There has been an extensive amount of discussion regarding a Smog Citation and your Gold Shield Certificate.

The question is:

Do you fight the citation?

Yes. Absolutelty. An unqualified yes. There is no way on earth you should EVER fail to fight your smog citation. It could be the difference between keeping your Gold Shield and having it revoked.

We’ve seen a huge uptick in undercover runs being sent to Gold Shield Stations, especially with the new announcement of BAR 2012. We’ve even seen as many as 2-3 undercover runs to the same facility – even after the facility has successfully found the induced defect.

In short, Gold Shield Stations are being targeted.

Best we can tell, there is a top down policy to revoke as many Gold Shields as possible in an attempt to make the administration of the new 2012 policy seamless, without a proprietary interest such as a Gold Shield certificate to compete with.

You see, because the Gold Shield entitles the facilities to certain benefits provided by the state, such as the Consumer Assistance Program (CAP) it’s considered a property right, requiring due process of law. This means the Bureau has to hold a hearing in regards to the Gold Shield Certificate.

What the Bureau does is pretty ingenious.

Here’s how it works:

A Gold Shield gets a citation.

There’s an office conference.

The local field reps show video/pictures/eis reports telling you that you have no chance to win the citation appeal, just pay your fine, take your class, that’s it.

You ask about your Gold Shield. The Bureau reps say that is not at issue at this time – “Sacramento deals with the Gold Shield.”

So you pay the fine. You take the class. You don’t think anything of it.

30 days later after your time for appeal lapses, you get a letter from Sacramento – your Gold Shield Certificate is revoked. You can no longer appeal the citation that is the basis for the revocation of Gold Shield.

Those sneaky sons of bitches knew damn well you’re Gold Shield is at stake – but they of course fail to tell you otherwise.

In legal parlance, you’re screwed. The very reason for revoking your Gold Shield is not at issue – you’ve failed to appeal the citation – being issued a citation is grounds for revoking your Gold Shield Station Certificate. You’re only remedy is to appeal to the Bureau – the same Bureau who has already made the decision to revoke your Gold Shield Certificate.

Think about it.

Always fight your citations when it comes to Gold Shield.

http://www.ocregister.com/news/prosecutors-251708-insurance-shops.html

Sometimes I’m sick of seeing Automotive Repair facilities become the latest target for grandstanding.

You and I both know what’s going on here. The shops have been entrapped by the Bureau and the District Attorney, made to look like criminals when the repairs were necessary to ensure the structural integrity of the vehicles in question.

Here’s the latest example through the District Attorney’s office working in conjunction with the Bureau of Automotive Repair in an attempt to fraudulently pin criminal and administrative actions on body shops.

Here’s the situation:

Consumer X comes in with previous body damage, “gets in a accident” and then asks the shop to include both the new damage and the old unrelated damage.

The “consumer” is either a Bureau rep or a D.A. rep.

Here’s where it gets tricky. . .

entrapment
n. in criminal law, the act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead. The key to entrapment is whether the idea for the commission or encouragement of the criminal act originated with the police or government agents instead of with the “criminal.” Entrapment, if proved, is a defense to a criminal prosecution. The accused often claims entrapment in so-called “stings” in which undercover agents buy or sell narcotics, prostitutes’ services or arrange to purchase goods believed to be stolen. The factual question is: Would Johnny Begood have purchased the drugs if not pressed by the narc?

So what’s the catch? I guarantee 90% of the facilities didn’t even look at the previous damage until it was pointed out by the consumer. I guarantee that the adjusters didn’t even consider this part of the same accident and did not estimate it as such.

I also bet the Bureau will deny that the structural integrity of the vehicle was not damaged by the new accident, and that the need to fix the old damage based on the safe operation of the vehicle was “completely unnecessary.”

After all, we all know how brilliant the Bureau is. . .

I guarantee that most owners were in no way, shape, or form involved in the transaction one bit – but are still being held accountable.

I guarantee that in every instance, the “consumer” prodded the facility to add the damage, the textbook definition of entrapment – a viable defense to any criminal action as well as an administrative action.

I also guarantee that some criminal defense attorney who has no knowledge of the substantial relationship requirement of a criminal conviction to the professional license of the shop will tell his client to “plead out” to some “misdemeanor charge” which is a “slap on the wrist” because “going to trial is a gamble” which means “you’ll walk away with some probation.”

I can’t tell you how many times a criminal attorney will handle cases like this and essentially put them out of business, unknowingly because they don’t know how to account for the effect on their professional license with the Bureau.

The Bureau knows this – they will let the D.A. secure a  conviction, then turn around and use said conviction to revoke their BAR license(s). Good luck ever opening a shop with that on your record.

What he doesn’t tell you is that if you plead to a criminal conviction, you better believe your ARD license with the Bureau is GONE.

You also better believe that you’ll be held liable for the investigative costs of the Bureau, solely based on your criminal conviction, which in a case like this will be in the tens of thousands of dollars.

There are no double jeopardy protections – a criminal issues is completely separate from a administrative issue.

There’s a lot to consider in these cases – there’s a lot at stake.

The trouble is most of these individuals don’t know what the law is associated with these undercover runs. Most criminal attorneys are ill-equipped to handle the rigors of a very complicated area of law.

