BEFORE THE DIRECTOR DEPARTMENT OF CONSUMER AFFAIRS

BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

In the Matter of the Accusation Against:

BEST AMERICAN TIRE & WHEEL WAQAS ALI, OWNER 6303 Watt Avenue Sacramento , CA 95660

Automotive Repair Dealer Registration License No. ARD 262370

Respondent.

Case Nos. 77/15-31

OAH No. 2015020641

DECISION AFTER RECONSIDERATION

On July 6, 2015, the Director (Director) of the Department of Consumer Affairs (Department) issued a Decision adopting the Proposed Decision of the Administrative Law Judge, to become effective on August 14, 2015. Subsequently, Respondent timely submitted a petition for reconsideration.

On August 12, 2015, the Director issued an Order Granting 1 O-Day Stay of Effective Date of Decision; Consideration of Petition for Reconsideration, staying the effective date of the Decision until August 23, 2015. On August 21 , 2015, the Director issued an Order Granting Hearing for Reconsideration providing the parties with the opportunity to submit written argument no later than September 28, 2015. Both parties timely submitted written argument.

The Director, having read and conside red the entire record, including the arguments submitted , hereby adopts the attached Decision as the Decision in the above-entitled matter.

This Decision shall become effective on $VpWYl bo- 13" [)O J 0 .

Supervising Attorney Division of Legal Affairs Department of Consumer Affairs

BEFORE THE DIRECTOR DEPARTMENT OF CONSUMER AFFAIRS

BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

In the Matter of the Accusation Against:

BEST AMERICAN TIRE & WHEEL

WAQAS ALI , Owner

Automotive Repair Dealer Registration No. ARD 262370

Respondent.

Case No. 77/15-31

OAH No. 2015020641

DECISION

The attached Proposed Decision of the Administrative Law Judge is hereby accepted and adopted by the Director of Consumer Affai rs as the Decision in the above­entitled matter.

This Decision shall become effective Auqru st I Li) aD 1.5

TAMARA COLSON Assistant General Counsel Department of Consumer Affairs

BEFORE THE BUREAU OF AUTOMOTIVE REPAIR

DEPARTMENT OF CQNSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against:

BEST AMERICAN TIRE & WHEEL

W AQAS ALI, Owner

Automotive Repair Dealer Registration No. ARD 262370

Respondent.

Case No. 77/15-31

OAHNo.2015020641

PROPOSED DECISION

This matter was heard before Administrative Law Judge Dian M. Vorters, State of California, Office of Administrative Hearings, on March 30, 2015, in Sacramento, Califomia.

David E. Brice, Deputy Attorney General, represented Patrick Dorais (complainant), Chief ofthe Bureau of Automotive Repair (Bureau).

Waqas AU (respondent), was present and represented himself. Ahsan Ali, respondent's brother, was also present to assist respondent.

The matter was submitted for decision onM31'ch 30, 2015.

FACTUAL FINDINGS

License Histoty

1. Complainant filed the Accusation jn his official capacity on J31lUary 14,2015. The Accusation seeks to discipline respondent's Automotive Repair Dealer (ARD) registration for numerous alleged violations of law as set forth below.

2. On Jlme 25, 2010, the Bureau issued ARD registration No. ARD 262370 (registration) to respondent, doing business as Best American Tire & Wheel (Best

American), in North Highlands. The ARD registration was current and in full force and effect at all relevant times, and is set to expire on April 30, 2016.

3. As pati of its effort to enforce laws governing automotive repair businesses (Automotive Repair Act), the Bureau provides training, investigates complaints, and conducts undercover operations. (Bus. & Prof. Code, § 9880, et seq.)

a. On October 26, 2010, shOlily after respondent became licensed, Bmeau representative Travis White visited respondent at his facility to educate him on compliance with the Automotive Repair Act. At the on-site conference conducted under the Education First Progranl, Mr. White discussed with respondent the necessity of proper documentation, customer authorization, and retention of estimates and invoices for at least three years. Respondent was also given a "Write it Right" booklet and contact information for future questions. Respondent signed an Inspection Report on October 26,2010, acknowledging compliatlCe visit. However, at hearing respondent denied that any education conference took place. He stated, "We· applied for the license and we got it. No one catlle out to give me information."

b. On November 14, 2013, after receiving several complaints against respondent, the Bureau held another education conference .with respondent. Respondent was informed of a pattern of violations relating to the Automotive Repair Act and given another copy of the "Write it Kight" booklet and other legal authority.

4. Denis O. Rakitskiy is a Program Representative in the Bureau's Sacratllento Field Office. He is responsible for investigating and mediating consumer complaints. Mr. Rakitskiy has 15 years of automotive repair experience and is an Automotive Service Excellence CASE) certified master technician. Mr. Rakitskiy investigated the five consumer complaints filed against respondent in 2012 and 2013, wrote investigative reports, and testified at hearing. . .

Consumer Complaint of J.G., 1998 Chrysler Concorde

5. J.G. was the owner ofa 1998 Chrysler Concorde. On June 3, 2013, J,G. took his car to respondent's shop because it was overheating. Kenneth Melton was a mechanic at the shop. Mr. Melton told J.G. he would need to diagnose the problem. J.G. testified that he left for 30 minutes, "came back and sat there." In his declat"ation he stated, "I waited at the facility for the results of the inspection." Mr. Melton, whoJ.G. referred to as "Kenny," told J.G. that the Cat" required a new motor. lG. gave Mr. Melton a $3,000 cash deposit and verbal authorization. J .G. did not receive a written estimate or ,my other documentation before leaving his car at the shop.

