8. - bar.ca.govbar.ca.gov › pdf › accusations › rc-222260_2017_09_21_acc.pdf · ALPHA AUTO...

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XAVIER BECERRA Attorney General of California FRANK H. PACOE Supervising Deputy Attorney General MICHAEL 8. FRANKLfN Deputy Attorney General State Bar No. 136524

455 Golden Gate Avenue, Suite II 000 San Francisco, CA 94102-7004 Telephone: ( 415) 703-5622 Facsimile: (415) 703-5480

Attorneys for Complainant

BEFORE THE DEPARTMENT OF CONSUMER AFFAIRS

FOR THE BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

In the Matter of the Accusation Against:

ALPHA AUTO REPAIR HUNG DUC PHAM, OWNER 481 Madera Avenue San Jose, CA 951 I 2-0000

Automotive Repair Dealer Registration No. ARD 222260 Smog Check Station License No. RC 222260,

And

MAN VANTRAN 13 I 7 Cassland Ct. San Jose, CA 95131

Smog Check Inspector (EO) License No. 140411 Smog Check Repair Technician (EI) License No. 140411, (formerly EA140411)

Respondents.

Complainant alleges:

C N 1'1l II- 2e0'C,

ase o. l

ACCUSATION

PARTIES

27 I. Patrick Dorais (Complainant) brings this Accusation solely in his official capacity as

28 the Chief of the Bureau of Automotive Repair (Bureau), Department of Consumer Affairs.

(HUNG DUC PHAM, dba ALPHA AUTO REPAIR) ACCUSATION

Automotive Repair Dealer Registration

2 2. In or about 2002, the Bureau issued Automotive Repair Dealer Registration Number

3 ARD 222260 ("Registration") to Hung Due Pham, doing business as Alpha Auto Repair

4 ("Respondent Pham, dba Alpha Auto Repair"). The Automotive Repair Dealer Registration was

5 in full force and effect at all times relevant to the charges brought herein and will expire on June

6 30, 2018 unless renewed.

7 Smog Check Station License

8 3. On or about December 5, 2002, the Bureau issued Smog Check Station License

9 Number RC 222260 ("smog station license") to Respondent Pham, dba Alpha Auto Repair. The

10 Smog Station License was in full force and effect at all times relevant to the charges brought

II herein and will expire on June 30, 2018, unless renewed.

12 Smog Check License

13 4. In or about 2003, the Bureau issued Advanced Emission Specialist (EA) Technician

14 License number EA 140411 to Man Van Tran (Respondent Tran). License number EA 140411

15 was due to expire on October 31, 2012, however was cancelled on October 15, 2012.

16 Pursuant to California Code of Regulations, title 16 section 3340.28 subdivision (e)1, said

17 license was renewed pursuant to Respondent Tran's election as Smog Check Inspector (EO)

18 License No. 140411 and Smog Check Repair Technician (EI) License No. 140411, effective

19 October 15, 2012. Smog Check Inspector (EO) License and Smog Check Repair Technician (EI)

20 License will expire on October 31, 2018, unless renewed.

21 JURISDICTION

22 5. This Accusation is brought before the Director of the Department of Consumer

23 Affairs (Director) for the Bureau of Automotive Repair, under the authority of the following laws.

24 STATUTORY PROVISIONS

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6. Section 9884.7 of the Code states:

1 Effective August I, 2012, California Code of Regulations, title 16, sections 3340.28,3340.29, and 3340.30 were amended to implement a license restructure from the Advanced Emission Specialist Technician (EA) license and Basic Area Technician (EB) license to Smog Check Inspector (EO) license and/or Smog Check Repair Technician (El) license.

2


"(a) The director, where the automotive repair dealer cannot show there was a bona fide

2 error, may deny, suspend, revoke, or place on probation the registration of an automotive repair

3 dealer for any of the following acts or omissions related to the conduct of the business of the

4 automotive repair dealer, which are done by the automotive repair dealer or any automotive

5 technician, employee, partner, officer, or member of the automotive repair dealer.

6 (I) Making or authorizing in any manner or by any means whatever any statement written or

7 oral which is untrue or misleading, and which is known, or which by the exercise of reasonable

8 care should be known, to be untrue or misleading.

9

10 ( 4) Any other conduct that constitutes fraud.

II

12 (6) Failure in any material respect to comply with the provisions of this chapter or

13 regulations adopted pursuant to it.

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15 (c) Notwithstanding subdivision (b), the director may suspend, revoke, or place on

16 probation the registration for all places of business operated in this state by an automotive repair

17 dealer upon a finding that the automotive repair dealer has, or is, engaged in a course of repeated

18 and willful violations of this chapter, or regulations adopted pursuant to it."

19 7. Code section 9884.13 provides, in pertinent part, that the expiration of a valid

20 registration shall not deprive the director or chief of jurisdiction to proceed with a disciplinary

21 proceeding against an automotive repair dealer or to render a decision invalidating a registration

22 temporarily or permanently.

23 8. Section 44002 of the Health and Safety Code provides, in pertinent part, that the

24 Director has all the powers and authority granted under the Automotive Repair Act for enforcing

25 the Motor Vehicle Inspection Program.

26 9. Section 44012 of the Health and Safety Code requires that tests at smog check

27 stations be performed in accordance with procedures prescribed by the department.