It’s a sad reality in today’s world that the Bureau has been able to railroad many of these shops for a long long time.

What do you do? Keep fighting. . . keep moving forward. . . and don’t quit.

As a mechanic, we fix things.

It’s in our nature, it’s in our blood – there’s a problem, we fix it. People bring us problems all day, every day, and it’s our job to fix it.

We take pride in fixing things – in fact there’s a little bit of ego involved in this phenomenon – nobody else could fix it, but I sure as hell can.

But there’s one area in running a business where you shouldn’t fix it yourself – the legal arena.

I can’t count how many times we’ve had to fix what was a small problem, easily dealt with, and easily handled, and by the time we were involved litigation had spiraled out of control.

Imagine a customer who brings in his ride with what he says is an electrical problem. He also tells you he “did a little research” and decided to replace the battery, the alternator, and starter because “his buddy told him that’s what the problem is,” except it still won’t charge.

So you dig in, find that a fusible link blew because a wire grounded out. Other than that, as far as you can tell, the kid replaced about $750 worth of unnecessary parts. In inspecting his work, he cross-threaded half the bolts, broke the belt tensioner trying to but the belt back on, causing some very expensive damage.

It’s the same with legal work.

Clients will make admissions to a court creating significant liabilities. They write demand letters failing to provide proper notice under the law. They fail to file the correct cause of action for a lawsuit, blowing through the statute of limitations, or even making admissions to either police officers or investigators who write them in reports that create criminal or civil actions against the shop, the shop owner, and their employees.

You can’t imagine how many times a shop has admitted liability under some obscure code without even knowing it.

I know the perception promulgated by media and previous experiences with attorney’s – minimum of $X,000 to start on your case.

There are all types of lawyers and all types of firms.

Developing a relationship with one shouldn’t be an exercise in emptying your savings account.

Every business needs legal advice.

There are issues that come up on a continual basis. Y

You may have questions about a particular issue, how to handle a disgruntled customer, issues with the Bureau of Automotive Repair, a renegotiation of a lease, etc.

Just remember the old adage, a lawyer who represents himself has a fool for a client – by the same token, a shop who represents himself. . . .

This was a comment in response to this blog.

The bar uses cars with worn pads and newly replaced rotors. No other problems. Midas always sells the bar (and the average unknowing consumer who works for a living tring to make ends meet)rotors and calipers in many cases, other rediculous stuff too. Midas practice is to rob the motorist of good parts and/or hard earned bux. Defend that? Really? Birds of a feather I guess. Think about what this all means in the big picture of life and contemplate your role. Are you doing the right thing?

I can say without equivocation that I absolutely love comments.

Why?

Because they stimulate discussion of important issues concerning the automotive repair industry and the role of the Bureau of Automotive Repair.

Let’s analyze this comment –

“The bar uses cars with worn pads and newly replaced rotors. No other problems.”

From the information available about this case, which is clearly deficient since I have not seen the discovery, nor have I seen the invoices from this case, but using the information available, and drawing from my experience with the Bureau and similarly prosecuted cases, I can make a few conclusions.

The standard Bureau fare is to take new pads, grind them to almost bare metal, slap on newer rotors, and sufficiently camouflage each part to appear as if it were severely neglected and rusted with leaking caliper seals. I have pictures if you really want them.

They engage in this behavior by painting rotors to appear as rusted, an indication of neglect, grafting dirt and other contaminants on calipers, and rubbing seals with grease to appear as if they are leaking, a dangerous proposition for equipment as sacrosanct as brakes.

Now then, as a technician, mechanic, grease monkey, or any other nomenclatorial device, while performing a teardown or inspection, attempting to discern the needs of this particular vehicle, he tries and gathers as much information as possible to determine the vehicle’s needs.

An easier way to analogize would be to consider the mechanic like a doctor. The good doctor is taking readings, performing visual inspections of ears, throats using tools such as a stethoscope to hear your heart, checking your blood for contaminants or deficiencies, asking a patient questions such as are you experience shortness or breath, headaches, insomnia, etc.

A doctor does this to gather information about the patient, attempting to perform the correct diagnosis, and determine the appropriate treatment.

By the same token, a mechanic gathers information. He views the parts in question, asks the consumer for information such as when was the last time your brakes were services, checks fluids, test drives the vehicles, etc.

Now then, if a rotor looks worn, rusted, used, and the pads are down to metal, with grease appearing to come out of the piston seal on the caliper – as a technician you’re going suggest a few things.

