07-002770
Department Of Agriculture And Consumer Services vs.
Roger C. Wood, D/B/A A New Carb O Tronics
Status: Closed
Recommended Order on Monday, May 19, 2008.
Recommended Order on Monday, May 19, 2008.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF AGRICULTURE AND )
13CONSUMER SERVICES, )
16)
17Petitioner, )
19)
20vs. ) Case No. 07-2770
25)
26ROGER C. WOOD, d/b/a A NEW CARB O TRONICS, )
36)
37)
38Respondent. )
40)
41RECOMMENDED ORDER
43A duly-noticed final hearing was held in this case by
53Administrative Law Judge T. Kent Wetherell, II, on March 28,
632008, by video teleconference between sites in Orlando and
72Tallahassee, Florida.
74APPEARANCES
75For Petitioner: Eric H. Miller, Esquire
81Department of Agriculture and
85Consumer Services
87Terry L. Rhodes Building
912005 Apalachee Parkway
94Tallahassee, Florida 32301
97For Respondent: No appearance
101STATEMENT OF THE ISSUE
105The issue is whether Respondent committed the acts alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
126PRELIMINARY STATEMENT
128The Department of Agriculture and Consumer Services
135(Department) alleged in a five-count Administrative Complaint
142dated February 23, 2007, that Respondent violated various
150provisions of Chapter 559, Florida Statutes (2006). 1/ On or
160about June 9, 2007, Respondent requested a formal hearing on the
171Administrative Complaint.
173On June 19, 2007, the Department referred the matter to the
184Division of Administrative Hearings (DOAH) for the assignment of
193an Administrative Law Judge to conduct the hearing requested by
203Respondent. The referral was received by DOAH on June 21, 2007,
214and the case was initially assigned to Administrative Law Judge
224Bram D.E. Canter.
227On December 20, 2007, Judge Canter entered an Order
236granting the Department's motion to correct a scrivener's error
245in the Administrative Complaint. The case proceeded to final
254hearing on the corrected Administrative Complaint.
260The final hearing was initially scheduled for October 9,
2692007, but it was continued twice at Respondent's request. The
279case was transferred to the undersigned on February 6, 2008, and
290set for final hearing on March 28, 2008.
298Respondent failed to appear at the final hearing. The
307Department was given the option of treating Respondent's failure
316to appear as a withdrawal of his request for a formal hearing,
328but the Department elected to put on its case.
337The Department presented the testimony of Garrett Moon and
346the deposition testimony of David Addison and Janet Shea. The
356Department offered Exhibits 1 through 7, 9, 10, and 12
366through 15, all of which were received into evidence.
375Additionally, at the hearing, the matters contained in the First
385Requests for Admissions served by the Department on June 28,
3952007, were deemed admitted by virtue of Respondent's failure to
405respond to the requests. See Fla. R. Civ. P. 1.370(a).
415Official recognition was taken of Sections 559.901 through
423559.9221, Florida Statutes. See Order on Pending Motions
431entered by Judge Canter on December 20, 2007.
439On May 8, 2008, the Department filed a motion to conform
450the Administrative Complaint to the evidence presented at the
459final hearing. Respondent did not file a response to the
469motion, and upon due consideration, the motion is granted.
478The Transcript of the final hearing was filed on April 28,
4892008. The parties were given ten days from that date to file
501proposed recommended orders (PROs). The Department filed a PRO
510on May 8, 2008. Respondent did not file a PRO. The
521Department's PRO has been given due consideration.
528FINDINGS OF FACT
5311. At all times material to this case, Respondent operated
541a motor vehicle repair shop in Melbourne known as A-New-Carb-O-
551Tronics. The shop has been registered with the Department since
5612004 under registration number MV54037.
5662. In December 2005, Janet Shea started having problems
575with the back hatch of her 2001 Pontiac Aztek. The problems
586were attributed to the body control module (BCM), which is an
597electronic device that controls the vehicle's lights, door
605locks, and window motors.
6093. Ms. Shea consulted Respondent about the problems she
618was having with the Aztek because he had previously done repair
629work on another one of her vehicles.
6364. Respondent told Ms. Shea that he could make the
646necessary repairs to the BCM, and he picked up the vehicle from
658Ms. Shea's home to perform the repairs.
6655. On January 27, 2006, Ms. Shea paid Respondent $900 for
676the repairs that he claimed to have done to the BCM.
