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.

Summary: Recommend a $12,000 fine and revocation of Respondent`s registration as a motor vehicle repair shop based upon numerous statutory violations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 07-2770

)

ROGER C. WOOD, d/b/a A NEW CARB O TRONICS, )

)

)

Respondent. )

)

RECOMMENDED ORDER

A duly-noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on March 28,

2008, by video teleconference between sites in Orlando and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Eric H. Miller, Esquire

Department of Agriculture and

Consumer Services

Terry L. Rhodes Building

2005 Apalachee Parkway

Tallahassee, Florida 32301

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent committed the acts alleged in the Administrative Complaint, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Department of Agriculture and Consumer Services

(Department) alleged in a five-count Administrative Complaint

dated February 23, 2007, that Respondent violated various

provisions of Chapter 559, Florida Statutes (2006). 1/ On or

about June 9, 2007, Respondent requested a formal hearing on the

Administrative Complaint.

On June 19, 2007, the Department referred the matter to the

Division of Administrative Hearings (DOAH) for the assignment of

an Administrative Law Judge to conduct the hearing requested by

Respondent. The referral was received by DOAH on June 21, 2007,

and the case was initially assigned to Administrative Law Judge

Bram D.E. Canter.

On December 20, 2007, Judge Canter entered an Order

granting the Department's motion to correct a scrivener's error

in the Administrative Complaint. The case proceeded to final

hearing on the corrected Administrative Complaint.

The final hearing was initially scheduled for October 9,

2007, but it was continued twice at Respondent's request. The

case was transferred to the undersigned on February 6, 2008, and

set for final hearing on March 28, 2008.

Respondent failed to appear at the final hearing. The

Department was given the option of treating Respondent's failure

to appear as a withdrawal of his request for a formal hearing,

but the Department elected to put on its case.

The Department presented the testimony of Garrett Moon and

the deposition testimony of David Addison and Janet Shea. The

Department offered Exhibits 1 through 7, 9, 10, and 12

through 15, all of which were received into evidence.

Additionally, at the hearing, the matters contained in the First

Requests for Admissions served by the Department on June 28,

2007, were deemed admitted by virtue of Respondent's failure to

respond to the requests. See Fla. R. Civ. P. 1.370(a).

Official recognition was taken of Sections 559.901 through

559.9221, Florida Statutes. See Order on Pending Motions

entered by Judge Canter on December 20, 2007.

On May 8, 2008, the Department filed a motion to conform

the Administrative Complaint to the evidence presented at the

final hearing. Respondent did not file a response to the

motion, and upon due consideration, the motion is granted.

The Transcript of the final hearing was filed on April 28,

2008. The parties were given ten days from that date to file

proposed recommended orders (PROs). The Department filed a PRO

on May 8, 2008. Respondent did not file a PRO. The

Department's PRO has been given due consideration.

FINDINGS OF FACT

1. 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.

2. 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.

3. 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.

4. 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.

5. On January 27, 2006, Ms. Shea paid Respondent $900 for

the repairs that he claimed to have done to the BCM.

6. 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.

7. On February 14, 2006, Ms. Shea paid Respondent an

additional $1,200 for repairs that he claimed to have done to

the BCM.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. The second invoice, also dated July 13, 2006, detailed

the $343 of repairs that Respondent purportedly made to

Mr. Shultz's LeBaron.

16. 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.

17. Ms. Shea did not pay these invoices.

18. 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.

19. 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."

20. On or about December 11, 2006, Ms. Shea recovered her

vehicle from Respondent with the assistance of the Melbourne

Police Department.

21. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. The only invoices that Respondent prepared for the

work that he allegedly performed for Ms. Shea were those

described above dated July 13, 2006.

31. 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.

32. 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.

33. Respondent did not appear at the final hearing despite

having been given due notice of the date, time, and location of

the hearing.

34. Respondent operated a motor vehicle repair shop under

registration number MV10590 from 1993 to 2001.

35. Respondent has no disciplinary history with the

Department.

36. 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.

CONCLUSIONS OF LAW

37. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes. See also § 559.921(4)(c), Fla.

Stat.

38. The Department is the state agency responsible for

regulating motor vehicle repair shops under Part IX of

Chapter 559, Florida Statutes.

39. The Department has the burden to prove the allegations

in the Administrative Complaint by clear and convincing

evidence. See Dept. of Banking & Finance v. Osborne, Stern &

Co. , 670 So. 2d 932 (Fla. 1996).

40. The clear and convincing evidence standard requires

that the evidence "must be of such weight that it produces in

the mind of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations sought to

be established." In re Davey , 645 So. 2d 398, 404 (Fla. 1994).

41. The Department met its burden of proof as to all

counts in the Administrative Complaint, as detailed below.

42. It is an unlawful practice for a motor vehicle repair

shop to "[m]ake or charge for repairs which have not been

expressly or impliedly authorized by the customer." See

§ 559.920(2), Fla. Stat.

43. The evidence clearly and convincingly establishes that

Respondent charged Ms. Shea without her authorization for

repairs allegedly made to her vehicle, as well as for repairs

made to Mr. Shultz's vehicle. Therefore, the Department met its

burden to prove that Respondent violated Section 559.920(2),

Florida Statutes, as alleged in Count 1 of the Administrative

Complaint.

44. It is an unlawful practice for a motor vehicle repair

shop to "[m]isrepresent that repairs have been made to a motor

vehicle." § 559.920(3), Fla. Stat.