6. According to J.G., a week later, "I received a call from Best American Tire & W11eel informing me the repairs had been completed." His wife (K.Fi.) picked up the Cat", giving Mr. Melton $1,200 in cash as the balance owed on the transaction. K.F. received a "Best American Tire & Wheel" invoice dated June 3, 2013. Tliis invoice contained the

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address, phone, and registration number for respondent's shop. The invoice contained J.G.'s initial complaint as: "check engine light is on, car is making loud noise, need to Diag [sic] the problem ... water pump is leaking ... donut is broken." The recommended service was "replace engine." The invoice also stated, "Payed [sic] cash, no Tax. $4,200." The invoice contained no odometer reading, no authorization for work to be performed, and no itemization of chru-ges for radiator fluid, oil filter, and engine oil.

. 7. J,G. testified that after a month the engine "stmted overheating again," it was the "san1e problem." He called Ml'. Melton's personal number at least five times but could not get ahold of him. J.G. stated that his friend looked at the engine and suspected it had not been replaced. J.G. contacted the Bureau who sent a representative and confirmed the presence of the original engine (the number on the engine part (WIlJ59194) matched the last eight chmacters of the em's Vehicle Identification Number (VIN». If the engine had been replaced, it would be ru1 "after-mmket" replacement pm! or a used engine containing the engine/VIN number of the vehicle it came from.

8. As part of his investigation, Mr. Rakitskiy interviewed the consumers J.G., K.F., and technician Mr. Melton, all of whom gave declmations signed under penalty of perjury. He also interviewed respondent.

9. 11r. Melton testified consistent with his signed decimation. He was a mechanic at Best Americru1 hi June 7.013, and his boss was "Victor" who he positively identified as respondent at heming. Ml'. Melton stated he did not typically handle money; except, on small jobs, for exrunple tire sales, when he would accept payment, write a receipt, ru1d give the money to respondent. When a car came in, Ml'. Melton would diagnose the problem inform respondent. Mr. Melton stated that respondent kept a list of places where they could get pru-ts for cheap. Mr. Melton would call around for pruis, work on the cmin the bay, and push the car to the lot at the end of the day.

10. Mr. Melton and respondent were at the shop when J.G. drove in with. a complaint that the engine of his 1998 Clu·ysler was overheating. Ml'. Melton stated he liked to give best and worst case scenarios prior to diagnosing the actual problem. He told respondent that the car either had a cracked gasket or head, or worst case, needed an engine replacement which would cost approximately $4,000 to $5,000. Ml'. Melton then performed a diagnostic in one ofthe shop's bays. When he got the motor out, he confirmed that it just had a "blown head gasket.". l'Yil'. Melton told respondent his findings; however, respondent instructed MI'. Melton to replace the gasket and seals and clean the engine up the "best we can." Respondent and Mr. Melton told J.G. he needed a brand new engine. Mr. Melton testified, "We lied to the customer." Mr. Melton saw J. G. give respondent a cash deposit at the front desk.

The car was at the shop for about a week. Mr. Melton recalled that a lady can1e in and paid the balance in cash to respondent at the front counter. Mr. Melton stated that the cash was "counted out in front of both of us." And, "as usual," respondent took care of the

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money and Mr. Melton explained the mechanics. Respondent put the cash in a lock box in the bac){ roomwhere he keeps his money. Mr. Melton gave the woman a copy ofthe receipt.

11. Mr. Melton admitted lying to the customer at respondent's request. He followed respondent's instruction because he was afraid oflosiilg his job. Mr. Melton was reluctant to participate in the fraudulent transaction and quit shortly thereafter. H.e stated that he had "kids to feed," and did what he had to do.

12. Prior to hearing, respondent told Mr. Rakitskiy that his shop had not performed any repairs on J.G. 's car, and denied collecting $4,200 cash from the customer. Another Bureau investigator, Jeff Hammer, accompanied Mr. Rakitskiy on a field visit to respondent's shop on February 18, 2014. Mr. Hammer is a Program Representative III and has worked for the Bureau for 13 years. Mr. Hammer prepared a declaration of respondent's interview and testified at hearing to the following relevant information:

Investigators showed respondent the Best American invoice dated June 3, 2013, charging' $4,200 for a new engine in a 1998 Chrysler. Respondent stated, "Anyone could have printed that invoice" and that it was not from his shop. Respondent stated that he was the "only one" who filled out invoices at Best American. When investigators showed respondent another invoice that was written by Mr. Melton, respondent conceded that "Kenny" did write some repair orderslinvoices. Investigators asked respondent if he was at the shop the week of June 3, 2013 (a Monday). Kespondent stated he was at the shop every day and had not taken a vacation in over a year. Respondent insisted that the 1998 Chrysler in question had never been at his shop.

When shown a pictnre of the car, respondent stated that he might have replaced the oil pan on this car within the last year. When Mr. Rakitskiy questioned respondent about his previous comment that the cal' had never been at the shop, respondent did not reply. He then reverted to his position that the car had never been to tl1e shop and stated he had video to prove that. He went into his shop area and returned 10 minutes later stating the video only went back 30 days. Respondent stated that someone burglarized the premises in June 20l3, and stole scarmers and a television. No invoices were stolen. Respondent stated that Mr. Melton was employed there in June 2013, and he "quit" on July 1,2013, because "he could make more money at the other shop."

13. At hearing, respondent denied being at the shop on the day of the transaction or having ever seen J.G. before. He stated that Mr. Melton received the money and dealt with everything. He stated that Mr. Melton was lying and had fraudulently used their invoice. He confirmed that Mr. Melton worked for him from November 7,2012, to July 3, 2013. Oddly, at hearing, he accused Mr. Melton of having stolen tires from him in March or April 2013. It is noted that he did not mention this at the field visit in February 2014. Respondent stated that the customer, lG., had "withdrawn" his complaint because he realized that Mr. Melton had taken the money. Respondent admitted that his brother, Ahsan Ali, contacted J.G. by phone: They obtained lG.'s phone number from the "BAR's discovery documents."