28 I 0. Section 44059 of the Health and Safety Code states, in pertinent part:

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"The willful making of any false statement or entry with regard to a material matter in any

2 oath, affidavit, certificate of compliance or noncompliance, or application form which is required

3 by this chapter or Chapter 20.3 (commencing with Section 9880) of Division 3 of the Business

4 and Professions Code, constitutes perjury and is punishable as provided in the Penal Code."

5 II. Section 44072.2 of the Health and Safety Code states, in pertinent part:

6 The director may suspend, revoke, or take other disciplinary action against a license as

7 provided in this article if the licensee, or any partner, officer, or director thereof, does any of the

8 following:

9 (a) Violates any section of this chapter and the regulations adopted pursuant to it, which

10 related to the licensed activities.

II

12 (c) Violates any of the regulations adopted by the director pursuant to this chapter.

13 (d) Commits any act involving dishonesty, fraud, or deceit whereby another is injured.

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IS (h) Violates or attempts to violate the provisions of this chapter relating to the particular

16 activity for which he or she is licensed.

17 12. Section 44072.6 of the Health and Safety Code provides, in pertinent part, that the

18 expiration or suspension of a license by operation of law, or by order or decision of the Director

19 of Consumer Affairs, or a court of law, or the voluntary surrender of the license shall not deprive

20 the Director of jurisdiction to proceed with disciplinary action.

21 13. Section 44072.8 of the Health and Safety Code states:

22 When a license has been revoked or suspended following a hearing under this article, any

23 additional license issued under this chapter in the name of the licensee may be likewise revoked

24 or suspended by the director.

25 14. California Code of Regulations, title 16, section 3340.24, states:

26 " ... (c) The bureau may suspend or revoke the license of or pursue other legal action against

27 a licensee, if the licensee falsely or fraudulently issues or obtains a certificate of compliance or a

28 certificate of noncompliance ... "

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15. California Code of Regulations, title 16, section 3340.30, states, in pertinent part:

2 A licensed smog check inspector and/or repair technician shall comply with the following

3 requirements at all times while licensed:

4 (a) Inspect, test and repair vehicles, as applicable, in accordance with section 44012 of the

5 Health and Safety Code, section 44035 of the Health and Safety Code, and section 3340.42 of this

6 article.


8 " ... (c) A licensed station shall issue a certificate of compliance or noncompliance to the

9 owner or operator of any vehicle that has been inspected in accordance with the procedures

I 0 specified in section 3340.42 of this article and has all the required emission control equipment

II and devices installed and functioning correctly ... "

12 17. California Code of Regulations, title 16, section 3340.41(c), states:

13 "No person shall enter into the emissions inspection system any vehicle identification

14 information or emission control system identification data for any vehicle other than the one being

15 tested. Nor shall any person knowingly enter into the emissions inspection system any false

16 information about the vehicle being tested."

17 18. California Code of Regulations, title 16, section 3340.42, states, in pertinent part that

18 "Smog check inspection methods are prescribed in the Smog Check Manual, referenced by

19 section 3340.45."


21 (a) All Smog Check inspections shall be performed in accordance with requirements and

22 procedures prescribed in the following:

23 (I) Smog Check Inspection Procedures Manual, dated August 2009, which is hereby

24 incorporated by reference. This manual shall be in effect until subparagraph (2) is implemented.

25 (2) Smog Check Manual, dated 2013, which is hereby incorporated by reference. This

26 manual shall become effective on or after January I, 2013.

27 Ill

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COSTS

2 20. Section 125.3 of the Code provides, in pertinent part, that the Bureau may request the

3 administrative law judge to direct a licentiate found to have committed a violation or violations of

4 the licensing act to pay a sum not to exceed the reasonable costs of the investigation and

5 enforcement of the case, with failure of the licentiate to comply subjecting the license to not being

6 renewed or reinstated. If a case settles, recovery of investigation and enforcement costs may be

7 included in a stipulated settlement.

8 FACTUAL SUMMARY

9 21. On March 9, 2015, the Bureau implemented a statewide regulatory change requiring

10 the use of the On Board Diagnostic Inspection System (BAR-OIS) instead of the Emission

II Inspection System (EIS) for the smog testing of 2000 model year and newer gas powered and

12 hybrid vehicles.

13 22. The new BAR-OIS smog inspection uses a Data Acquisition Device (DAD), a

14 computer, a bar code scanner, and printer. The DAD is a scan tool that retrieves data from a

15 vehicle's On Board Diagnostic-generation II (OBD II) computer. The DAD connects the BAR

16 OIS computer to the vehicle's diagnostic link connector (DLC) to retrieve the data from the

17 vehicle. The bar code scanner is used to input technician information, the vehicle identification

18 number (VIN), and DMV renewal information. The printer is used to print Vehicle Inspection

19 Reports.

20 23. Data retrieved and recorded during an BAR-OIS smog check includes; the eVIN,

21 which is the digitally stored VIN programmed into the vehicles Powertrain Control Module

22 (PCM): the communication protocol, which is the manufacturer/vehicles specific "language" the

23 PCM uses to relay information; and the number of Parameter Identifications (P!Ds), which is the

24 number of specific data values each PCM uses related to emissions controls.