45. The evidence clearly and convincingly establishes that

Respondent misrepresented that he repaired or replaced the BCM

on Ms. Shea's vehicle because the vehicle continued to have the

same problems each time it was returned to Ms. Shea, and the BCM

was still in need of replacement after the vehicle was recovered

from Respondent in December 2006. Therefore, the Department met

its burden to prove that Respondent violated Section 559.920(3),

Florida Statutes, as alleged in Count 2 of the Administrative

Complaint.

46. A motor vehicle repair shop is required to "maintain

repair records which shall include written repair estimates and

repair invoices" and is required to "allow department personnel

to inspect or copy these records during regular business hours."

See § 559.915(1) and (2), Fla. Stat.

47. The evidence clearly and convincingly establishes that

Respondent refused to allow Mr. Moon to inspect the records

pertaining to the repairs that he allegedly made on Ms. Shea's

vehicle. Therefore, the Department met its burden to prove that

Respondent violated Section 559.915(2), Florida Statutes, as

alleged in Count 3 of the Administrative Complaint.

48. Section 559.905(1), Florida Statutes, provides:

When any customer requests a motor vehicle

repair shop to perform repair work on a

motor vehicle, the cost of which repair work

will exceed $100 to the customer, the shop

shall prepare a written repair estimate,

which is a form setting forth the estimated

cost of repair work, including diagnostic

work, before effecting any diagnostic work

or repair.

49. The evidence clearly and convincingly establishes that

Respondent failed to prepare a written estimate related to any

of the seven payments that Ms. Shea made to Respondent for

repairs to her and Mr. Shultz's motor vehicles and that

Respondent failed to provide Ms. Shea an estimate for the work

that he allegedly performed and included on the two invoices

dated July 13, 2006. Therefore, the Department met its burden

to prove that Respondent violated Section 559.905(1), Florida

Statutes, as alleged in Count 4 of the Administrative Complaint,

and each of the nine incidents is a separate statutory

violation.

50. Section 559.911, Florida Statutes, provides in

pertinent part:

The motor vehicle repair shop shall provide

each customer, upon completion of any

repair, with a legible copy of an invoice

for such repair. The invoice may be

provided on the same form as the written

repair estimate and shall include the

following information:

(1) The current date and odometer reading

of the motor vehicle.

* * *

(5) A statement indicating what, if

anything, is guaranteed in connection with

the repair work and the time and mileage

period for which the guarantee is effective.

(6) The registration number from the

certificate issued by the department

pursuant to this part.

51. The evidence clearly and convincingly establishes that

Respondent failed to provide Ms. Shea a written invoice related

to any of the seven payments that she made to Respondent for

repairs to her and Mr. Shultz's motor vehicles, and that the two

invoices prepared by Respondent (but never provided to Ms. Shea)

failed to include the information required by statute, including

the current odometer reading of the vehicles, whether anything

was guaranteed pertaining to the repair work, and Respondent's

registration number. Therefore, the Department met its burden

to prove that Respondent violated Section 559.911(1), (5),

and (6), Florida Statutes, as alleged in Count 5 of the

Administrative Complaint, and each of the nine incidents is a

separate statutory violation.

52. The Department is authorized to impose penalties on a

motor vehicle repair shop for violating any provision of Part IX

of Chapter 559, Florida Statutes, and for failing to produce any

documents or records required by statute. See § 559.921(4)(a)1.

and 3., Fla. Stat.

53. The authorized penalties include imposition of an

administrative fine of up to $1,000 per violation, placement of

the motor vehicle shop on probation, and/or suspension or

revocation of the motor vehicle shop's registration. See

§ 559.921(4)(b), Fla. Stat.

54. The Department is seeking an administrative fine of

$12,000 and the revocation of Respondent's motor vehicle shop

registration. 2/

55. Even though Respondent has no disciplinary history

with the Department, the proposed penalty is reasonable and

appropriate under the circumstances of this case due to the

number of violations committed by Respondent and the resulting

financial harm to Ms. Shea.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department issue a final order that:

1. Finds Respondent guilty of violating Sections

and (3), Florida Statutes, as alleged in the Administrative

Complaint;

2. Imposes an administrative fine of $12,000; and

3. 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of May, 2008.

ENDNOTES

1/ All references to the provisions of Chapter 559, Florida

Statutes, are to the 2006 version in effect at the time of the

events giving rise to the Administrative Complaint. All other

statutory references are to the 2007 version of the Florida

Statutes.

2/ See Department's PRO, at pages 11-12. The proposed fine is

broken down as follows: $1,000 for Count 1 (violation of

Section 559.920(2), Florida Statutes); $1,000 for Count 2

(violation of Section 559.920(3), Florida Statutes); $1,000 for

Count 3 (violation of Section 559.915, Florida Statutes); $4,500

for Count 4 ($500 for each of the nine violations of Section

559.905(1), Florida Statutes); and $4,500 for Count 5 ($500 for

each of the nine violations of Section 559.911, Florida

Statutes). Id. at 11.

COPIES FURNISHED :

Honorable Charles H. Bronson

Commissioner of Agriculture

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399-0810

Richard Ditschler, General Counsel

Department of Agriculture and

Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399-0800

Eric H. Miller, Esquire

Department of Agriculture and

Consumer Services

Terry L. Rhodes Building

2005 Apalachee Parkway

Tallahassee, Florida 32301

Roger Wood

561 Adventure Avenue Northwest

Palm Bay, Florida 32907

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.