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An employee named Waheed Muhl11mad testified on respondent's behalf. Mr. Muhl11mad has worked for respondent for four years. Mr. Muhmmad stated that he was present at the shop on June 3, 2013, along with respondent, Mr. Melton, and "Ripon." This contradicts respondent's testimony. Mr. Muhmmad denied seeing Mr. Melton working on the 1998 Chrysler Concorde at the shop. He denied seeing the Chrysler parked at the shop during that week.

Attemptto Withdraw Complaint on 1998 Chrysler

14. In mid-January 2015, J.O. wrote a letter to the Bureau in an attempt to withdraw his complaint. At hearing, he explained that he had "heard" that Mr. Melton ("Kenny") had been "ripping people off." J.O. earlier wrote in his January 30, 2014 declaration that the inspection on his car tookan hour and that he waited at the facility for the results. At hearing, he first stated that he left for 30 minutes arId returned to await the results of the diagnostic at the shop. However, on cross-examination, he testified that he alTived at the shop after 7:00 p.m. and the shop "was yiosed for business." J.G. stated that he met Mr. Melton outside and Mr. Melton was not wearing anything to identify him as an employee of Best American. The "cm' sat in the parking lot." J.O. testified that he did not see Mr. Melton take the car into the facility for diagnostics.

J.O. stated that he always called Mr, Melton's personal phone number and novel' called the shop directly, even after the car started overheating again. When asked why he did not call the shop number, he stated, "1 have no idea." He paid cash because "I don't like to use the banking system," He gave Mr. Melton $3,000, and when he asked for a receipt, Mr. Melton allegedly told him he would give him a receipt when he finished paying for the work. J.O. did not Imow what time of day his wife picked up the car.

15. J.O.'s testimony was inconsistent with his December 5, 2013 complaint, January 30, 2014 declaration, and other evidence. When he completed the Bureau complaint form, he provided the conect address and shop phone number for Best American, not Mr. Melton's private phone number which he testified that he used exclusively. J.O.'s testimony that the shop was closed also contradicted his earlier statements that he "sat there" and "waited at the facility" for the inspection results. (Factual Finding 5.) J.O. 's post-I anuary 2015 statements reflect an obvious effort to distance respondent from the transaction and place all of the blame on Mr. Melton.

Credibility Assessment

16. Evidence supports a finding that J.O. was contacted by respondent and/or his' brother Ahsan Ali, in or before mid-January 2015. Though the content of their conversation is unknown, after speaking to Ahsan Ali, J.O. changed his statement of events and attempted to withdraw his complaint. The statements of respondent and later statements ofJ.O. are internally inconsistent, inconsistent with other evidence, and not credible. Conversely, Mr. Melton's testimony was candid and forll11'ight. Mr. Melton's admission that he lied to the

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customer is against his self-interest and lends credibility to his later actions and statements. Mr. Melton's declaration, statements to investigators, and testimony were internally consistent and supported by other evidence. As such, Mr.·Melton's statements are given greater weight in this decision.

17. In the matter of the 1998 Chrysler Concorde, clear and convincing evidence supports a finding that respondent violated the Automotive Repair Act in .that he: 1) engaged in misleading statements, 2) failed to record the odometer reading, 3) engaged in fraud, 4) did not provide a written estimate to the customer, and 5) did not itemize prices for oil, filter, and coolant on the invoice. (Bus. & Prof. Code, §§ 9884.7, subd. (a)(I), (2), (4), (6); Cal. Code. Regs., tit. 16, § 3356, suM (a)(2)(B).)

Consumer Complaint o/Y.D., 200911yundai Accent

18. Y.D. was the owner of a 2009 Hyundai Accent. On September 20,2012, Y.D. took his car to respondent'.s shop for an alignment. He gave them his driver's license and car key and waited .. Y.D. overheard a mechanic tell respondent th~y could not do the alignment because they needed parts. When Y.D. asked for his license and keys back he was told, "No, you need to pay $35." Y.D. asked why he needed to pay when "you did nothing." Y.D. was told that the next time he came in, they would do an alignment for free. Y.D. told them he would complain and was told, "Go ahead, complain." Y.D. paid the money and left. When he got home, his daughter assisted in filing an on-line complaint with the Bureau on September 21,2012. Y.D. testitled that respondent "did nothing and charged money." The next day, Y.D. took his car to another shop and got an alignment with no extra parts.

19. Doug Brown is a Program Representative II for the Bureau. He has 15 years of experience as an automotive tecbnician ,mel is an ASE certified master technician. Mr. Brown investigated Y.D.'s complaint, prepared a report, and testified at hearing. According to Mr. Brown, the Bureau found that respondent did perform an alignment but respondent also·identified a problem with theJeft side camber. Respondent wanted to install a camber kit but Y.D, declined the repair. Mr. Brown obtained a copy ofthe wheel alignment printout and invoice given to Y.D. in the an10unt of $30. These documents do not contain an odometer reading. On October 31, 2012, respondent refunded the $30 paid by Y.D.

20. Respondent testified that his shop performed the tool alignment in the front and rear of the 2009 Byundai. Be stated they did a "tow adjustment," and told Y.D. the car needed a left front "camber kit" and to return within the warranty time. Written on the wheel alignment printout is a note: "LF CAMBER KIT."

21. In the matter of the 2009 Hyundai Accent, clear and convincing evidence supports a finding that respondent violated the Automotive Rcpair Act by failing to record the odometer reading on the invoice. (Bus. & Prof. Code, § 9884.7, subel. (a)(2).)