6876. Ms. Shea continued to have the same problems with the
698back hatch after the vehicle was returned to her by Respondent,
709so she took it back to Respondent for repairs.
7187. On February 14, 2006, Ms. Shea paid Respondent an
728additional $1,200 for repairs that he claimed to have done to
740the BCM.
7428. Ms. Shea continued to have the same problems with the
753back hatch after the vehicle was returned to her the second
764time, so she again took it back to Respondent for repairs.
7759. On February 18, 2006, while the vehicle was in
785Respondent's possession, it was involved in an accident that
794damaged the fuel pump. Respondent charged Ms. Shea $390 to
804repair the fuel pump.
80810. Ms. Shea continued to have the same problems with the
819back hatch of the vehicle after Respondent returned it to her
830the third time at the end of April or beginning of May 2006.
84311. At that point, Ms. Shea decided to sell the Aztek, but
855Respondent convinced her to let him take the car again for
866another evaluation. Respondent told Ms. Shea that the BCM that
876he installed must have been defective and that he would replace
887it under his warranty and that it would cost her nothing.
89812. On August 2, 2006, after Respondent failed to return
908the vehicle and refused to return her calls, Ms. Shea filed a
920stolen vehicle report with the Melbourne Police Department.
92813. During the course of the police investigation,
936Respondent produced two written invoices for repairs that he
945purportedly performed with Ms. Shea's authority, including
952charges for repairs to a 1992 Chrysler LeBaron owned by
962Ms. Shea's friend, Ron Shultz. Ms. Shea was never given these
973invoices by Respondent.
97614. The first invoice, dated July 13, 2006, was for
986$1,657. It included $343 of charges for repairs to Mr. Shultz's
998LeBaron. The remainder of the invoice was for repairs that
1008Respondent claimed to have performed on Ms. Shea's Aztek,
1017including replacement of the BCM.
102215. The second invoice, also dated July 13, 2006, detailed
1032the $343 of repairs that Respondent purportedly made to
1041Mr. Shultz's LeBaron.
104416. Ms. Shea did not authorize the repairs to Mr. Shultz's
1055vehicle, nor did she authorize the charges for that vehicle to
1066be included on her invoice. The handwritten notations on the
1076invoices, which appear to show that Ms. Shea consented to the
1087repairs, were not written by Ms. Shea, but rather were written
1098by Respondent without Ms. Shea's authority.
110417. Ms. Shea did not pay these invoices.
111218. Respondent placed a mechanic's lien on Ms. Shea's
1121vehicle for the $1,657 of repairs that he claimed to have
1133performed, but for which Ms. Shea failed to pay.
114219. On December 4, 2006, the Circuit Court for Brevard
1152County entered an Order finding the lien to be "wrongful" and
1163declaring it "null and void."
116820. On or about December 11, 2006, Ms. Shea recovered her
1179vehicle from Respondent with the assistance of the Melbourne
1188Police Department.
119021. Respondent had abandoned the vehicle behind the
1198warehouses near his shop. The vehicle was not in a drivable
1209condition when it was recovered. Respondent had removed belts
1218and other parts that he claimed to have installed on the
1229vehicle.
123023. On December 11, 2006, Ms. Shea's vehicle was towed to
1241Lane Pontiac-Buick-GMC (Lane) for an estimate of the repairs
1250needed to make it drivable. The estimate prepared by Lane
1260identified almost $4,400 of necessary repairs, including a new
1270BCM.
127123. The estimated charges related to the BCM were
1280approximately $400--$252.46 for parts and $148.42 for
1287labor--which is far less than the $2,100 that Ms. Shea paid
1299Respondent for the repair work that he claimed to have done on
1311the BCM.
131324. Ms. Shea filed a complaint with the Department in
1323August 2006 concerning her dealings with Respondent. The
1331complaint was investigated by Garrett Craig Moon, who has
1340approximately eight years of experience investigating motor
1347vehicle repair shops for the Department.
135325. On September 21, 2006, Mr. Moon conducted an onsite
1363visit to Respondent's shop. The visit was conducted after
13728:00 p.m., because that was during the time Respondent regularly
1382conducted his motor vehicle repair business.
138826. During the onsite visit, Mr. Moon requested that
1397Respondent provide the documents supporting any repairs that he
1406made to Ms. Shea's vehicle, including documents showing her
1415authorization for the repairs and receipts for the parts used to
1426complete the repairs. Respondent told Mr. Moon that he did not
1437have the documents at the shop on that date, but he agreed to
1450produce them by fax.