25 24. As part of the BAR-OIS smog inspections, the technician also performs a visual and

26 functional test on the vehicle being inspected. The visual inspection of the emission control

27 components verifies the required emission control devices are present and properly connected and

28 a functional test is performed of the malfunction indicator light (MIL). The BAR-OIS software

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makes the determination whether or not the vehicle passes the inspection based on the results of

2 the OBD, visual and functional tests. If the vehicle passes the inspection a certificate of

3 compliance is issued. The information from the smog inspection is then transmitted to the

4 Vehicle Information Data (VID) base.

5 25. The Bureau can access the VID to view test data on smog check inspections

6 performed at any Smog Check Station, or search for, retrieve, and print a test record for a

7 particular vehicle which has been tested.

8 26. The Bureau has become aware of several methods used by Smog Check stations and

9 Smog Check technicians to issue improper/fraudulent smog certificates of compliance. One

10 method is known as clean plugging. Clean plugging involves using another vehicle's properly

11 functioning OBD II system, or another source, to generate passing diagnostic readings for the

12 purpose of issuing fraudulent smog Certificates of Compliance to vehicles that are not in smog

13 compliance and/or are not present for testing.

14 27. In or about 2017, the Bureau initiated an investigation of the inspection practices of

15 Respondent Pham, dba Alpha Auto Repair. Beginning on or about April 30, 2016 and continuing

16 until about October 2016, Respondents2 were found to have performed 12 fraudulent smog

17 inspections using clean-plugging methods. Clean-plugging is the practice of testing one OBD II

18 system (a system that would pass the smog inspection), for the purpose offraudulently issuing a

19 smog certificate of compliance to another vehicle that would not pass the smog inspection and/or

20 is not present for testing. The vehicle receiving the certificate of compliance is not actually tested

21 during the smog inspection.

22 28. A Bureau representative reviewed data for vehicles inspected by Respondent Tran and

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certified by Respondent Pham, dba Alpha Auto Repair. The data revealed that the 12 vehicles

that were purportedly tested by Respondents were not and could not have been connected to the

DAD when they were being certified because the OBD-II data purportedly transmitted by those

vehicles could not have been transmitted by those vehicles.

2 Respondent Tran performed the smog tests on behalf of Respondent Pham, dba Alpha Auto Repair.

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29. The PID counts for the 12 vehicles purportedly being tested did not match the

2 expected PID counts for those vehicles. The e VINs were not present on all of the 12 vehicles and

3 the communication protocols were not what they should have been.

4 30. Respondent Tran clean plugged 12 vehicles, resulting in the issuance of 12

5 fraudulent Smog Check Certificates of Compliance. The vehicles were clean plugged as follows:

6 Clean Plug #1, April 30, 2016

7 31. On April 30, 2016, a 20 I 0 Honda Pilot EXL, YIN 5FNYF3H5XABO 1780 I,

8 California License Plate 6LNE059, was inspected and smog certificate #YZ544283C was issued.

9 The Licensed Smog Check Inspector was Respondent Tran. The Licensed Smog Check Station

10 was Respondent Pham, dba Alpha Auto Repair. The OIS Test Detail for the 20 I 0 Honda Pilot

II EXL showed that eVIN JHMCM56446C001098 was transmitted, the communication protocol

12 was transmitted as 1914, and the PID Count was 21.

]3 32. Test data contained within the Bureau's Smog Check data base showed that similar

14 2010 Honda Pilot EXL vehicles transmit their eVIN, the expected communication protocol is

]5 ICAN29bt5, and the expected PID Count is 44119. 3

]6 33. On March 4, 2016, this same 2010 Honda Pilot EXL vehicle failed a Smog Check

17 Inspection at another facility. During the failed inspection, the correct eVIN

18 5FNYF3H5XABO 17801 was transmitted, the communication protocol transmitted as ICAN29bt5,

19 and the expected PID count was 44119.

20 34. Additionally, the OIS Test Data shows a 2006 Honda Accord LX, eVIN

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JHMCM56446C001098 as the vehicle used to generate the fraudulent Smog Certificate of

Compliance for the 20 I 0 Honda Pilot EXL. The 2006 Honda Accord LX was certified under the

license of Respondent Tran at Respondent Pham, dba Alpha Auto Repair on the same day, April

30,2016. The OIS Test Data transmitted for the 2006 Honda Accord LX matches the OIS Data

for the fraudulent inspection of the 20 I 0 Honda Pilot EXL for the eVIN, protocol and PID count.

Ill

3 Some vehicles will report two PID counts to the BAR-OIS.

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35. The discrepancies in the OIS Test Data establish that the OIS DAD was not connected

2 to the 2010 Honda Pilot EXL when it was being certified, resulting in the issuance of a fraudulent

3 Smog Certificate of Compliance.

4 Clean Plug #2, May 13, 2016

5 36. On May 13, 2016, a 2003 Chevrolet Silverado C2500HD, YIN

6 I GCHC23U83Fl77451, California License Plate 7C22435, was inspected and smog certificate

7 #QC327455C was issued. The Licensed Smog Check Inspector was Respondent Tran. The

8 Licensed Smog Check Station was Respondent Pham, dba Alpha Auto Repair. The OIS Test

9 Detail showed that eYIN transmitted as JTEZUI4R050043590, the communication protocol

10 transmitted as !CAN II bt5, and the PID Count was 44.

II 37. Test data contained within the Bureau's Smog Check data base showed that similar

12 2003 Chevrolet Silverado C2500HD vehicles transmit their eYIN, the expected communication

13 protocol is JYPW, and the expected PID Count is 22.

