discovered worn valve guides, worn rings and worn bearings; and that only one bolt attached the engine to the frame; and that the drive shaft had been jammed in without being properly fitted. The Fishers were unable to find Mr. Hickey after he closed down his Auto Tech shop. Without objection, the following affidavit was received in evidence at hearing: I Took The Engine To Wayne Hickey at Auto TECH to be Rebuilt. He was To Rebuild The Engine For $395.00 Plus Taxes, I Paind Him by check $414.75 I took The Engine Home and Installed it in The Car.The engine was Smokeing Real bad. I went back to Wayne Hickey with The Car and he informed me That The Engine Should be Ran For up To 500 miles If IT didn't stop smokeing & useing oil To bring it back. The Engine Froze up. I Towed The car back to AUTO TECH. Wayne Hickey said he would Need to Keep The Car for 3-4 days. My daughter called after 7 days and they haden't Touched The car. They Said to Call back ON The 16 July 83. My daughter Called back on The 16 July 83 and could get no anser, I called back on The 19th & the Recording Said The Phone was Temperoley out of order, I came over here to Auto TECH and talked to Wayne Hickey, 7-28-83. He had not done anything to the Engine, I ask him To give me my Money back and I would get The Engine Fixed Myself. He stated For me to Take The car Home, Take the Engin back out and bring the Engine back To him and He would Fix IT, he didn't say anything about Removeing The Engine when He Told me To bring The car back to Him, A Mr. Watha L. Clayton wrote out the foregoing statement on a form furnished by petitioner's office. The form affidavit was notarized July 28, 1983.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner find probable cause to initiate judicial proceedings against respondents pursuant to Section 501.207(1), Florida Statutes (1981). DONE and ENTERED this 2d day of December, 1983, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2d day of December, 1983. COPIES FURNISHED: William P. White, Jr., Esquire Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501 Wayne Hickey Motor Exchange 5672 Avondale Road Pensacola, Florida 32506 Curtis A. Golden, State Attorney First Judicial Circuit of Florida Post Office Box 12726 190 Governmental Center Pensacola, Florida 32501