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Consumer Complaint of s.D., 1999 Buick Regal

22. S.D. was the owner ofa 1999 BuickRegal. On September 26,2012, S.D.'s daughter (on behalf of her mother), filed an on-line complaint with the Bureau about respondent's many failed attempts t.o diagnose and repair S.D.' s car as follows:

a. On September 14,2012, S.D. took her car to respondent's shop to diagnose a coolant leak. Respondent's shop replaced upper ancllower gaskets and added oil for· $390. No written estimate was provided. The invoice did not show a cost breakdown of pm·ts (gasket set, one gallon coolant, elbows, Stlper oil chm'ger), labor, and tax.

b. On September 21 ,2012, S.D. took her car to respondent's shop to diagnose engine noise. Shortly after S.D. picked it up, it overheated. She returned the smne day. Respondent's shop replaced a "bleeder" at no cost. S.D. drove the car less than two miles and the car shut off. She placed it in park and restarted the car. The next morning, she drove the car for tlU'ee miles and it continued to overheat and shut off.

c. On September 22, 2012, S.D. returned to respondent's shop to diagnose the overheating and shut off problem. She left the car for a diagnostic. Respondent "Victor" called to tell her they found loose connections from the previous job. They tightened the connection.~ and S.D. picked up the car. When S.D. arrived, she noted that the car's air conditioning (AJC) was on. Respondent told her it was okay to turn the AIC off and that the overheating problem was fixed. S.D. drove away from the shop, turned off the AIC, mld theclU' overheated and shut off again. S.D. returned the same day before the shop closed. When later picked up tIle car, she was not provided any diagnostic information, only that they had "fixed" something.

d. On September 23,2012, S.D. was driving and the car shut off. She had the car towed to her home. She lifted the hood and found electrical tape around a hose and a pair of repair goggles. They charged the battery, the engine stm1ed, mld made a loud noise. S.D. took the car back to respondent's shop.

e. On September 24, 2012, a technichm at respondents shop named "Dave" called S.D. to teUher that the· "push rods" needed to be replaced. The part would cost $80, but the labor would be free .. His explanation was that it was a "mechanical fluke"but guar,mteed this would fix all problems. Respondent "Victor" explained to S.D. that only the "mmlifold" was replaced, not the "gasket set."

f. On September 25,2012, Dave called mld said the "push rods" were fixed but the fuel pump went out. S.D. told him she would cail back.

g. On September 26,2012, S.D. called and spoke to Dave who told her that in addition to a "fllel pump," a new motor was needed. The explanation again was "mechanical fluke."

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23. Bureau investigator Doug Brown investigated S.D.'s complaint, prepared a report, and testified at hearing. Mr. Brown made a field visit to respondent's shop on October 31, 2012. He obtained copies of the invoices from respondent and interviewed Dave. Dave told him that he replaced the lower intake gasket. He recommended an oil and oil filter change but the customer declined. He cleaned the gasket material with a cleaning disk (surface conditioning disk): When the cal' was returned, he found the push rods were damaged because the engine had no pressure. He removed the intake rods and cleaned them with "surface conditioning disks." Respondent and Dave showed Mr. Brown the cleaning disk they were using to clean the engine.

Mr. Brown informed them that according to the Alldata Technical Service Bulletin (Bulletin), they are not supposed to use a cleeming disk on General Motors (GM) engines. Mr. Brown explained that when they used the cleaning disk, they put gasket and cleaning disk particles in the engine along with any coolant that leaked into the engine when the intake manifold was removed. He also told them thatthe engine could have been damaged when they used the cleaning disk without changing the engine oil. DelVe stated he did not lmow he could not use a cleaning disk on GM engines.

24. Mr. Brown printed a copy of the Alldata Bulletin on GM cars. This service manual is publicly available and used for course instruction. The Bulletin provides the recommended and alternative cleaning procedures and warns against improper cleaning procedures. In the section entitled: "Engine - Use of Surface Conditioning Disks" it states:

Notice - Do not use abrasive pad/bristle devices to clean the gasket surfaces of engine components. Abrasive pads should not be used for the following reasons: Abrasive pads will produce fine grit that the oil filter wi1lnot be able to remove from the oil. THIS GRIT IS ABRASIVE AND HAS BEEN KNOWN TO CAUSE INTERNAL ENGlNE DAMAGE. Abrasive pads can easily remove enough material to round cylinder head surfaces. This has been lmown to affect the gasket's ability to seal, especially in the narrow seal areas

. between the combustion chambers and coolant jackets.... (Bold and Gapitalizationin original.) .

25. Mr. Brown reviewed the invoices he obtained from respondent. An invoice dated June 14, 2012, did not indicate the quantity 01' price of the gasket and the technician wrote a phone number in the odometer field. An invoice dated October 8, 2012, was not signed by the customer as is required for a written estimate.

26. Respondent testified about the work on the 1999 Buick Regal and the customer's repeated returns. Be explained there was no mileage on the invoice because the odometer was not working and the customer stated it had 190,000 miles. They thought it had a "bad rod." Tbe Bureau told them they had. used "the wrong scrub pad." But respondent stated that he purchased the manifold gaskets and serub pads from 0 'Reilly Auto Parts from

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whom they confirmed how to change upper and lower manifold gaskets, Respondent ultimately came to an "agreement" Witil the cllstomer and the case was closed by tile Bureau.