Here’s the thought process of a mechanic:

1. You need new pads; the old ones are damn near metal.
2. You should turn the rotors. If turning them can’t save them, you should replace them. I don’t know if there’s enough to turn. I put it on and measure it after each cut. Sometimes if there’s enough to turn – it will probably save you money, but we run the risk of still having to replace them after the turning if they are below the minimum allowable thickness. It’s your call. Turn or Replace. Here’s the cost, potential cost with each.
3. Why should you turn them? Rust permeates through the metal; it eats through like cancer, weakening the metal. Do you want to throw your kids in the back seat of a vehicle with rusted out weak rotors? Didn’t think so. Could we maybe turn them and get through the rusted parts? This is why I recommend a turning before replacement – again I’m trying to save you money.
4. As far as discerning the difference between painted rust and regular rust, I’m not going to check the composition of the rust dust, if it looks like rust, I’m willing to give it the benefit of the doubt that its rust. If it walks like a duck and it quacks like a duck. . . . after all, I left my chemistry set to test the PH of the rust to ensure it’s not painted on the rotor for a sting operation. Shame on me for forgetting my lab coat.
5. As far as why would you recommend turning of brand new rotors the BAR sent in – you have no idea they are new. They are painted to look old. The pads are down to metal, the customer states that she hasn’t serviced her brakes for a year. I’m trying to imagine a situation where a patient heads to a doctor and lies about her symptoms, fakes a cough and temperature with hot water, and then complains of receiving the wrong diagnosis.
6. What’s that? Measure them? Oh well that’s interesting, because it’s a well known fact all 20 manufacturers of rotors have the same minimum thickness during the manufacturer process, and hell, the rotors are never worn down while driving. Furthermore, you’d be surprised how many new rotors are warped right out of the box. I would recommend turning of every single rotor that comes through my shop before I put it on a vehicle.
7. What’s that? There’s enough thickness on those rotors to turn them? Say’s who? Oh, I didn’t realize that with the naked eye you can discern the warping of those, knowing I don’t have to take out .090 because they’re warped – Because of the infinite wisdom of the Automotive Repair Act, I have to get your authorization to turn them to see if they can be saved. So, I have to turn them, and if I can’t save them, you still have to pay me for turning them. So it’s your call, try and turn or replace. It’s a risk, it may work, it may not, I don’t know.
8. What’s that? You’re pissed that I tried to save them by turning them? Look, it’s cheaper to try and turn them – I told you this. I tried. I couldn’t save them. I would have had to cut them below the minimum thickness. I can’t put those back on the car, at this point, they are unsafe. You have to buy new rotors.
9. I can’t put the old ones back on, they are too brittle at the current thickness, they are unsafe, and they have to be replaced. I am not trying to hold you hostage here. I’d be happy to call you a tow truck to take it to another shop who will either tell you the same thing or lie to you, put the old ones back on in an attempt to gain you as a customer, and jeopardize your safety.

10. Great, now you’re calling me a thief, a fraudster, a huckster who tried to run up your bill by performing an “unnecessary repair” by trying to save you money by turning your rotors instead of replacing them. You’re calling your attorney – ok, I’ll call mine. I’ll see you in small claims court where a judge who thinks we’re all crooks rules against me. After all, it will be my seventh time there this year.

11. There are some rotors that cannot be turned. Some rotors have to be replaced. I’m sorry – please talk to the manufacturer to lodge your complaint. I don’t make em’, I just fix em’.

12. See that piston that looks older than dirt with grease near the piston seal? That’s dangerous – why? Grease doesn’t phantomly appear around the piston seal. If the piston seal is leaking, as it appears, all the grease/lubricant is open to the elements, i.e., brake dust, dirt, salt, and all the other wonderful things floating around, in addition to losing the lubrication that keeps the piston from actuating. Grease leaks out, dirt gets in, causing premature failure of the caliper. The caliper is what squeezes the brake pad to the metal – do you want that failing? Didn’t think so – I recommend replacement. I’m thinking of your kids – no really I am – you should be too.

To sum up:

You need new pads. I suggest the ceramics. Yes there are cheaper ones, but ½ of them squeak. I don’t like putting cheap pads on then hearing you yell at me for the squeak 2 weeks later. I can’t fix the cheap parts you chose – I assure you I installed them correctly.

You need to either turn to the rotors for a fresh mating service for the pads or replace them. The abrasive technology of brake pads requires a fresh metal surface for optimum stopping power. The new pad leaves a thin layer of abrasive material on the bare metal rotor that matches the composition of the new pad, creating better grip. From organics, semi metallics, to ceramics, your old pads could be anything. We use a new surface by turning your rotors to ensure stopping prowess.

The seal in your caliper appears to be blown. You need to fix that. I can rebuild the caliper for x. I can buy a new caliper for y. It’s your call. There is a chance, since you’ve left these unserviced for a year, that it might not be rebuild able once I get it apart. If your piston was deprived of grease because of the leak, there’s a chance it was metal to metal. If so, the cylinder might be gouged out. The piston might be worn thin. Remember the rotors? Same deal. If I can fix them, I could save them, it would be cheaper – you still might have to replace it anyway.

Now what do you think the BAR will tell a court of law? That you know, he’s right, he did it by the book?

Absolutely not.

The BAR rep will get on the stand and lie through this damn teeth, stating that you recommended unnecessary repairs, made fraudulent and misleading statements to induce a consumer to authorize repairs, and charged for unnecessary services. “All the vehicle needed was new pads” is what they will say, painting the shop as a bunch of frauds trying to run up the bill.

The BAR is full of it and they know it.

Remember, a mechanic is looking at the symptoms, much like a doctor. The symptoms suggest pads (the are worn), rotors (which appear to be rusted), and either a caliper rebuild or a new one (because of the appearance of grease near the seal).