145427. Respondent subsequently sent a letter to Mr. Moon by
1464fax, but he did not produce any of the requested records. He
1476told Mr. Moon on December 4, 2006, that he refused to produce
1488any records.
149028. Respondent had not produced the motor vehicle repair
1499records for inspection by the Department as requested by
1508Mr. Moon as of the date of the final hearing.
151829. On seven separate occasions, Ms. Shea paid Respondent
1527for motor vehicle repairs where the cost of the repair work
1538exceeded $100. Those payments included the $900 and $1,200
1548payments for repairs to the BCM and the $390 payment for the
1560fuel pump, as well as payments for other repairs.
156930. The only invoices that Respondent prepared for the
1578work that he allegedly performed for Ms. Shea were those
1588described above dated July 13, 2006.
159431. Respondent did not provide written estimates to
1602Ms. Shea for any of the repair work that he allegedly performed,
1614and at no time did Ms. Shea waive the preparation of a written
1627estimate.
162832. The invoices described above did not include odometer
1637readings for Ms. Shea's Aztek or Mr. Shultz's LeBaron, a
1647statement indicating whether anything was guaranteed in
1654connection with the repair work, or the registration number for
1664Respondent's motor vehicle repair shop.
166933. Respondent did not appear at the final hearing despite
1679having been given due notice of the date, time, and location of
1691the hearing.
169334. Respondent operated a motor vehicle repair shop under
1702registration number MV10590 from 1993 to 2001.
170935. Respondent has no disciplinary history with the
1717Department.
171836. The Department's records identify only one other
1726consumer complaint against Respondent. Mr. Moon's report states
1734that the other complaint was in 1996 and that it was mediated by
1747a Department investigator.
1750CONCLUSIONS OF LAW
175337. DOAH has jurisdiction over the parties to and subject
1763matter of this proceeding pursuant to Sections 120.569 and
1772120.57(1), Florida Statutes. See also § 559.921(4)(c), Fla.
1780Stat.
178138. The Department is the state agency responsible for
1790regulating motor vehicle repair shops under Part IX of
1799Chapter 559, Florida Statutes.
180339. The Department has the burden to prove the allegations
1813in the Administrative Complaint by clear and convincing
1821evidence. See Dept. of Banking & Finance v. Osborne, Stern &
1832Co. , 670 So. 2d 932 (Fla. 1996).
183940. The clear and convincing evidence standard requires
1847that the evidence "must be of such weight that it produces in
1859the mind of the trier of fact a firm belief or conviction,
1871without hesitancy, as to the truth of the allegations sought to
1882be established." In re Davey , 645 So. 2d 398, 404 (Fla. 1994).
189441. The Department met its burden of proof as to all
1905counts in the Administrative Complaint, as detailed below.
191342. It is an unlawful practice for a motor vehicle repair
1924shop to "[m]ake or charge for repairs which have not been
1935expressly or impliedly authorized by the customer." See
1943§ 559.920(2), Fla. Stat.
194743. The evidence clearly and convincingly establishes that
1955Respondent charged Ms. Shea without her authorization for
1963repairs allegedly made to her vehicle, as well as for repairs
1974made to Mr. Shultz's vehicle. Therefore, the Department met its
1984burden to prove that Respondent violated Section 559.920(2),
1992Florida Statutes, as alleged in Count 1 of the Administrative
2002Complaint.
200344. It is an unlawful practice for a motor vehicle repair
2014shop to "[m]isrepresent that repairs have been made to a motor
2025vehicle." § 559.920(3), Fla. Stat.
203045. The evidence clearly and convincingly establishes that
2038Respondent misrepresented that he repaired or replaced the BCM
2047on Ms. Shea's vehicle because the vehicle continued to have the
2058same problems each time it was returned to Ms. Shea, and the BCM
2071was still in need of replacement after the vehicle was recovered
2082from Respondent in December 2006. Therefore, the Department met
2091its burden to prove that Respondent violated Section 559.920(3),
2100Florida Statutes, as alleged in Count 2 of the Administrative
2110Complaint.
211146. A motor vehicle repair shop is required to "maintain
2121repair records which shall include written repair estimates and
2130repair invoices" and is required to "allow department personnel
2139to inspect or copy these records during regular business hours."