27. In the matter of the 1999 Buick Regal, clear and convincing evidence supports a finding that respondent violated the Automotive Repair Act in that he: 1) failed to record the odometer reading on the invoice, 2) failed to provide written estimates for diagnosis and . repair, 3) departed from trade standards, and 4) failed to itemize quantity and cost of parts on the invoice; (Bus. & Prof. Code, §§ 9884.7, subd. (a)(2), (6), (7); Cal. Code Regs, tit. 16, § 3356, subd. (a)(2)(B).)

Consumer Complaint of s. G., 1999 Ford Ranger

28. S.G. was the owner of a 1999 Ford Ranger. S.G. filed a complaint with the Bureau on April 10, 2013,for respondent's failure to fix her car properly and ref'usal to honor the warranty. She testlfied at hearing to the following repair issues:

a. On November 15,2012, S.G. had her car towed to respondent's shop because it would not start. Respondent told her the car had an "alternator" problem. After S.G. picked up the .car, she smelled fuel. On November 16,2012, she returned to respondent's shop and was told she n.eeded a "fuel pump." The repair was.performed for $259. S.G. picked up the car and drove to a gas station. As she pumped gas into the tank, "gasoline poured right out onto the grotmd." S.O. stated that she "panicked" and called respondent's shop. The mechanic came out, got under the vehicle, and said, "Oh, the clamp is loose." He tightened it and resolved the problem. S.G. continued to smell gasoline, but was told by a Bureau representative that the problem was fixed.

b. In December 2012, S.G. heard "thumping or vibration" that was not normal. She returned to respondent's shop and was told by the technician that she needed a power steering pump .. He installed a new power steering pump, but the problem persisted. She returned again to respondent's shop and was told it was the timing belt. The mechanic showed her that it was "slu·edded." The repairs were performed for $536.

c. In April 2013, B.G. 's air conditioning was not blowing cold air. She took it to another shop and discovered the hose was unplugged. The mechanic at the other shop charged her $10 to push it back in. S.O. went back to respondent's shop and "confronted the mechanic." He denied LUlplugging the air hose. After that, she decided not to return to respondent's shop.

29. . S.O.'s complaint was investigated by Pat McReynolds, Program Representative 1. He made a field visilto respondent's shop on May 28, 2013, requested repair records/invoices, interviewed S.G. and respondent, and prepared an investigative report of his [mdings. Mr. McReynolds reviewed the invoices ~ll1d found violations of the Automotive Repair Act, which he explained to respondent.

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JO. Bureau investigator Doug Brown testified about the violations. The November 1.6; 2012 invoice lacked an itemized list of parts installed, did not indicate whether the f'uel pump was new, used or rebuilt, and lacked customer authorization. The DecemberS, 2012 invoice lacked additional authorization to replace the invoiced components, did not indicate whether the power steering pump was new, used, or rebuilt, and the timing pump kit contents were not itemized with part numbers listed. The April 12, 2013 invoice did not clearly indicate whether.the O-Ring replacement was authorized initially or after the. diagnosis. The Bureau confirmed that respondent had corrected the fuelleal< problem at no charge to S.G.

31. Respondent testified about the work performed on the 19991'0rd Ranger. They ch'mged.the fuel pump, power steering pump, O-Rings, and timing belt, and installed an altemator. He stated that S.G. still complained of gas smell in Mm'ch 2013, but this issue had been resolved and the Bureau had closed the complaint.

32. In the matter of the 1999 Ford Ranger, clear and convincing evidence supports a finding tb,at respondent violated the Automotive Repair Act in that he: 1) failed to obtain a signed au.thorization from the customer on invoices as is required by law, and 2) failed to indicate on invoices whether parts were new/used/rebuilt or list the timing belt kit parts. (Bus. & Prof: Code, §§ 9884.7, subd. (a)(6), 9884.9, subd. (a); Cal. Code Regs, tit. 16, § 3356, subd. (a)(2)(B).)

Consumer Complaint of A.M., 1997 Ford F-J50

33. A.M. was the owner of a 1997 Ford 1'-150. A.M. filed a complaint with the Bureau on September 27,2013, for respondent's failure to fix his truck properly. He testified at hearing to the following service issues:

a. A.M. took his truck to Best American in mid-August 2013, to have them diagnose a noise coming from the rear of the vehicle. Best Americm1. diagnosed the noise and recommended replacing the real' axle assembly. A.M. did not have the funds, but returned on August 29, 2013, and authorized the repair. He paid $750 for the pmi. He retLll'ned on September 13, 2013, and paid the balance including $80 for gear oil that was not listed on the invoice. While driving away, he felt the truck vibrating and the alignment was off. He contacted respondent who told A.M. to drive it for a couple of days to see if the problem self-corrected.

b. Two days later, A.M. retmned to Best American to address the vibration problem. Also, he had cliscovered that some of the wheel studs (lug nuts, five on each tire) were missing. Respondent performed an alignment and wheel balance, Respondent explained that the studs were not re-used because they needed to be welded and respondent lacked the means. A.M. picked up his truck several days later. He did not receive an invoice. The alignment had improved slightly, however the truck still vibrated. A.M. noticed that additional wheel studs were missing.

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c, Several days later, AM. returned to Best American to address the vibration, aligmnent, and wheel stud issues. After a week and a half, AM. phoned to learn the status of his truck. He was told they could not resolve the vibration problem, but that the driveshaft needed to he rebalanced. A.M. declined this repair a11d picked up his truck. When respondent complained about thcmissing lug nuts, an employee joked that AM. "ate them." AM. stated that things were starting to get "a little aggressive" and he did not "feel comfortable." AM. positively identified the employee who made the joke at hearing as Wahid Muhmmad.

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d. Towards the end of September 2013, A.M. phoned respondent to discuss ongoing issues with the truck. Respondent told A.M. that the driveshaft was the likely cause ofthe vibration. He offered to replace the rear axle assembly free of charge and refund the cost of the original part, if A.M. supplied another rear axle assembly. AM. declined tilis fix and contacted the Bureau.