“Midas always sells the bar (and the average unknowing consumer who works for a living tring to make ends meet)rotors and calipers in many cases, other rediculous stuff too.”

Midas, a mechanic, or your neighborhood shop doesn’t sell anything. They recommend services. You either want them or you don’t. No one puts a gun to your head. If you want to ride around with a leaking caliper, that’s your business. The BAR tells each undercover operator the same thing – authorize the services. A recommendation is made – if the customer authorizes it, then the shop performs the work.

I’m not discounting the ability of customer to pay for automotive repairs. Budgeting for unexpected repairs is beyond the scope of this discussion. Money gets tight on everyone at some point. We all have ends to meet.

As far as other “rediculous (sic) stuff,” I would need more concrete examples from invoices and such. Chances are if they are additional services outside the requested services – they are recommendations. Again, no one holds a gun to your head.

I could go on a very long diatribe as to why replacing that torn CV boot could save your transmission down the road – meaning if the CV axle is open to the elements sans boot and grease, fails, tears out the wheel bearing because the constant velocity joint can’t move properly, which slams against the transmission repeatedly, blowing out the output bearing, killing your transmission and mounts, but you wouldn’t believe me when I say in car repair, like many things, an ounce of prevention is always better than a pound of cure – your pocketbook will thank you.

Think of it like a doctor doing a checkup. He takes your blood pressure, says its high, he recommends exercise and taking of pill x, etc. . . You could do one of two things, do what the doctor recommends, and prevent further issues down the road, or you could ignore it, needing a full on triple bypass because you didn’t take care of the little problem and it turned into huge problem.

I promise you, auto repair is no different – an auto shop is not trying to run your bill up or sell you additional unneeded services, they are trying to prevent you from needing a triple bypass.

“Midas practice is to rob the motorist of good parts and/or hard earned bux.”

I feel like we’ve addressed this. You feel consumers are robbed or are misled. Try to understand what a mechanic goes through. Not all shops are crooks.

“Defend that? Really? Birds of a feather I guess.”

Absolutely. I’m glad we live in a country where someone is innocent until proven guilty. I absolutely love fighting for automotive repair dealers, smog stations, auto body and repair facilities, technicians, mechanics, and anyone else in the automotive industry. Why? Because they have an undeserved bad reputation. Sure there are fraudsters, just as in any profession. There are bad attorneys, there are bad doctors, and there are bad teachers. We don’t throw out the whole lot for the actions of a few bad apples.

I tell all clients the biggest hurdle in litigation is a public relations issue. Mechanics and shops are looked at as the lowest of the low. This misconception is not easily dealt with – case in point, your comment.

“Think about what this all means in the big picture of life and contemplate your role.”

It would behoove any individual to fail to discern his role in society, failing to take into account how his actions are affecting others, and how he chooses to spend his or her short time on this earth. I have considered this on many occasions and have felt I am in a unique position to help those who have no help. Shops and techs have been absolutely slaughtered in the courts.

Why?

Because you either have an attorney who has no idea what goes on inside a repair shop or you have a mechanic who has no idea what goes on inside of a courtroom – someone has to be able to bridge the gap between the two. No one has been able to – that’s what I’m here for.

“Are you doing the right thing?”

Doing the right thing can have a lot of different connotations – it is quite the loaded question. It would behoove us to try and discern the proper moral standpoint in regards to being a defense attorney, although I’m sure there is significant literature on this subject

I see my role to help educate the legal system and the public about the trials and tribulations faced by the automotive repair industry – and that not everything is as it seems. Fixing cars is a very difficult job. They are some of the most heavily regulated businesses in the country, especially in California. The Bureau has a 180 million dollar a year budget to do nothing but regulate the automotive repair industry. Some of their policies and procedures are inconsistent with current legislation and other legal memorandum. When a shop has a question, he is told 13 different things by 4 BAR program representatives, never receiving a straight answer.

Most mechanics are hard working, honest, and ethical people who are trying their best to keep you on the road.

I hope you remember that next time you slam your mechanic for overcharging you for his “unneeded services” as you derive the benefits of his blood, sweat, and tears when he’s trying to make your life easier.

22 Midas Shops finally settle lawsuit with the Bureau of Automotive Repair

http://ag.ca.gov/newsalerts/release.php?id=1850

I discussed this case earlier in this post and was very interested in the result.

A result has been reached.

There’s one reaction and one reaction only. These attorney’s who represented Glad were gutless.

Absolutely gutless.

Having seen a lot of the reports following the case, where the Bureau sent in painted up rotors and dirtied up calipers with grease squeezing out of seals (not actually from the caliper, but from the Bureau’s fine crasftmanship) – and having had cases with the same type of undercover cars, it’s nothing I haven’t seen before.

The right move here was to fight – and fight like hell.

There’s nothing misleading about bringing in an uncomplicated pad slapping break job on the cheap – it is cheap.

Usually two 8 or 10mm bolts, slide the calipers off, send the piston back down, new pads, and you’re done.

The problem is, most customers don’t get regular brake checks – they grind those bad boys until the squeal indicator is howling – then try and fit a brake inspection in 3 months later when you’ve chewed through the rotors.