2149See § 559.915(1) and (2), Fla. Stat.
215647. The evidence clearly and convincingly establishes that
2164Respondent refused to allow Mr. Moon to inspect the records
2174pertaining to the repairs that he allegedly made on Ms. Shea's
2185vehicle. Therefore, the Department met its burden to prove that
2195Respondent violated Section 559.915(2), Florida Statutes, as
2202alleged in Count 3 of the Administrative Complaint.
221048. Section 559.905(1), Florida Statutes, provides:
2216When any customer requests a motor vehicle
2223repair shop to perform repair work on a
2231motor vehicle, the cost of which repair work
2239will exceed $100 to the customer, the shop
2247shall prepare a written repair estimate,
2253which is a form setting forth the estimated
2261cost of repair work, including diagnostic
2267work, before effecting any diagnostic work
2273or repair.
227549. The evidence clearly and convincingly establishes that
2283Respondent failed to prepare a written estimate related to any
2293of the seven payments that Ms. Shea made to Respondent for
2304repairs to her and Mr. Shultz's motor vehicles and that
2314Respondent failed to provide Ms. Shea an estimate for the work
2325that he allegedly performed and included on the two invoices
2335dated July 13, 2006. Therefore, the Department met its burden
2345to prove that Respondent violated Section 559.905(1), Florida
2353Statutes, as alleged in Count 4 of the Administrative Complaint,
2363and each of the nine incidents is a separate statutory
2373violation.
237450. Section 559.911, Florida Statutes, provides in
2381pertinent part:
2383The motor vehicle repair shop shall provide
2390each customer, upon completion of any
2396repair, with a legible copy of an invoice
2404for such repair. The invoice may be
2411provided on the same form as the written
2419repair estimate and shall include the
2425following information:
2427(1) The current date and odometer reading
2434of the motor vehicle.
2438* * *
2441(5) A statement indicating what, if
2447anything, is guaranteed in connection with
2453the repair work and the time and mileage
2461period for which the guarantee is effective.
2468(6) The registration number from the
2474certificate issued by the department
2479pursuant to this part.
248351. The evidence clearly and convincingly establishes that
2491Respondent failed to provide Ms. Shea a written invoice related
2501to any of the seven payments that she made to Respondent for
2513repairs to her and Mr. Shultz's motor vehicles, and that the two
2525invoices prepared by Respondent (but never provided to Ms. Shea)
2535failed to include the information required by statute, including
2544the current odometer reading of the vehicles, whether anything
2553was guaranteed pertaining to the repair work, and Respondent's
2562registration number. Therefore, the Department met its burden
2570to prove that Respondent violated Section 559.911(1), (5),
2578and (6), Florida Statutes, as alleged in Count 5 of the
2589Administrative Complaint, and each of the nine incidents is a
2599separate statutory violation.
260252. The Department is authorized to impose penalties on a
2612motor vehicle repair shop for violating any provision of Part IX
2623of Chapter 559, Florida Statutes, and for failing to produce any
2634documents or records required by statute. See § 559.921(4)(a)1.
2643and 3., Fla. Stat.
264753. The authorized penalties include imposition of an
2655administrative fine of up to $1,000 per violation, placement of
2666the motor vehicle shop on probation, and/or suspension or
2675revocation of the motor vehicle shop's registration. See
2683§ 559.921(4)(b), Fla. Stat.
268754. The Department is seeking an administrative fine of
2696$12,000 and the revocation of Respondent's motor vehicle shop
2706registration. 2/
270855. Even though Respondent has no disciplinary history
2716with the Department, the proposed penalty is reasonable and
2725appropriate under the circumstances of this case due to the
2735number of violations committed by Respondent and the resulting
2744financial harm to Ms. Shea.
2749RECOMMENDATION
2750Based upon the foregoing Findings of Fact and Conclusions
2759of Law, it is
2763RECOMMENDED that the Department issue a final order that:
27721. Finds Respondent guilty of violating Sections
2779and (3), Florida Statutes, as alleged in the Administrative
2788Complaint;
27892. Imposes an administrative fine of $12,000; and
27983. Revokes Respondent's motor vehicle repair shop
2805registration.
2806DONE AND ENTERED this 19th day of May, 2008, in
2816Tallahassee, Leon County, Florida.