34.' AM.' s complaint was investigated by Mr. Rakitskiy. He made a field visit to respondent's shop on October 8, 2013, requested repair records/invoices, interviewed AM. and respondent, and prepared 8n investigative report of his findings. Mr. Rakitskiy reviewed the invoices and fOlU1d violations ofthe Automotive Repair Act. He informed respondent that repair shops were required to provide customers with a written estimate for repairs and inspections; obtain ~md properly notate authorizations for all inspections and service; clearly state 011 the invoice all parts sold, service and diagnostic work performed, alld costs of all inspections, service, and parts; and docllment on the invoice any warranty limitations. Every visit must be documented whether there was a charge or not.

35. Respondent obtained Valvoline 80W-90 gear oil from Auto Zone. I-Ie provided a September 4,2013 invoice from Auto Zone for this gear oil in the amount of $27.96. Mr. Ralcitskiy fOlmd that respondent charged AM. $80 for gear oil but did not issue an invoice or receipt.

36. Respondent stated that Auto Zone told him that he did not need an additive so he did not install any "ii'iction modifier." This conflicted with Mr. Rakitskiy's advice that respondent used the wrong engine fluid. Mr. Rakitskiy researched fluid specifications for installation of rear axles on Ford F-ISO trucks in the Alldata Service Manual and found that "friction modifier" was required for the job. Respondent testified that he did not contact the dealership for information because they are "20 minutes away" and "if you m'e 110tbuying from them, they put you on hold."

37. Respondent later offered to install friction modifier free of charge in A.M. 's tTUck and to replace the missing wheel studs. He purchased tile additive for $72.32 from the Ford dealership on October 18,2013, and provided a copy of the invoice to the Bureau investigator. Respondent installed the friction modifier inAM.'s truck on October 20, 2013. Respondent gave AM. an invoice for the service, but the invoice did not contain any charges. It simply stated: "Replace diff oil as customer ask [sic] shop to do. Stud not changed do [sic J to not in stock. Will do later." Respondent testified that the investigator

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asked for a copy of the Ford invoice, but "never mentioned we had to write the pricing on an invoice to the customer." Respondent did not have the wheel studs for AM. 's truck in stock so they were never replaced. FUliher, AM. refused to return to respondent's shop. AM.' s truck continued to experience the vibration.

38. Several invoices were deficient as follows:

a. The August 29,2013 invoice was deficient in that it: 1) did not contain the odometer reading, 2) did not itemize the rear differential assembly sold to A.M. or any fluids used such as gear oil type and amount used, 3) did not describe the diagnostic findings or reasons this rear differentia! was replaced, 4) did not contain the initial and subsequent authorizations from AM. to service the t1uck, 5) did not list total labor or describe labor, and 6) did not state whether replacement components were new, used or rebuilt.

b. The October 19,2013 invoice was deficient in that it: 1) did not itemize parts installed in the Ford F-150, orthe price for the lubricant used, and 2) did not contain the cost for labor which is required for authorization.

c. The October 20, 2013 invoice was deficient in that it: 1) did not itemize the parts or oil installed, 2) did not contain the labor cost, and 3) did not contain a written estimate for the j ob prior to obtaining A.M.' s signature authorizing the work.

39. In the matter of the 1997 Ford F-lSO, clear and convincing evidence supports a finding that respondent violated the Automotive Repair Act. (Bus. & Prof. Code, §§ 9884.7, subd. (a)(6), 9884.8, 9884.9, subd. (a); Cal. Code Regs., tit. 16, §§ 3353, suM. (a) & (c)(I), 3356, subd. (a)(2)(A) & (B).)

Costs

40. The Accusation contains a request for recoupment of costs of investigation, enforcement, and prosecution. The Bureau submitted a cost certification for investigative staff services in the amount of $7,468.25. Staff worked a total ofl04.75 hours investigating this case. Given the number of complaints involved, this anl0unt of staff time is reasonable. (Bus. & Prof. Code, §125.3, subd. (c).)

41. The Office ofthe Attorney General submitted the declaration of Davis E. Brice, Deputy Attorney General in support of the cost certification for legal/prosecution services in the total amotmt of $8,050. Attached to the declaration was a computer-generated billing printout reflecting 48.50 hours spent preparing this case. Prosecution tasks included pleading preparation, trial preparation, client communication, and case management for a total of$7,370. The prosecution also requested anticipated costs through heming of $680. Given the number of complaints and witnesses involved, costs incUlTed and established tllfOUgh March 25,3015, in

. the amount of$7,370, are reasonable.

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42. The total cost sought for investigation, enforcement, and prosecution ofthis matter through March 25,2015, is $14,838.25. This total amOlU1t is reasonable, given that this case involved five complaints, four investigators, and eight prosecution witnesses. All complaints were disputed by respondent. Additionally, respondent presented testimony on his financial ability to pay costs. Best Automotive is his sole employment. He earns $2,000 monthly, $24,000 armlJally. He lives with his parents and pays rent in the amolU1t of$I,300 to $1,400, which includes utilities. He owns a car with no payments. He is man-ied; his wife recently emigrated £i'om Pakistan, is not employed, and is pregnant

LEGAL CONCLUSIONS

Applicable Laws

1. Pursuant to Business and Professions Code section 9884.7, subdivision (a), the Bureau director may deny, suspend, revoke, or place on probation the registration of an automotive repair dealer for "any of the following acts of omissions related to the conduct of

. the business ofthe automotive repair dealer, which are done by the automotive repair dealer or any automotive technician, employee, partner, o±1icer, Of member of the automotive repair dealer."