A customer gets a coupon in the Val-Pak and thinks to themselves:

“I should use this coupon for that brake noise I hear!”

So they bring it in and wonder why they need new rotors, the piston gets overextended and now needs to be rebuilt since the seal is busting out, and you’re wheel sounds like a chainsaw while turning because you busted out your wheel bearings. Also, those ball joints are really happy about the chatter for two months.

So when the Bureau sends in a car with pads shaved to metal, grooves put in rotors, and grease squeezing out of pistons. Of course the shop is going to recommend more that a pad slap job – doing otherwise would put the health and safety of your customers at risk.

So how do you fight?

You put an expert on the stand. You have him review the car, the photographs, the measurements of the rotors, and acceptable trade standards of practice. Take out the ASE books – educate the judge about how the process works for recommending services when you see the things the bureau sets up, you cross examine the hell out of the Bureau’s “experts” when they claim they “wouldn’t have recommended such services.”

If I’ve heard the Bureau’s experts say more than once, I’ve heard it twice – selective amnesia as to proper automotive principles is amazing until you see service manuals backing up the shop

It’s not a bait and switch – it’s quality automotive service.

So you fight – you fight like hell – you don’t support the notion that shops are crooks. You vindicate yourself. You spend years building your shop, years building a customer base, years making a name for yourself.

You don’t throw it all away by pleading guilty to everything, turning over 1.8 million dollars, and getting kicked out of the profession you love.

What a bunch of gutless attorney’s scared of a fight.

- William Ferreira

The Bureau of Automotive Repair has always been interested in Body Shops. The BAR feels, rightly or wrongly so depending on who you talk to, that Body Shops are rife with instances of fraud and deceit, while clamoring over the “unsafe practices” of most body shops. There’s an emerging trend that is of great concern to non-insurance shops.

We’ve already discussed the BAR’s distaste for body shops but it bears repeating.

Let’s be clear, I’m not talking about shops that do insurance work. I’m talking about shops that aren’t feeder shops from major companies. I’m talking about the shops that don’t necessarily rely on work from insurance companies by agreeing to take the work at their crap rates.

We do what we have to do as business owners to stay afloat – however a word to the wise to non-insurance feeder shops.

Insurance Companies want to shut you down.

I’m going to say this again just to make sure its clear.

Insurance Companies want to shut you down.

Much like Customer Compliants leading to BAR undercover runs, insurance complaints lead to undercover runs as well.

The reason? Ever since the California Legislature required mandatory disclosure of the right of a consumer to choose their own shop, the insurance companies have been reeling.

What this did was cause a mass exodous from insurance feeder shops, with lower labor rates to quality shops who refused to settle for the reduced labor rate, knowing the value of their work.

The insurance company has been engaging in a, shall we say, interesting practice to “assist” the Bureau of Automotive Repair – performing “random inspections” of work sent to non-insurance shops for “quality control purposes.”

It’s akin to the “free inspections” performed by the BAR. With $168 Million Dollar Budget of the BAR they can surely afford it.

You know what happens next – because the insurance company found a bracket that wasn’t replaced. They won’t mention that it’s not made anymore so had to spend an hour fixing the old one and a ha!

All of a sudden you’re a fraud.

Nevermind the extra hour you spent fixing the bracket which is NOT listed on the invoice, which you weren’t paid for, but never the less, your transgressions are forwarded to the BAR as dirty shop.

What happens next? The BAR is convinced you’re a fraudulent shop, sends a few undercover runs, doesn’t agree with your diagnosis on what should be fixed, and shuts you down.

Now there’s one less non-insurance shop for the insurance companies to worry about.

How do you handle this issue if you are a body shop?

Before you send off any insurance work if you’re being paid at your normal rates, check the invoice. Is there a $2 bracket that wasn’t replaced? A .25 of labor hours of blending that didn’t need to happen because you paint matched it 3 different times to get it just right?

You’d be surprised.

The BAR will gladly shut down a shop over a $2 part.

Double check your insurance invoices before the cars are finished – they’re just itching to find a reason to report your shop to the Bureau of Automotive Repair.

Make sure all parts listed were in fact installed. Make sure all work performed was in fact performed. Double check your invoices against part inventory order lists. Add the additional labor it took for things that weren’t listed.

Don’t give the insurance companies a reason to report you to the BAR. Let’s just say they have a vested interest in shutting you down.

- William Ferreira

Criminal Complaints filed by the local District Attorney

We get a significant number of questions regarding the criminal aspect of surveillance and other undercover operations promulgated either by the Bureau of Automotive Repair or the local District Attorney’s office.

You see, the Bureau is pretty predictable. When they perform an investigation, gather evidence of “unnecessary repairs” or “violations of the Health and Safety Code,” before they turn it over to the Attorney General’s office they for license prosecution, they send it to the local DA’s office.

Why? Because they know most shops don’t have an option in hiring a Criminal Defense Attorney who understands the complicated principles of automotive repair and it’s application to the Business and Professions Code, Health and Safety Code, and the California Code of Regulations. Most shops simply plead guilty to the allegations after a Criminal Defense Attorney who isn’t familiar with automotive repair suggests to “take the deal”.