14 38. On October 7, 2015, this same 2003 Chevrolet Silverado C2500HD, YIN

15 I GCHC23U83Fl77451, California License Plate 7C22435, passed a Smog Check Inspection at

16 another facility. During this inspection, the correct eYIN I GCHC23U83FI77451 was

17 transmitted, the communication protocol was transmitted as JYPW, and the PID Count was 22.

18 39. On January 6, 2015, this same 2003 Chevrolet Silverado C2500HD, YIN

19 I GCHC23U83FI77451, California License Plate 7C22435, failed a Smog Check Inspection at

20 another facility. During this inspection, the correct eYIN I GCHC23U83Fl77451 was

21 transmitted, the communication protocol was transmitted as JYPW, and the PID Count was 22.

22 40. Additionally, the OIS Test Data shows a 2005 Toyota 4Runner SR5, eYIN

23 JTEZU14R050043590, as the vehicle used to generate the fraudulent Smog Certificate of

24 Compliance for the 2003 Chevrolet Silverado C2500HD. On June 27,2015, the 2005 Toyota

25 4Runner SR5 passed a Smog Check Inspection. During that inspection, the 2005 Toyota 4Runner

26 SR5 transmitted eYIN JTEZU14R050043590, the communication protocol transmitted as

27 ICANllbt5, and the PID Count was 44. The OIS Test Data transmitted for the 2005 Toyota

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4Runner SR5 matches the OIS Data for the fraudulent inspection of the 2003 Chevrolet Silverado

2 C2500HD for the eYIN, protocol and PID count.

3 41. The discrepancies in the OIS Test Data establish that the OIS DAD was not connected

4 to the 2003 Chevrolet Silverado C2500HD when it was being certified, resulting in the issuance

5 of a fraudulent Smog Certificate of Compliance.

6 Clean Plug #3, May 23,2016

7 42. On May 23,2016, a 2005 Toyota Prius, YIN JTDKB20U453013230, California

8 License Plate 5LJT531, was inspected and smog certificate #QC327465C was issued. The

9 Licensed Smog Check Inspector was Respondent Tran. The Licensed Smog Check Station was

10 Respondent Pham, dba Alpha Auto Repair. The OIS Test Detail for the 2005 Toyota Prius

II showed no e YIN was transmitted, the communication protocol was transmitted as 1914, and the

12 PIDCountwas 17.

13 43. Test data contained within the Bureau's Smog Check data base showed that similar

14 2005 Toyota Prius vehicles transmit their eYIN, the expected communication protocol is

]5 ICANI!bt5, and the expected PID Count is 37/21117 or 37/21/5.

]6 44. On December I, 2015, this same 2005 Toyota Prius vehicle failed a Smog Check

17 Inspection at another facility. During the failed inspection, the correct eYIN

]8 JTDKB20U4530 13230 was transmitted, the communication protocol transmitted as !CAN II bt5,

19 and the PID count was 37/21117.


21 to the 2005 Toyota Prius when it was being certified, resulting in the issuance of a fraudulent


23 Clean Plug #4, May 24, 2016

24 46. On May 24,2016, a 2006 Mercedes-Benz ML350, YIN 4JGBB86E46A092118,

25 California License Plate 6PZA943, was inspected and smog certificate #QC327466C was issued.


27 was Respondent Pham, dba Alpha Auto Repair. The OIS Test Detail showed that eYIN

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WBAGL63464DP69041 was transmitted, the communication protocol transmitted as KWPF, and

2 the PID Count was 23/1.


4 2006 Mercedes-Benz ML350 vehicles transmit their eYIN, the expected communication protocol

5 is ICANll bt5, and the expected PID Count is 43 or 44.

6 48. On July 14, 2014, this same 2006 Mercedes-Benz ML350, YIN

7 4JGBB86E46A092118, California License Plate 6PZA943, passed a Smog Check Inspection at

8 another facility. During this inspection, the correct e YIN 4JGBB86E46A092 I I 8 was transmitted,

9 the communication protocol was transmitted as I CAN I 1 bt5, and the PID Count was 44.

10 49. Additionally, the OIS Test Data shows a 2004 BMW 745i, eYIN

1 I WBAGL63464DP69041, as the vehicle used to generate the fraudulent Smog Certificate of

12 Compliance for the 2006 Mercedes-Benz ML350. On May 20,2016, the 2004 BMW 745i

13 passed a Smog Check Inspection at another facility. During that inspection, the 2004 BMW 745i

14 transmitted eYIN WBAGL63464DP69041, the communication protocol transmitted as KWPF,

15 and the PID Count was 23/1. The OIS Test Data transmitted for the 2004 BMW 745i matches the

16 OJS Data for the fraudulent inspection of the 2006 Mercedes-Benz ML350 for the eYIN, protocol

17 and PID count.


19 to the 2006 Mercedes-Benz ML350 when it was being certified, resulting in the issuance of a

20 fraudulent Smog Certificate of Compliance.

2 I Clean Plug #5, June 4, 2016

22 51. On June 4, 2016, a 2004 Ford E350 Super Duty, YIN IFDWE35LX4HA92012,

23 California License Plate 8L88841, was inspected and smog certificate #QC327482C was issued.



26 I FTNE I EW3CDA I 7768 was transmitted, the communication protocol transmitted as

27 ICAN!lbt5, and the PID Count was 47.

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(HUNG DUC PHAM, dbaALPHA AUTO REPAIR) ACCUSATION

52. Test data contained within the Bureau's Smog Check data base showed that similar

2 2004 Ford E350 Super Duty vehicles transmit their eYIN, the expected communication protocol

3 is JPWM, and the expected PID Count is 22.

