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.

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.

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. . . .

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.

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

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

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

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

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

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

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.

What this requires is that the government has to turn over what’s called all discoverable evidence (evidence that may or may not be beneficial to you). This means you are entitled to inspect any evidence collected at the scene of the crime or that may be used against you in a court of law.

Does the Bureau have to let you inspect the Car?

So, because a Bureau of Automotive Repair License Defense falls under both liberty and property (liberty to practice your chosen profession and property because a professional license is a property right under the law) the government must turn over all available evidence for inspection.

This includes the vehicle they sent in for the undercover run. It’s needed for inspection for a proper defense. I need to see how it was set up, I need to check the timing, PCV system, missing air pump, or whatever they claim the technician missed to determine if he in fact did do so. Just because the Bureau says so, doesn’t make it so.

It’s akin to the police saying, “The blood matched the defendant, trust me, it did – no, no, I’m not giving you the sample we used in our crime lab, just trust us.”

If you buy that, I have a bridge to sell you. It’s substantive and procedural due process; you have to give access to all discoverable evidence.

Part of the Bureau’s response was:

“Because of economic necessity, the BAR has a finite fleet of vehicles . . . [requiring the BAR to produce the vehicles for inspection] would effectively shut down the program. . . “

I couldn’t help but laugh at this statement. The Bureau of Automotive Repair crying poverty. That’s a new one.

I’ll share a little secret with you:

http://www.ebudget.ca.gov/StateAgencyBudgets/1000/1111/spr.html

Scroll down and take look at Code 31 – the bureau’s line. Now look at the rest of the Bureaus – Dental, Cemetery, Telephone Medical Advice Bureau, etc. . . now look back at the BAR.

Notice a difference?

Oh, those numbers are in the thousands – so add “,000.00” to those numbers.

So the Bureau of Automotive Repair’s budget for this year is:

$166,249,000.00.

That’s $166 Million Dollars for anyone keeping score at home.

And they’re crying poverty for having to hold a vehicle for a few months for defense inspection.

I love it.

I’m sure that poverty line will do well in front of a judge;

“Your honor, we only have $166 million dollars this year, we can’t be expected to park a car for 6 months.”

I can’t wait for this conversation.

-William Ferreira

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.

If you’re a Smog station, the BAR sends in undercover vehicles for Smogs, and they will then issue a citation. After 3 citations, they will go after your license. For some of their antics, take a look at this post.

About Smog Citations

You should fight every single Smog Citation.

Every single one.

Why? Because it’s your license. I don’t say this lightly, but 3 of these and you can expect a 30 page indictment from your local Attorney General’s office requesting your license to be pulled.

Accompanying the pulling of your Smog License will be the pulling of any ARD license, Smog Station License, and Brake & Lamp Certification License.

I wish I could say that every undercover operation performed by the Bureau was legitimate. I wish I could say every single citation I’ve seen even made sense – but think about it. The Bureau shows up, saying you did this wrong – sign here or there will be trouble.

Who’s to think anything else could be different? I discussed some of the tactics here.

The truth is the Bureau is wrong. More often than you think. My favorite was a citation for not checking functional timing on an OBD II car with ECU controlled timing – imagine getting that citation.

Bottom Line – fight the citations, get the evidence, demand to see photos, videos, reports, and records to see how they set the vehicle up for the sting. It’s your license – every strike is on the path to losing your livelihood.

Don’t let the Bureau of Automotive Repair take that away from you.

How do you fight Smog Citations?

Because each Smog Citation is a mark on your professional license, you’re entitled to due process protections before any negative mark goes on your record. The best way to ensure the citation is legitimate is to make a request for discovery.

The Bureau of Automotive Repair will do their best to have you sign off on these rights. Why? Because they know as well as I do that when you start asking questions, all of a sudden their ironclad case seems to fall apart.

With something as important as your Smog License and Smog Station License, you can’t afford to take chances.

-William Ferreira

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.

Imagine that, recommending resurfacing when putting new pads on.

I’m sure the bureau lied about the last time pads were changed, the last time rotors were changed, etc.