2820S
2821T. KENT WETHERELL, II
2825Administrative Law Judge
2828Division of Administrative Hearings
2832The DeSoto Building
28351230 Apalachee Parkway
2838Tallahassee, Florida 32399-3060
2841(850) 488-9675 SUNCOM 278-9675
2845Fax Filing (850) 921-6847
2849www.doah.state.fl.us
2850Filed with the Clerk of the
2856Division of Administrative Hearings
2860this 19th day of May, 2008.
2866ENDNOTES
28671/ All references to the provisions of Chapter 559, Florida
2877Statutes, are to the 2006 version in effect at the time of the
2890events giving rise to the Administrative Complaint. All other
2899statutory references are to the 2007 version of the Florida
2909Statutes.
29102/ See Department's PRO, at pages 11-12. The proposed fine is
2921broken down as follows: $1,000 for Count 1 (violation of
2932Section 559.920(2), Florida Statutes); $1,000 for Count 2
2941(violation of Section 559.920(3), Florida Statutes); $1,000 for
2950Count 3 (violation of Section 559.915, Florida Statutes); $4,500
2960for Count 4 ($500 for each of the nine violations of Section
2972559.905(1), Florida Statutes); and $4,500 for Count 5 ($500 for
2983each of the nine violations of Section 559.911, Florida
2992Statutes). Id. at 11.
2996COPIES FURNISHED :
2999Honorable Charles H. Bronson
3003Commissioner of Agriculture
3006Department of Agriculture and
3010Consumer Services
3012The Capitol, Plaza Level 10
3017Tallahassee, Florida 32399-0810
3020Richard Ditschler, General Counsel
3024Department of Agriculture and
3028Consumer Services
3030407 South Calhoun Street, Suite 520
3036Tallahassee, Florida 32399-0800
3039Eric H. Miller, Esquire
3043Department of Agriculture and
3047Consumer Services
3049Terry L. Rhodes Building
30532005 Apalachee Parkway
3056Tallahassee, Florida 32301
3059Roger Wood
3061561 Adventure Avenue Northwest
3065Palm Bay, Florida 32907
3069NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
3075All parties have the right to submit written exceptions within
308515 days from the date of this Recommended Order. Any exceptions
3096to this Recommended Order should be filed with the agency that
3107will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 06/03/2008
- Proceedings: Letter to parties of record from Judge Wetherell regarding your letter dated May 30, 2008.
- PDF:
- Date: 05/30/2008
- Proceedings: Letter to DOAH from R. Wood regarding request for 30 Day Extension to file Exceptions to Recommended Order filed.
- PDF:
- Date: 05/19/2008
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 04/28/2008
- Proceedings: Transcript filed.
- Date: 03/28/2008
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 02/15/2008
- Proceedings: Notice of Hearing by Video Teleconference (hearing set for March 28, 2008; 9:00 a.m.; Orlando and Tallahassee, FL).
- PDF:
- Date: 01/11/2008
- Proceedings: Petitioner`s Amendment to Status Report and Notice of Unavailability During March 31 - April 4, 2008 filed.
- PDF:
- Date: 01/07/2008
- Proceedings: Letter to Judge Canter and Mr. Miller from R. Wood regarding continuance filed.
- PDF:
- Date: 12/17/2007
- Proceedings: Order Granting Continuance (parties to advise status by January 4, 2008).
- PDF:
- Date: 12/12/2007
- Proceedings: Letter to Judge Canter from R. Wood Jr. regarding R. Wood Sr. being in the hospital filed.
- PDF:
- Date: 10/08/2007
- Proceedings: Notice of Hearing (hearing set for December 18, 2007; 9:00 a.m.; Tallahassee, FL).
- PDF:
- Date: 10/01/2007
- Proceedings: Order Granting Continuance and Canceling Hearing (parties to advise status by October 5, 2007).
- PDF:
- Date: 09/27/2007
- Proceedings: Letter to Judge Canter from R. Wood regarding a request for a continuance filed.
- PDF:
- Date: 09/21/2007
- Proceedings: Petitioner`s Motion to Amend Administrative Complaint to Correct Scrivener`s Error filed.
Case Information
- Judge:
- T. KENT WETHERELL, II
- Date Filed:
- 06/21/2007
- Date Assignment:
- 02/04/2008
- Last Docket Entry:
- 10/24/2008
- Location:
- Orlando, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO
Counsels
-
Eric H. Miller, Esquire
Address of Record -
Roger Wood
Address of Record