4 53. Additionally, the OIS Test Data shows a 2012 Ford Econoline E 150, e YIN

5 IFTNEIEW3CDAI 7768, as the vehicle used to generate the fraudulent Smog Certificate of

6 Compliance for the 2004 Ford E350 Super Duty. On June 4, 2016, the same day as the 2004

7 Ford E350 Super Duty was inspected, Respondent Tran inspected the 2012 Ford Econoline El50,

8 and certified that it passed a Smog Check Inspection. During this inspection, the 2012 Ford

9 Econoline E 150 transmitted e YIN I FTNE I EW3CDA 17768, the communication protocol

10 transmitted as !CAN! I bt5, and the PID Count was 47. The OIS Test Data transmitted for the

II 2012 Ford Econoline E150 matches the OIS Data forthe fraudulent inspection of the 2004 Ford

12 E350 Super Duty for the eYIN, protocol and PID count.


14 to the 2004 Ford E350 Super Duty when it was being certified, resulting in the issuance of a


16 Clean Plug #6, June 27,2016

17 55. On June 27, 2016, a 2008 OMC Savana 03500, YIN I ODJG31 K081905714,

18 California License Plate 47652Hl, was inspected and smog certificate #QC526354C was issued.



21 transmitted as JTEZU 14R050043590, the communication protocol transmitted as !CAN II bt5,

22 and the PID Count was 44.


24 2008 OMC Savana 03500 vehicles transmit their eYIN, the expected communication protocol is

25 ICANllbt5, and the expected PID Count is 43/7.

26 57. Additionally, the OIS Test Data shows a 2005 Toyota 4Runner SRS, eYIN

27 JTEZUI4R050043590, as the vehicle used to generate the fraudulent Smog Certificate of

28 Compliance for the 2003 Chevrolet Silverado C2500HD. On June 27,2015, the 2005 Toyota

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4Runner SR5 passed a Smog Check Inspection. During that inspection, the 2005 Toyota 4Runner

2 SR5 transmitted eYIN JTEZUI4R050043590, the communication protocol transmitted as

3 !CAN! Ibt5, and the PID Count was 44. The OIS Test Data transmitted for the 2005 Toyota

4 4Runner SR5 matches the OIS Data for the fraudulent inspection of the 2008 GMC Savana

5 G3500 for the eYIN, protocol and PID count.


7 to the 2008 GMC Savana G3500 when it was being certified, resulting in the issuance of a


9 Clean Plug #7, July 18,2016

10 59. On July 18,2016, a 2003 Yolkswagon New Beetle GLS, YIN

I 1 3YWCK21 Y83M308796, California License Plate 5BKC350, was inspected and smog certificate

12 #QC526385C was issued. The Licensed Smog Check Inspector was Respondent Tran. The


14 Detail showed that eYIN WDBSK71F28FI36989 was transmitted, the communication protocol

15 transmitted as ICAN11bt5, and the PID Count was 44/12.


17 2003 Yolkswagon New Beetle GLS vehicles do not transmit their eYIN, the expected

18 communication protocol is 1914, and they transmit a PID count of 16 or 17 or 17/5 or 19/5 or 20

19 or 20/6.

20 61. On April 6, 20 I 6, this same 2003 Yolkswagon New Beetle GLS, YIN

21 3YWCK21 Y83M308796, California License Plate 5BKC350, passed a Smog Check Inspection at

22 another facility. During this inspection, no eYIN was transmitted, the communication protocol

23 was transmitted as 1914, and the PID Count was 20/6.

24 62. Additionally, the OIS Test Data shows a 2008 Mercedes-Benz SL550, eYIN

25 WDBSK71F28F136989, as the vehicle used to generate the fraudulent Smog Certificate of

26 Compliance for the 2003 Volkswagon New Beetle GLS. On July 18,2016, the same day as the

27 2003 Yolkswagon New Beetle GLS was inspected, Respondent Tran inspected the 2008

28 Mercedes-Benz SL550, and certified that it passed a Smog Check Inspection. During this

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inspection, the 2008 Mercedes-Benz SL550 transmitted eVIN WDBSK71F28Fl36989, the

2 communication protocol transmitted as ICAN11 bt5, and the PID Count was 44112. The OIS Test

3 Data transmitted for the 2008 Mercedes-Benz SL550 matches the 01S Data for the fraudulent

4 inspection of the 2003 Volkswagon New Beetle GLS for the eVIN, protocol and PID count.

5 63. The discrepancies in the OIS Test Data establish that the 01S DAD was not connected

6 to the 2003 Volkswagon New Beetle GLS when it was being certified, resulting in the issuance of

7 a fraudulent Smog Certificate of Compliance.

8 Clean Plug #8, August 12,2016

9 64. On August 12,2016, a 2005 Toyota Camry LE/XLE/SE, YIN JTDBF30K450I63364,

10 California License Plate 5NNF970, was inspected and smog certificate #ZH4029 I I C was issued.


12 was Respondent Pham, dba Alpha Auto Repair. The OIS Test Detail showed that eVIN

13 transmitted as JTEZU14R050043590, the communication protocol transmitted as ICAN1lbt5,



16 2005 Toyota Camry LE/XLE/SE vehicles transmit their eVlN, the expected communication

17 protocol is I914, and the expected PID Count is 21.