God I would love this case. There’s so much to work with. It’s like going to a doctor, lying about symptoms, allergies, and the last time you ate – then suing the doctor for malpractice when you die from an adverse reaction to a known (only to you) allergy. It’s insane.

Soon they’ll learn. It’s just unfortunate it’s gone this far. The lengths the Bureau will go to put shops out of business is phenomenal.

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!”

My first inclination was that perhaps a customer scorned? A consumer who had a bad experience with the shop in question? The IP address attached to the comment suggested something else…

IP: XXX.XXX.7.90 , webuser.dca.ca.gov

So, for anyone who is unfamiliar with a blog, anytime you leave a comment, it automatically leaves your IP address. I don’t have any spy equipment on the site, it just automatically tells you where the comment is from.

For instance, if you left the comment from your house, it would say IP: Comcast Communications, Time Warner, etc…

So, for those who don’t know, the Bureau of Automotive Repair is run through the Department of Consumer affairs whose website happens to be www.dca.ca.gov…

The Bureau of Automotive Repair is leaving comments.

This comment was left by the Department of Consumer Affairs. I can’t tell what Department of Consumer Affairs it was left by – what board or what bureau, but it’s safe to say that it was the Bureau of Automotive Repair.

So, without further adieu, welcome! I suggest you start here at this post.

Last week, we welcomed the Attorney General’s office, showing them around, letting them know the party of railroading shops was over. I happily extend the same message to the Bureau of Automotive Repair.

But, in all due fairness (fairness being something the Bureau of Automotive Repair knows nothing about), I will happily respond to the comment with pleasure.

Let’s take a look again…

“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!”

I’m trying to discover what the bad example was.

In the blog, I recommended that if the bureau or a police officer showed up to your door with a subpoena warrant, or other legal instrument authorizing a search, let them through. Why? You don’t fight the police – ever. Why? Because you will lose – every time.

Where do you fight the Bureau of Automotive Repair?

Where do you fight? In the courtroom. The police, like the Bureau of Automotive Repair, break the law constantly. Why? Because they play the odds. What odds? That you will not consult an attorney. It’s the same trick they’ve been pulling for quite some time, harass, cajole, oppress, make em’ take us to court – our lawyers, the attorney generals office, we get for free, we know you have to pay – so take us to court.

I guess I should have clarified. There’s street law, and there’s courtroom law. Street law is what happens on the street, where peace officers and agencies break the law frequently. Then there’s courtroom law, where agencies are forced to atone for their sins.

It’s simple, fight the courtroom law battle, not the street law battle, and I quote “You have rights – enforce them through the legal process… not with a baseball bat.”

I’m pretty sure giving this as an example of what not to do – go after a peace officer with a baseball bat – was good advice, but please correct me if I’m wrong.

I have no idea what the shop was doing. The article alleges continuing to repair vehicles despite a license revocation or suspension. The key word is ‘allege’, why? Because until a judge or jury convicts them as such, there’s a little thing in the law we like to call innocent until proven guilty. Until they are proven to be guilty, they are innocent. The burden of proof (the job of proving they were engaging in such behavior) is on the government.

How Shops and Techs are Getting Ripped Off

Were people getting ripped off? I don’t know, I haven’t seen the evidence. I make no claims as to their culpability. If I’ve learned anything about dealing with the Bureau of Automotive Repair, I’d say look in the mirror before you start suggesting people are getting ripped off.

You reprogram ECUs and coolant temp sensors so it doesn’t trip the check engine light, then lie to the service writer about whether the car takes a long time to warm up when you know damn well you removed the spring on the thermostat, causing the car to take 10 minutes of driving to warm up. You restrict hoses, rip off timing indicator marks, put methanol in the gas tank to lower NOx’s so it looks like timing is ok. You send in Astro Vans that take 20 minutes after wading through spilled soda, coffee, fries, and god knows what to remove the dog house all so a tech can make sure the PCV valve is there.

Really guys? Now who is getting ripped off?