Now that the Bureau of Automotive Repair has a Criminal Conviction, the License Revocation proceeding is probably a slam dunk, depending on the charges the shop pled to, meaning the DA just did all the leg work for the Bureau of Automotive Repair.

What you should do

If you come up against this, here’s what you do – when served with a complaint from the local District Attorney’s office, developed and investigated by the Bureau of Automotive Repair, you call an Attorney with automotive defense law experience. One who knows how to defend and dissect the allegations, see what charges have been trumped up, and who can protect you from criminal allegations and your professional license.

-William Ferreira

http://sports.espn.go.com/ncf/news/story?id=4527376

This story, although directly unrelated to the automotive industry, brings to mind several legal tenets that are applicable to any situation regarding dealing with the State in any way, shape, or form. Whether we’re talking about mechanic’s liens, professional licenses, BAR 97 machines seized by the Bureau – any action taken by the government, the state, a state agency, a state employee, or someone who represents the states interest is subject to immense requirements of due process.

Allow me to elaborate.

The Due Process Clause of the Fifth Amendment guarantees that no person shall . . . be deprived of life, liberty, or property, without due process of law. Precedent has established the general rule that individuals must receive notice and an opportunity to be heard before the Government deprives them of property. 510 U.S. 43 UNITED STATES, PETITIONER v. JAMES DANIEL GOOD REAL PROPERTY ET AL.

The right to prior notice and a hearing is central to the Constitution’s command of due process. The Supreme Court has held:

“The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment — to minimize substantively unfair or mistaken deprivations of property. 510 U.S. 43 UNITED STATES, PETITIONER v. JAMES DANIEL GOOD REAL PROPERTY ET AL.”

At the core of the due process clause is the right to notice and a hearing “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 85 S. Ct. 1187 (1965). “Ordinarily, due process of law requires an opportunity for ‘some kind of hearing’ prior to the deprivation of a significant property interest.” 882 F.2d 1398; 1989 U.S. App.

The Court has held the requirement of notice and an opportunity to be heard raises no impenetrable barrier to the taking of a person’s possessions. But the fair process of decision-making that it guarantees works, by itself, to protect against arbitrary deprivation of property. For when a person has an opportunity to speak up in his own defense, and when the State must listen to what he has to say, substantively unfair and simply mistaken deprivations of property interests can be prevented. Connecticut v. Doehr, 501 U.S. 1 (1991).

Only in extraordinary circumstances involving “‘the necessity of quick action by the State or the impracticality of providing any [meaningful] predeprivation process’” may the government dispense with the requirement of a hearing prior to the deprivation. Ibid.

So, how may you ask, does this apply to the current situation? What’s interesting about the article is that there was a conversation held between Blount, his family, AND A LAWYER.

Chip Kelly can grandstand all he wants. He can say the presence of an Attorney had no bearing on his decision of whether or not to reinstate Blount, but the legal eye knows better.

You see, Oregon University is a state university, meaning it is run by the state, for the state. Because it’s a state run facility, it necessarily follows that the university is an extension of the government, and hence part of the state, such as the police, regulatory agencies, etc. Any time the states hands are involved in an entity, from public parks, schools, police and sheriff’s departments, they are subject to the requirements of due process – requiring “notice and opportunity to be heard” in “some form of hearing” before the deprivation of rights.

Barring Blount from playing football for the University of Oregon isn’t illegal – I’m not suggesting the court has the power to tell Chip Kelly who to start at running back, however, when someone has a right, and the state (here the U of O) takes away that right, for whatever reason, they must succumb to the substantive and procedural due process protections afforded under the law.

The chance or ability to try out or otherwise play football as a student of the University of Oregon is a property right – plain and simple. It’s a right afforded to all students of the U, by virtue of enrollment into the U, subject to NCAA guidelines and such, but he has the right to make the team, and if he makes the team, play for the team. If the University takes that right away, it’s a deprivation of a property right, and thus, subject to due process protections.

Now then, this hearing doesn’t necessarily have to be formal hearing in court, however, the more important the property rights, the more due process protections are required.

Here, if I’m the attorney, I’m making the argument that this deprivation was huge. We’re talking taking away the ability to play D-I football for a top 50 program. We’re talking active scouting by professional teams, leading to successful careers in the NFL with millions of dollars at stake. At a minimum, the behind closed doors decision between Kelly and Bellotti, the Athletic Director in this case, smacks of lack of notice and opportunity to be heard by Blount in a manner consistent with the due process requirements enumerated by the Constitution and aforementioned case law.

Some of the protections involved in due process requirements in a case like this generally include the ability to present a defense, separate the prosecutorial function from the investigative function, the right to be heard in front of an impartial tribunal, present witnesses, and generally defend the accusation that what transpired requires the action(s) suggested by Kelly, namely a year long suspension.

I’d have to cross check this against the Federal APA and Oregon equivalent, but I’m willing to bet the farm such procedural and substantive protections weren’t followed.

I’m not suggesting it’s not the right action. I’m not suggesting he should or should not be allowed to continue to play. That’s not my call, nor should it be. I’m suggesting that in that meeting, if I’m the attorney, I make it very clear that the U of O is a state actor, falling under the realm of due process protections, which, as it appears from what transpired, they did not allow at minimum, notice and opportunity to be heard in defending against the accusations before removing him from playing in games for the rest of the season.