(1) Making or authorizing in any manner or by any means whatever any statement written or oral which is untrue or misleading, and which is lmown, Of which by the exercise of reasonable care should be known, to be untrue or misleading.

(2) Causing Of allowing a customer to sign any work order that does not state the repairs requested by the customer or the automobile's odometer reading at the time of repair.

(4) Any other conduct that constitutes fraud.

[~] ... [~

(6) Failure in ,my material respect to comply with the provisions of this chapter or regulations adopted pursuant to it.

(7) Any willfiJl departurefrorn Of disregard of accepted trade standards for good and workmanlike repair in any material respect, which is prejudicial to another without consent of the owner or his or her duly authorized representative,

(8) Making false promises of a character likely to influence, persuade, or induce a customer to authorize the repair, service, or maintenance of automobiles.

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2, Pursuant to Business and Professions Code section 9884.7, subdivision (c), the director may suspend, revoke, or place on probation the registration for all places of business operated in this state by an automotive repair dealer upon a fInding that the automotive repair dealer has, or is, engaged in a course cif repeated and willful violations of applicable law and regulati on.

3, "All work done by an automotive repair dealer, including all warranty work, shall be recorded on an invoice and shall describe aU service work done and parts supplied. Service work and parts shall be listed separately on the invoice, which shal1 also state separately the subtotal prices for service work and for paTts, not including sales tax, and shall state separately the sales tax, if any, applicable to each. If any used, rebuilt, or reconditioned parts are supplied, the invoice shall clearly state that fact. If a part of a component system is composed of new and used, rebuilt or reconditioned parts, that invoice shall clearly state that fact. The invoice shall include a statement indicating whether any crash parts are original equipment manufa6tmer crash parts or nonoriginal equipment manui~\Ctureraftennarket crash parts. One copy of the invoice shall be gi yen to the customer and one copy shall be retained by the automotive repair dealer." (Bus. & Prof. Code, § 9884.8,)

4, "The automotive repair dealer shall giveto the customer a written estimated price for laborand parts necessary for a specific job. No work shall be done and no charges shall accrue before authorization to proceed is obtained from the customer. No charge shall be made for work done or parts supplied in excess of the estimated price without the oral or written consent of the customer that shall be obtained at some time after it is determined that the estimated price is insufficient and before the work not estimated is done or the parts not estimated are supplied .... If that consent is oral, the dealer shall mal(e a notation on the work order of the date, time, name of person authorizing the additional repairs, and telephone number called, if any, together with a specification of the additional parts and labor and the total additional cost, and shall do either of the following: 1) Malee a notation on the invoice of the same facts set forth in the notation on the work order, 2) Upon completion of the repairs, obtain the customer's signature or initials to an acknowledgment of notice and consent, ifthere is an oral consent of the customer to additional repairs, in the following language: 'I acknowledge notice and oral approval of an increase in the original estimated price ... '" (Bus. & Prof. Code, § 9884.9, subd. (a).)

5. California Code of Regulations, title 16, § 3356, subdivision (a) states that all invoices for service and repair work performed, and parts supplied, as provided foJ' in Section 9884.8 of the Business and Professions Code, shall comply with the following:

(2) The invoice shall seplU'ately list, describe and identify all of the following:

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(A) All service and repair work performed, including all diagnostic and warranty work, and the price for each described service and repair.

(B) Each pati supplied, in such a manner that the customer Catl wlderstatld what was purchased, at1d the price for each described part. The description of each pmt shall state whether the pati was new, used, reconditioned, rebuilt, or an OEM [original equipment mat1ufacturer] crash pali, or a non-OEM aftermarket crash part.

6. "The Automotive Repair Act (Bus. & Prof. Code, §§ 9880, et seq.) was enacted to 'foster fair dealing, (and) to eliminate misunderstandings' (55 Ops.Cal.Atty.Gen., 276, 278) in transactions involving automotive repairs. It serves to prevent, among other things, at1 auto repair business fr0111 obtaining possession of a vehicle by leading the owner to believe. that the cost of repair will be in an amount agreeable to him only to return and find that the cost has increased su[)stantially. Under such a situation the owner has only two options, (1) to pay the increased price, or (2) to seek legal relief in obtaining possession of his car." (Civ.Code, § 3071; Parada v. Claims Court (1977) 70 CaI.App.3d766, 768-9.)

Cause for Discipline -- Five Complaints

7. Cause for discipline of respondent's ARD registration was established by reason of Factual Findings 5 through 17, in that during the repair transaction involving the 1998 Chrysler Concorde, respondent made untrue atld misleading statements, did not record the odometer, engaged in fraud, did not obtain customer authorization, and did not provide a written estimate of the diagnosis. (Bus. & Prof. Code, § 9884.7, subds. (a)(l), (2), (4), (6); Cal. Code Regs., tit. 16, § 3356, subel. (a)(2)(B).)

8. Causefor discipline ofrcspondent's ARD registration was established by reason of Factual Findings 18 through 21, in that during the repair trat1saction involving the 2009 Hyundai Accent, respondent failed to record the odometer reading. (Bus. & Prof. Code, § 9884.7, subd. (a)(2).)

9. Cause for discipline ofrcspondent's ARD registration was established by reason of Factual Findings 22 through 27, in that during therepair transaction involving the 1999 Buick Regal, respondent did not record the odometer, wilIflJlly depatied from trade standmds, failed to provide the Gustomer with a written estimate, at1d failed to list pmts and their cost on the invoice. (Bus. & Prof. Code, §9884.7, subel. (a)(2), (6), (7); Cal. Code Regs, tit. 16, § 3356, subd. (a)(2)(B).)