I know how you guys work. A consumer calls complaining about shop X. They brought the car into the shop because it had a check engine light on and the smog station wouldn’t smog it. So shop X diagnoses it, pulls a downstream O2 code, tells the customer, customer authorizes it, fixes it. $100 part, $100 labor, $200.

Customer goes back to the smog station, performs a check. Car fails the functional EGR test. Customer is pissed. Customer goes back to Shop X. Shop X feels bad, diagnoses it for free, tells the customer that because you drove your 2001 Soccer Mom Van around with the check engine light on for 8 months with a bad O2, it ran rich. Because it ran rich, extra unburnt fuel was in the combustion chamber overwhelming the EGR, so your EGR was breathing like it smoked 2 packs a day suffering from emphysema, and it ripped it’s “lungs”, i.e., the EGR diaphragm. Now you need a new EGR valve.

Well the EGR is about as easy to get to as Atlantis is to find, so its 2 hours labor at $100 an hour and a $100 part. So $300 for the job.

Now the customer is pissed. It went from a $40 Smog to a $580 job in no time.

So what does the customer do? She calls the Bureau of Automotive Repair. Files a complaint. “This shop charged me $300 for this little part and $200 for an O2, and I had to pay to Smog the car twice! They’re ripping me off!!! It’s all their fault!!”

Lets go back real quick – who drove around for 8 months with the check engine light on? Exactly.

But I digress, so what does the Bureau do? Instead of calling the shop, finding out what happened, talking to some in-house experts, and finding out that this customer is off her rocker, you feel you have the grounds to institute an undercover car program against shop X because after all – you got a consumer complaint!

So you send in reprogrammed ECU cars booby trapped to all hell, stuff the original engineer who designed the damn thing wouldn’t figure out, and file a complaint through the Attorney General’s Office to revoke their license. And just to be thorough, you send in cars with methanol in the gas tank, timing indicators ripped off, PCV valves buried under intake cars that would take 2 hours to smog if done by the book (which you know) and pull the smog stations license.

So you call the consumer back, say you were right! They were bums! They were perpetrating fraud; we’ll make it a condition of probation that shop X pays restitution to you for your troubles!

So I ask again, who’s really getting ripped off?

A Warning to the Bureau of Automotive Repair

You know whom I have no sympathy for? You. That’s right, you, the Bureau of Automotive Repair. You want to talk about all the illegal crap you’ve pulled? Let me know where and when, I’ll give you a run down of what I know from the cases I’ve seen. I’ll show you a video where a guy spends an hour with a timing gun in his hand trying to check functional timing after you removed the timing indicator. I’ll show you Alldata reports of a car you sent in undercover that has no schematics for the PCV. Not in Mitchell, Alldata, emissions labels, Haynes, anywhere (it’s under the intake by the way, way in the back, which would require removing the intake to check, along with replacing the gasket at about 1.4 labor hours, lets see if this meshes with §44013 (b) of the Health and Safety Code which requires “procedures [for Smog Inspections] shall be simple and cost effective”; would you call that simple?). After all, I bet the Bureau had NO IDEA the PCV was so hard to get to when choosing this car for an undercover run. Nope, no way they knew… right?

As for whoever left this comment, well, I doubt you’ve had a bad experience with the BAR, seeing as their parent organization appears on your paycheck. Rest assured, I look forward to meeting you, preferably on the stand in court, so I can rip your ignorant, law breaking, consumer driven, cheating, lying, mischievous, hypocritical ass for railroading shops in the name of defending consumers from the corrupt organization of Automotive Repair Dealers.

Do I want you to shut down fraudulent shops? Absolutely: the same way I want unethical lawyers who steal money from clients disbarred, the same way I want doctors who make money on the side writing Vicodin prescriptions for friends license taken away, the same way I want male chiropractors who get too friendly with female patients to not have a license.

The point is, find the unethical shops the right way. Someone cleaning piping for friends, I can understand the Bureau pulling his license. A shop that forgets the drain plug, blowing the motor of a customer’s car, who refuses to fix it, I can understand. The crap you guys pull? You ought to be ashamed of yourselves.