18 66. Additionally, the OIS Test Data shows a 2005 Toyota 4Runner SR5, eVIN

19 JTEZUI4R050043590, as the vehicle used to generate the fraudulent Smog Certificate of

20 Compliance for the 2005 Toyota Camry LE/XLE/SE. On June 27, 2015, the 2005 Toyota

21 4Runner SR5 passed a Smog Check Inspection. During that inspection, the 2005 Toyota 4Runner

22 SR5 transmitted eVIN JTEZU14R050043590, the communication protocol transmitted as

23 ICANllbt5, and the PID Count was 44. The OIS Test Data transmitted for the 2005 Toyota

24 4Runner SR5 matches the OIS Data for the fraudulent inspection of the 2005 Toyota Camry

25 LE/XLE/SE for the eVIN, protocol and PID count.


27 to the 2005 Toyota Camry LE/XLE/SE when it was being certified, resulting in the issuance of a


14


Clean Plug #9, August 25,2016

2 68. On August 25,2016, a 2001 Toyota Sienna LE/XLE, YIN 4T3ZFl3Cll U340093,

3 California License Plate 6BUD047, was inspected and smog certificate #ZH40292lC was issued.


5 was Respondent Pham, dba Alpha Auto Repair. The OIS Test Detail showed that eYJN

6 transmitted as JTEZU l4R050043590, the communication protocol transmitted as !CAN! I bt5,



9 2001 Toyota Sienna LE/XLE vehicles do not transmit their eYIN, the expected communication

10 protocol is 1914, and they transmit a PID Count is 20 or 20/7.

I I 70. On September 22,2015, this same 2001 Toyota Sienna LE/XLE, YIN

12 4T3ZFI3Cll U340093, California License Plate 6BUD047, passed a Smog Check Inspection at

13 another facility. During this inspection, no eYIN was transmitted, the communication protocol

14 was transmitted as I9l4, and the PID count was 20.

15 71. Additionally, the OJS Test Data shows a 2005 Toyota 4Runner SR5, eYIN

16 JTEZU I 4R050043590, as the vehicle used to generate the fraudulent Smog Certificate of

17 Compliance for the 2001 Toyota Sienna LE/XLE. On June 27, 2015, the 2005 Toyota 4Runner

I 8 SR5 passed a Smog Check Inspection. During that inspection, the 2005 Toyota 4Runner SR5

19 transmitted eYIN JTEZUI 4R050043590, the communication protocol transmitted as I CAN II bt5,

20 and the PID Count was 44. The OIS Test Data transmitted for the 2005 Toyota 4Runner SR5

21 matches the OIS Data for the fraudulent inspection of the 2001 Toyota Sienna LE/XLE for the

22 eYIN, protocol and PID count.


24 to the 200 I Toyota Sienna LE/XLE when it was being certified, resulting in the issuance of a


26 Clean Plug #10, September 7, 2016

27 73. On September 7, 2016, a 2001 Honda Civic LX, YIN 2HGES I 65X I H509732,

28 California License Plate 4PHY993, was inspected and smog certificate #ZH402939C was issued.

15


The Licensed Smog Check Inspector was Respondent Tran. The Licensed Smog Check Station

2 was Respondent Pham, dba Alpha Auto Repair. The OIS Test Detail showed that eVIN

3 transmitted as JTEZUI4R050043590, the communication protocol transmitted as ICAN!lbt5,



6 2001 Honda Civic LX vehicles do not transmit their eVIN, the expected communication protocol

7 is 1914, and the expected PID Count is 16 or 17.



10 Compliance for the 2001 Honda Civic LX. On June 27,2015, the 2005 Toyota 4Runner SR5

II passed a Smog Check Inspection. During that inspection, the 2005 Toyota 4Runner SR5

12 transmitted eVIN JTEZU14R050043590, the communication protocol transmitted as ICANI!bt5,

13 and the PID Count was 44. The O!S Test Data transmitted for the 2005 Toyota 4Runner SR5

14 matches the O!S Data for the fraudulent inspection of the 2001 Honda Civic LX for the eVIN,

15 protocol and PID count.


17 to the 200 I Honda Civic LX when it was being certified, resulting in the issuance of a fraudulent


I 9 Clean Plug #11, September 14, 2016

20 77. On September 14,2016, a 2008 Toyota Corolla CE/LE/S, YIN

21 INXBR32El8Z992657, California License Plate 6ARH002, was inspected and smog certificate

22 #ZH402949C was issued. The Licensed Smog Check Inspector was Respondent Tran. The


24 Detail showed that eVIN transmitted as JTEZU14R050043590, the communication protocol

25 transmitted as ICANI!bt5, and the PID Count was 44.


27 2008 Toyota Corolla CE/LE/S vehicles transmit their eVIN, the expected communication protocol

28 is !CAN II bt5, and they transmit a PID Count is 37 or 39.

16


79. On March 24, 2015, this same 2008 Toyota Corolla CE/LE/S, YIN

2 1 NXBR32E 18Z992657, California License Plate 6ARH002, passed a Smog Check Inspection at

3 another facility. During this inspection, eYIN 1 NXBR32EI8Z992657 was transmitted, the

4 communication protocol was transmitted as !CAN II bt5, and the PID Count was 39.