I would further enumerate that such administrative action by the state falls under various civil right tenants of both the Federal and State Constitutions, having a profound effect, albeit indirectly, into pursuing a particular trade or profession, a right enumerated in the constitution, (see, life, liberty, and the pursuit of happiness extrapolated under volumes of case law by the Supreme Court regarding the practice of a particular profession or trade a tenet of these principles) and could potential result in the loss of millions of dollars, easily provable with previous years draft picks, scout reports as to where he would have been drafted had the State not violated his rights, and subsequent earnings to follow.

I don’t threaten the University, I suggest that if this is not reconsidered, or at the least, provide an opportunity for him to return to the team in due time, we might be forced to file a very public, very ugly, very time consuming, very distracting, and extremely detrimental to everyone, affecting the University, the State of Oregon, Kelly’s career aspirations, Bellotti’s tenure as AD, University endowments and gifts, and no doubt recruiting. I merely suggest it might be beneficial for the University to reconsider their actions in light of what transpired.

I’m sure the Attorney in question considered all these angles. I’m sure he presented an “effective” defense to the blanket denial to play for the rest of the year. Luckily, Kelly has “the impassioned plea of his mother” to fall back on, but sure as rain in Oregon, the lawyer was the difference maker. I’m sure Kelly and Bellotti went and talked to their General Counsel, who looked at the facts and agreed the suit would have merit – so reinstate him somehow, because this will be a mess for the University – we screwed up.

Enter Lawyer – enter result desired by the client, here Blount.

So, how does this apply to automotive defense law?

It’s simple – anytime the state takes action against you – and I’m talking citations, submitting customer complaints to the Bureau, the DMV, license issues, seizing equipment, prosecution by the district attorney, the attorney general, or anyone in between, they are subject to due process protections.

Here, I guarantee you that the presence of an Attorney was a difference maker. Think of the immense amount of pressure he could have caused by suggesting the lawsuit that could follow if they did not allow Blount to return.

Your right to practice your chosen profession is no different than Blount’s. It’s entitled to the same protections.

Likewise, think of the lawsuit that would follow if the BAR, the DMV, the DA, the AG, or anyone else involved in regulating the automotive industry weren’t reminded of the need to succumb to these due process requirements before a decision is made in haste. Many times, when going up against shops, due process requirements and protections are thrown out the window. Why? Because they know there’s not a lawyer who knows how to help shops and technicians.

Now you know better. Before having a conversation with the BAR, the DMV, AG or DA, you call us – we’ll straighten them out.

-William Ferreira

http://articles.latimes.com/2001/jun/19/news/mn-12160

I saw this article, albeit an older article, however the same principles hold firm regarding body shops and the Bureau of Automotive Repair. We have seen an increase in Bureau undercover runs to body shops after the recent inspection program provided by the Bureau, scrutinizing every repair performed by the shop.

You know as well as I do that Bureau expects the world for body shop repairs. Just because the shop repairs vehicles with acceptable trade standards and practices, doesn’t mean the Bureau agrees with your craftsmanship.

If your seams aren’t immaculate, if you’re filler is more than 1/16^th , if the color is a smidgen off, look for the Bureau to come down on you hard – and expect subsequent undercover runs to determine if you’re “doing it by the book.”

Running a Body Shop can be a difficult task.

With pressure from insurance companies to keep labor hours low, squeezing labor amounts at historically low levels, threatening to feed their work to other shops, and using their templates for how long it takes to complete certain jobs (despite the mangled mess you’re going through), it’s a nightmare.

Not to mention the hassle to authorize subsequent repairs after disassembly of the car, requiring the adjuster to “visit the shop to confirm the need” two weeks later – meanwhile the car is sitting idle taking up space while the customer yells at you for taking so long.

It’s funny how consumers and media alike promulgate the misconception that all shops are dirty. Like any profession, there are good shops, and bad shops – it’s would be nice if the media noticed this once and a while.

When they go to shut down Body Shops, some the charges are bogus, citing codes and statutes of trade standards and practices are drafted nice and neat in a complaint filed through the Attorney General’s Office, however, like Automotive Repair Dealers, some of the charges are unfounded – don’t let the Bureau shut you down without a fight.

-William Ferreira

There’s a significant issue that affects just about every shop.

Bureau of Automotive Repair Customer Complaints.

I don’t care how proficient you are in explaining the repair process to your customers, how apologetic in fixing comebacks, how well you explain your check engine light has nothing to do with the brake job your shop just did – you will get complaints.

You are going to have BAR Customer Complaints.

The BAR has made it even easier to make complaints. You can call, you can do them online – you could probably send a homing pigeon – and you will get a call from your local bar rep who “needs to investigate.”

We all know the drill. The BAR rep either comes by or calls, says he has a complaint from Mrs. Smith and he needs to investigate. He’ll be back tomorrow and he wants you to have the invoice and all techs present to discuss the complaint.

You understand his authority so you do it, you get the invoice, you tell your tech’s he’ll be by tomorrow, so be ready. You explain what you did, explain what you told the customer, explained what you can do for her to make things easier, and what does the Bureau of Automotive Repair tell you to do?