10. Cause for discipline ofrespondent's ARD registration was established by reason of I' actual Findings 28 through 32, in that during the repair transaction involving the 1999 Ford Rat1ger, respondent failed to record customer authorization on invoices at1d failed

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to indicate on the invoices whether pmis were new/used/rebuilt. (Bus. & Prof. Code, §§ 9884.7, subd. (a)(6), 9884.9, subd. (a); Cal. Code Regs, tit. 16, § 3356, subd. (a)(2)(B).)

11. Cause for discipline of respondent's ARD registration was established by reason of Factual Findings 33 through 39, in that during the repair trmlsaction involving the 1997 Ford F-150, respondent failed to include wmranty information on the invoices, failed to provide written estimates for initial inspections, failed to include all service and pm·ts on the invoices, failed to obtain authorization for service on all invoices, and failed to indicate on the invoices whether parts were new/used/rebuilt. (Bus. & Prof. Code, § § 9884.7, subd. (a)(6), 9884.8, 9884.9, subd. (a); Cal. Code Regs., tit. 16, § 3356, subd. (a)(2)(A) & (B).)

Analysis of Discipline

12. The BAR's Guidelines for Disciplinmy Penalties and Terms of Probation (Guidelines) include factors in aggravation alld mitigation to be considered in determining all appropriate penalty. (Cal. Code Regs" tit. 16, § 3395.4.) Factors in aggravation include priorwmnings, prior disciplinary actions, prior demonstrations ofincompetence,prior office conferences, ,md failure to comply with a BUTeau request for corrective action/retraining. Factors in mitigation include evidence respondent worked with the Bureau to resolve consumer complaints, vollmtary retraining, absence of losses to the consumer, changes in business practices, mld establishment of internal controls.

13. Rcspondent was first registered by the Bureau in June 2010. Despite his signature on the Inspection Repol1:, respondent denied hdng present at the Education Conference with a Bureau representative in October 2010. As set forth in the Factual Findings, respondent received five consumer complaints between September 2012 and December 2013. He met with Bureau prograt:l representatives to discuss each complaint. All of the complaints involved faulty repairs and invoicing deficiencies. He demonstrated a lack of effort in consulting industry repair manuals or contacting reputable sources, such as dealerships.

Respondent's behavior concerning the 1998 ChryslerCo!lcorde was most concerning as it constituted fraudulent dealing. Mr. Melton testified in a credible mmmer that he alld respondent had lied to the customer, charged' him $4,200 for a replacement engine, alld only replaced the gaskets. Respondent's denials lUlder oath were not credible. Relative to honest dealing, it is noted that in servicing the 1997 Ford F-150, respondent chmged A.M. $80 for gem oil, which he oQtai,ned for $27, alld did not provide tl1ecustomer with an invoice for the charge. As such, A.M. had no way of knowing the true cost of the item. Also notable was a general lack of quality control demonstrated by the deficient repairs to S.D. '8 1999 Buick Regal which continued to ovcrheat and shut off after repeated interventions at respondent's, shop. Deficient service was also demonstrated when gasoline poured onto the ground when S.G. was attempting to refuel her 1999 Ford Ranger on the way home from respondent's shop.

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Respondent's attitude at hearing did not reflect an appreciation of ~arm to the public caused by faulty maintenance, fraud, misrepresentation, failure to provide estimates and invoices, and providing incomplete/inaccurate invoices. The laws governing automotive repair businesses are designed to protect the public from unfair business practices and lmscrupulous and/or incompetent operators. (Parada v. Claims Court, supra.) Under all of the facts and circumstances, it would be contrary to the public interest to permit respondent to retain his ARD registration.

Costs

14. Business and Professions Code section 125.3 provides, in pertinent part, that the Bureau may request the administrative law judge to direct a licentiate fOlmd to have committed a violation Qr violations o(theJicensing act to pay a sum not to exceed the reasonable costs of the investigation and enforcement of the case. -Business and Professions Code section 125.3, subdivision (c.), stat.es:

(c) A certified copy of the actual costs, or a good faith estimate of costs where actual costs are not available, signed by the entity bringing the proceeding or its designated representative shall be prima facie evidence of reasonable costs of investigation and prosecution of the case. The costs shall inc] ude the amount of investigative and enforcement eosts up to the date of the hearing, including, but not lihlited to, charges imposed by the Attorney General.

15. As set forth in Factual Findings 40 through42,the cost of investigation, enforcement, and prosecution expended by the Bureau through March 25,2015, is $14,838.25. Zuckerman v. Board a/Chiropractic Examiners (2002) 29 CaJ.4th 32, identifies factors to be considered in determining the reasonableness of costs to be assessed to licensees who exercise their right to a hearing. The factors include whether the licensee has been successf~ul at hearing in getting charges dismissed or reduced; the licensee's subjective good faith belief in the merits of his or her position; whether the licensee has raised a colorable challenge to the proposed discipline; the financial ability of the licensee to pay; and whether the scope of the investigation was appropriate to the alleged misconduct.

In this case, all of the allegations were sustained. Based on a consideration ofthe Zuckerman. factors including respondent's financial situation, total costs of investigation, and the appropriateness of the scope of investigation for the misconduct alleged, an assessed amount of $1 0,000 is reasonable and appropriate.

ORDER

1. Automotive Repair Dealer Registration No. ARD 262370, issued to Best American Tire & Wheel, is revoked by reason of Legal Conclusions 7 through 13.

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2. Respondent is ordered to pay to the Bureau the costs of investigation and prosecution of this matter, in the amount of $10,000 pursuant to Legal Conclusion 14.

DATED: April 23 , 2015

~JI)Ic DIAN M. VORTERS Administrative Law Judge Office of Administrative Hearings

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