5 80. Additionally, the OIS Test Data shows a 2005 Toyota 4Runner SR5, eYIN


7 Compliance for the 2008 Toyota Corolla CE/LE/S. On June 27, 2015, the 2005 Toyota 4Runner

8 SR5 passed a Smog Check Inspection. During that inspection, the 2005 Toyota 4Runner SR5

9 transmitted eYIN JTEZU14R050043590, the communication protocol transmitted as ICAN11bt5,


11 matches the OIS Data for the fraudulent inspection of the 2008 Toyota Corolla CE/LE/S for the

12 eYIN, protocol and PID count.


14 to the 2008 Toyota Corolla CE/LE/S when it was being certified, resulting in the issuance of a


16 Clean Plug #12, October 11, 2016

17 82. On October 11,2016, a 2003 Honda Civic LX, YIN 2HGES16523H511543,

18 California License Plate 6CAK964, was inspected and smog certificate #QE141027C was issued.



21 transmitted as JTEZU14R050043590, the communication protocol transmitted as ICANll bt5,



24 2003 Honda Civic LX vehicles do not transmit their eYIN, the expected communication protocol

25 is 1914, and they transmit a PID Count of 17.

26 84. On September 5, 2014, this same 2003 Honda Civic LX, YIN 2HGES 16523H511543,

27 California License Plate 6CAK964, passed a Smog Check Inspection at another facility. During

28

17


that inspection, no e YIN was transmitted, the communication protocol was transmitted as I9 I 4,




5 Compliance for the 2003 Honda Civic LX. On June 27, 2015, the 2005 Toyota 4Runner SR5

6 passed a Smog Check Inspection. During that inspection, the 2005 Toyota 4Runner SR5

7 transmitted eYIN JTEZU14R050043590, the communication protocol transmitted as ICANllbt5,


9 matches the OIS Data for the fraudulent inspection of the 2003 Honda Civic LX for the eYIN,

10 protocol and PID count.

II 86. The discrepancies in the OIS Test Data establish that the OIS DAD was not connected

12 to the 2003 Honda Civic LX when it was being certified, resulting in the issuance of a fraudulent


14 FIRST CAUSE FOR DISCIPLINE

15 (Misleading Statements- Registration)

16 87. Respondent Pham, dba Alpha Auto Repair, has subjected his registration to discipline

17 under Code section 9884.7, subdivision (a)( 1), in that he made statements which he knew or

18 which by exercise of reasonable care he should have known were untrue or misleading, as set

19 forth above in paragraphs 30-89, above. Respondent Pham, dba Alpha Auto Repair, fraudulently

20 purported to test the twelve ( 12) vehicles, and certified that the twelve (12) vehicles passed

21 inspection and were in compliance with applicable laws and regulations. In fact, Respondent

22 Pham, dba Alpha Auto Repair, conducted the inspections on those vehicles using clean-plugging

23 methods. Allowing Respondent Pham, dba Alpha Auto Repair, to continue to practice would

24 endanger the public.

25 SECOND CAUSE FOR DISCIPLINE

26 (Fraud -Registration)

27 88. Respondent Pham, dba Alpha Auto Repair, has subjected his registration to discipline

28 under Code section 9884.7, subdivision (a)(4), in that he committed acts which constitute fraud,

18


as set forth above in paragraphs 30-89 above. Allowing Respondent Pham, dba Alpha Auto

2 Repair, to continue to practice would endanger the public.

3 THIRD CAUSE FOR DISCIPLINE

4 (Violation of the Motor Vehicle Inspection Program- Smog Station License)

5 89. Respondent Pham, dba Alpha Auto Repair, has subjected his station license to

6 discipline under Health and Safety Code section 44072.2, subdivisions (a) and (c), in that he

7 violated sections of that Code and applicable regulations, as set forth above in paragraphs 30-89,

8 as follows:

9 a. Section 44012: Respondent Pham, dba Alpha Auto Repair, failed to ensure that the

10 emission control tests were performed on those vehicles in accordance with procedures prescribed

II by the department.

12 b. Section 3340.24, subdivision (c): Respondent Pham, dba Alpha Auto Repair, falsely

13 or fraudulently issued electronic certificates of compliance for those vehicles without performing

14 bona fide inspections of the emission control devices and systems on the vehicles as required by

15 Health and Safety Code section 44012.

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17

18

19

20

21

22

23

24

25

26

27

28

c. Section 3340.35, subdivision (c): Respondent Pham, dba Alpha Auto Repair, issued

electronic certificates of compliance even though those vehicles had not been inspected in

accordance with section 3340.42.

d. Section 3340.41, subdivision (c): Respondent Pham, dba Alpha Auto Repair,

entered false information into an inspections system about the vehicle being tested.

e. Section 3340.42: Respondent Pham, dba Alpha Auto Repair, failed to conduct the

required smog tests and inspections on those vehicles in accordance with the Bureau's

specifications.

f. Section 3340.45: Respondent Pham, dba Alpha Auto Repair, failed to conduct the

required smog tests and inspections on those vehicles in accordance with the Bureau's smog

check procedures manuals.