So, like I told the Department of Justice, the party is over. Until you start doing things the right way, we’re going to have words. Preferable in a courtroom, in front of a judge, exposing you for who you really are – the true frauds in this mess.

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.

You see, I have Google Analytics embedded in my website, which allows me to track traffic coming in to the site – including city, state, how long someone was there, etc. After noticing a huge increase in visits from Sacramento, I decided to see what their network location was. And up popped:

Department of Justice, CA

Now for most people, this would be troubling – who wants the Department of Justice or the State of California Attorney General looking into you? No doubt it was in response to some of my discovery requests for my clients, heaven forbid I’d want to inspect the vehicle that they claim was able to pass smog at 20 degrees BTDC…  right guys, whatever you say. Those NOx’s would have been within range, absolutely.

So why then? No opposing counsel is based in Sacramento, they’re all in satellite offices in other cities. So who in God’s name is so interested in my firm from Sacramento? And to the tune of a dozen unique visitors?

Well, let’s clear the air. Hi. Hello. How are you? I only have one message for you…

The party is over.

I’m the asshole who will file 16 motions to compel to make you produce that car, the inspection reports, and the alleged “flying colors” passing numbers ‘car X’ had when it was inspected by a “Bureau of Automotive Repair employee” who signed an affidavit stating he performed a passing smog inspection on said vehicles. I will require you to demonstrate the timing procedure used for a car that is OBD I and hidden from view by pumps and belts, wondering how you were able to check the timing on said car, and how a car would even run with some of the setups you allege.

Why? Because this has gone on long enough. I’m tired of you sending in impossible to discover defective cars to shops, nailing them with citations, and refusing to turn over evidence without a court order. I’m tired of you putting guys out of their shops, on the street, taking their jobs and their livelihoods… all in the name of padding your stats so your budget doesn’t get cut.

I’m sick of seeing good shops and techs get railroaded by the Bureau of Automotive Repair, all in the name of protecting consumers from the shop who can’t find a nickel sized PCV valve in a 1988 vacuum line infested, hidden under the intake, Alldata has no schematics, emissions label removed by you, POS.

I don’t blame the Attorney Generals office, after all, the bureau tells you he didn’t check a gas cap, so pull his license and fine him $10,000.00 for the cost of investigation, who are you to say that the bureau was out of line?

You see, the thing is, there’s no internal affairs department for the Bureau of Automotive Repair. There is for police, there is for the DMV, but not for this prosecuting agency under the department of consumer affairs. There’s an ombudsman, that’s it… and who writes his check?

The bureau has seen fit to railroad good shops out of this business all in the name of protecting consumers – why? Because they know, when push comes to shove, who can they turn to for help?

Well I’m here to tell you the party is over.

No more.

Not on my watch.

Consider this the wrong way:

http://www.lodinews.com/articles/2009/05/21/news/3_arrests_090521.txt

What would have been the best way to handle this? Let the Bureau look around all they want. Why? Because I’m sure that warrant or subpoena granting access to the shop had more holes in it than a rusted out quarter panel – you don’t fight the Bureau or the Police for that matter – you’ll never win the street law battle.

The real battle is in court – probable cause – do they have an ironclad warrant? Where’s their evidence? Who’s the judge that signed off on it?

Suppress any evidence obtained – of course the constitution protects private property, effects, including business records, etc.  You have rights – enforce them through the legal process… not with a baseball bat.

Now, although this is TV, it’s embellished in Hollywood fashion to create a feeling of shock and awe in the audience – compounded by the fact it’s the opening intro to a full hour episode – it reminded me of the Bureau of Automotive Repair.

Now then, although they’re not going to pull you in to a interrogation room and convince you that an accomplice is giving you up, they still employ many of the same techniques to get admissions from you.