After you’ve explained how you did everything by the book? After you showed how your invoice has the correct signatures, authorization for subsequent repairs following telephoned conversations aptly marked, and have each category of parts, labor, hazardous waste fee, tire disposal fee, and fluids in their own section, with tax on parts only?

“Give them their money back.”

Are you kidding me?

What happens if you don’t? You’ll hear any number of these canned responses:

“Your invoice is in violation of Business and Professions code section 9887.xx, you need to return their money.”

“Your recommendation to fix X was in violation of acceptable trade standards and practices under x, y, z, and therefore you need to return their money.”

“Your statement that they should replace this was fraudulent and misleading, you need to return their money.”

“After reviewing the vehicle in question, you did not do X in violation of the Health and Safety Code section xxx.x, you need to return their money.”

We know what comes next. . . .

What happens if you don’t return the money? You feel like you did it by the book, you did things right. What happens if you refuse.

The Bureau will get in your face. They will pull out all the stops. They will threaten your license, they will threaten to close you down, they will threaten your livlihood. They will threaten to take all your invoices, find violations, and write citations for various instances.

Hell, they’re so proud of it, they post their “victories” on their site here: http://www.bar.ca.gov/80_BARResources/02_SmogCheck/Program_Overview.html to the tune of $6.3 million.

They’re effective. Very Effective. Why? Because they sound legitimate. They sound like they know what they’re talking about – who are you to question the BAR?

Well I’ll tell you straight off. The Bureau has no authority whatsoever to force you to return any money to any consumer.

Any and all disputes between a shop and a consumer are civil matters, not licensing matters. Civil disputes are decided by courts. Licensing matters, believe it or not, are also decided by courts – Administrative Law Judges to be exact.

It’s your money. You earned it. You put in the work, you put in the time, you purchased the parts, and paid the overhead for your shop. It’s yours.

The BAR mediates disputes.

They do not decide them.

The Bureau is a division of the department of consumer affairs. It’s purpose is the protection of the public. As I’ve mentioned in several other blogs, they do not have your best interests at heart.

Their Authority is Extremely Limited

They have absolutely no authority to demand payment. This is a civil dispute between you and the customer. The BAR is a licensing agency, not a civil court that decides disputes between consumers and shops.

Ultimately, the decision is up to you. I would never recommend returning money to a consumer unless there was absolutely no question there was shop or tech error. Furthermore, if there was shop error, bring it back, we will fix it, or at least take a look at it to determine if in fact there was shop error.

Otherwise, I would tell both customers and the BAR alike, they can keep their hands out of my pocket.

I would tell them a simple yet effective manner in closing both the complaint and any BAR presence at my shop:

“If you have any more questions, you may contact my Attorney, William Ferreira at Automotive Defense Specialists.”

“He’ll be happy to listen to your threats against my license, how you’ll ‘shut my shop down’ or how ‘my invoice doesn’t comply with provision X of the HSC, B&P code, CCR, etc.’”

“He simply loves conversations with uneducated BAR reps who think they know the law.”

In fact I do.

-William Ferreira

I had the great fortune the other day to read a response from the Attorney General’s office. It was a response to a Motion called a “Motion to Compel.”

You see, when defending life, liberty, or property from the government, which includes the right to life (say in death penalty cases) or liberty (such as if the government wants to throw you in jail for attempted murder) or property (such as taking a piece of property for government use), you’re entitled to what’s called due process under the law. Read more »

Fighting Smog Citations

The Bureau of Automotive Repair is pretty predictable.

If you’d like to know the sure fire way to end up on their radar, it’s pretty easy to figure out the system. Read more »

http://ag.ca.gov/newsalerts/release.php?id=1762

The AG is going after 22 Midas shops for recommending to resurface rotors after the Bureau spent thousands doctoring rotors to look used and worn and grinding down brake pads. Read more »

Welcome Bureau of Automotive Repair,

I received this comment today from a concerned citizen in response to this blog…

“Probably a bad example, the article blog had a lot of angry people getting ripped off by the shop. Not a lot of sympathy. As for illegal smogs, pretty hard to defend that if the facts are there and presented properly to the court. I have never had a bad experience with BAR, but then I’m not doing things illegal!” Read more »

So an interesting thing happened the other day… not that I’m surprised, but I guess I should’ve seen it coming.

About a dozen different unique IDs from the Justice Department out of Sacramento, California, spent anywhere from 2-20 minutes on my website poking around. Read more »

There’s a right way to handle the Bureau of Automotive Repair, and there’s a wrong way.

Consider this the wrong way: Read more »

I was watching “The Wire” the other day – it was one of the later seasons where they strap a kid to the copy machine and convince him it’s a lie detector test.  You can see the clip below: Read more »

Whenever one of my clients tells me we’re being sued in small claims court, I tell them this is great news. Read more »

There was a time where I thought small claims court was the greatest avenue for enforcing your legal rights.

This is no longer the case. Read more »

I was talking with Bryan the other day about some of the legal issues facing shops and defective part failure came up. You see, the idea of a warranty for a part might seem like a generous thing for the manufacturer to guarantee, however you’d be surprised that its required – by law. Read more »