Ill

Ill

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3

4

5

6

7

8

9

10

II

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FOURTH CAUSE FOR DISCIPLINE

(Dishonesty, Fraud or Deceit- Smog Station License)

90. Respondent Pham, dba Alpha Auto Repair, subjected his station license to

suspension/discipline under Health and Safety Code section 44072.2, subdivision (d), in that he

committed acts involving dishonesty, fraud or deceit, whereby another was injured by issuing

electronic certificates of com pi iance for vehicles without performing bona fide inspections of the

emission control devices and systems on the vehicles, thereby depriving the People of the State of

California of the protection afforded by the Motor Vehicle Inspection Program, as set forth above

in paragraphs 30-89, above.

FIFTH CAUSE FOR DISCIPLINE

(Violations of the Motor Vehicle Inspection Program- Smog Check Licenses)

91. Respondent Tran has subjected his Smog Check Inspector license to discipline under

Health and Safety Code section and 44072.2, subdivisions (a) and (c), in that he violated sections

of that Code and applicable regulations, as set forth above in paragraphs 30-89, as follows:

a. Section 44012: Respondent Tran failed to ensure that the emission control tests were

performed on those vehicles in accordance with procedures prescribed by the department.

b. Section 44059: Respondent Tran willfully made false entries for the electronic

18 certificates of compliance by certifying that those vehicles had been inspected as required when,

I 9 in fact, they had not.

20 c. Section 3340.24, subdivision (c): Respondent Tran falsely or fraudulently issued

21 electronic certificates of compliance for those vehicles without performing bona fide inspections

22 of the emission control devices and systems on the vehicles as required by Health and Safety

23 Code section 44012.

24

25

26

27

28

d. Section 3340.30, subdivision (a): Respondent Tran failed to inspect and test those

vehicles in accordance with Health and Safety Code section 44012 and California code of

Regulations title I 6, section 3340.42.

e. Section 3340.41, subdivision (c): Respondent Tran entered false information into an

inspections system about the vehicle being tested.

20


f. Section 3340.42: Respondent Tran failed to conduct the required smog tests and

2 inspections on those vehicles in accordance with the Bureau's specifications.

3 g. Section 3340.45: Respondent Tran failed to conduct the required smog tests and

4 inspections on those vehicles in accordance with the Bureau's smog check procedures manuals.

5 SIXTH CAUSE FOR DISCIPLINE

6 (Dishonesty, Fraud or Deceit- Smog Check Licenses)

7 92. Respondent Tran subjected his Smog Check Inspector License to discipline under

8 Health and Safety Code section 44072.2, subdivision (d), in that he committed acts involving

9 dishonesty, fraud or deceit, whereby another was injured by issuing electronic certificates of

10 compliance for vehicles without performing bona fide inspections of the emission control devices

I I and systems on the vehicles, thereby depriving the People of the State of California of the

12 protection afforded by the Motor Vehicle Inspection Program, as set forth above in paragraphs 30-

13 89.

14 OTHER MATTERS

15 93. Pursuant to Code section 9884.7, subdivision (c), the Director may suspend, revoke,

16 or place on probation the registration for all places of business operated in this state by

I 7 Respondent Pham, doing business as Alpha Auto Repair, upon a finding that Respondent Pham,

18 doing business as Alpha Auto Repair has, or is, engaged in a course of repeated and willful

19 violations of the laws and regulations pertaining to an automotive repair dealer.

20 94. Pursuant to Health & Safety Code section 44072.8, if Respondent Pham, doing

21 business as Alpha Auto Repair's Station License Number RC 222260 is revoked or suspended,

22 any additional license issued under Chapter 5 of Part 5 of Division 26 of Health and Safety Code

23 in the name of said licensee may be likewise revoked or suspended by the director.

24 95. Pursuant to Health & Safety Code section 44072.8, if Respondent Tran's Smog Check

25 Repair Technician (EI) License No. 140411 and Smog Check Inspector (EO) License No. 140411

26 are revoked or suspended, any additional license issued under Chapter 5 of Part 5 of Division 26

27 of Health and Safety Code in the name of said licensee may be likewise revoked or suspended by

28 the director.

21


PRAYER

2 WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,

3 and that following the hearing, the Director of Consumer Affairs issue a decision:

4 I. Revoking or suspending Automotive Repair Dealer Registration Number ARD

5 222260, issued to Respondent Pham, doing business as Alpha Auto Repair;

6 2. Revoking or suspending Smog Check Station License Number RC 222260, issued to

7 Respondent Pham, doing business as Alpha Auto Repair;

8 3. Revoking or suspending any additional Automotive Repair Dealer Registration or

9 Smog Check Station License issued to Respondent Pham, doing business as Alpha Auto Repair;

10 4. Revoking or suspending Smog Check Repair Technician (El) License No. 140411 and

11 Smog Check Inspector (EO) License No. 14041! issued to Respondent Tran;

12 5. Revoking or suspending any additional Smog Check Repair Technician (E1) License

13 or Smog Check Inspector (EO) License issued to Respondent Tran;

14 6. Ordering Respondents to pay the Bureau of Automotive Repair the reasonable costs

15 of the investigation and enforcement of this case, pursuant to Business and Professions Code

16 section 125.3; and,

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7. Taking such other and further action as deemed necessary and proper.

DATED:(c:::-.-~~erz.;; Z4?/' \ i , ~ ' . .. ~P""A"'T"'R""1ccC~K~D~O~R~A~IS~~-==5f:.~!---~~""=---~

SF20l7203848 41808914.doc

Chief Bureau of Automotive Repair Department of Consumer Affairs State of California Complainant

22 (HUNG DUC PHAM, dba ALPHA AUTO REPAIR) ACCUSATION

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