I’ve heard some of the most ridiculous assertions from the Bureau – we’ve got you on tape, we’ve got hidden cameras, we’ve got pictures, sent in a dozen undercover cars and caught you violating provisions of the health and safety code, the bureau of automotive repair act, the motor vehicle inspection program (etc.) on 10 of them, but here – if you sign off on this one isolated case, which we have video tape evidence of (but won’t show it to you without “a court order”), agree to probation and pay a fine – we’ll let you keep your license.

We look at Bunk on The Wire and think no one is that deft about interrogation techniques. Everyone knows the drill – don’t talk to the police, ask for a lawyer – you’ll only get into trouble.

It’s the same thing with citations. Of course they’re going to say you don’t need to consult a lawyer. Of course they’re going to say they have all this evidence – a lawyer will not help you. Of course you only get to see it with a court order (not true).

If you watched The Wire – you know the fascination with “closing rate” or percentage of cases that come in are solved.

Just like police officers, the Bureau wants to close cases. They need stats. They need to show citations and shop closures every month – and they are not prevented from lying to do so.

From claiming they have video tape evidence, to undercover agents watched the tech do x, y, and z, etc., they use it all – everything to get you to roll over and not enforce your rights.

I’m here to tell you that it’s your right to enforce your rights. Don’t let the Bureau trample them. A citation can be a death knell to your career. It stays on your record, it could prevent your employment prospects in the future if you’re ever leave a job for greener pastures, etc.

Fight them. The Bureau never has the case they say they have – protect your rights and protect your career.

Small claims court punishes plantiffs – the people who bring the suit. If they lose at the small claims level, their right to appeal is gone. If they try to bring suit in limited civil court, alleging the small claims court trial was mishandled, it’s defeated with res ajudicata, a principle that lets the plaintiff know they’ve already had a bite at the apple – they’ve had their shot.

What I care about for my clients is the right to appeal – that’s where you win or lose. I could care less about the initial small claims court hearing. Win, lose, or draw – I want to get my client to an appeal. If you file in small claims, you can’t appeal – but if you’re a defendant, you have a right to appeal.

In an appeal, that’s where you bring in the legal doctrine to defeat your opponent. We’re talking statutes, legislation, contractual obligations, theories of unjust enrichment, estoppel theory, and everything else under the sun.

You’re allowed to bring an attorney to an appeal. You’re also allowed to file a brief – a motion of points and authorities – basically a memo telling the judge why the case should be decided in your favor.

Small claims court is decidedly informal – no attorneys allowed. Because of this, rules are generally broken in favor of “splitting the baby” – which usually results in some sort of financial liability for the shop or tech. It’s really a glorified ADR (alternative dispute resolution) hearing – not a court of law. The judge doesn’t really apply the law correctly, as he’s usually a commissioner, a practicing attorney filling in, resulting in misapplication.

What you want is a court of law – you want to be in front of a judge – you want to file a brief – you want the judge to know why you’re right.

Any lawyer worth his salt will tell you the trial is won or lost on the written brief.

Who cares if you lose at the small claims hearing – an appeal is where small claims court plaintiffs get slaughtered.

This is no longer the case.

Chances are the shop or tech’s issue doesn’t break the $7,500 limit for small claims court filings, leading you to believe the proper place to enforce your legal rights is small claims court. You’d be wrong.

There are some great things about small claims court – the $20 filing fee, the quickness you’re able to appear in court, the simplicity of the form, and the best part – no one can bring a lawyer. You can seek the advice of an attorney beforehand of course, but it’s you versus them – that’s it.

So what’s the downside?

Small claims court is generally judged by commissioners – local practicing attorneys who “fill in” for the court.

Commissioners generally try to “split the baby” – even if you’re right. Even if you have a signed copy of the invoice, a notation describing the phone call where additional work was authorized, etc. – expect any damages to be halved, immediately upon entering small claims court.  Not to mention the high regard commissioners have for people in the automotive industry – seen as hustlers trying to pull the wool over unsuspecting customer’s eyes.

Also, your right to appeal your decision if the commissioner misapplies the law, misapplies the facts, decides he doesn’t like mechanics. . .

The right to appeal is the one of the most important avenues in the litigation toolbox of a technician – because that’s where the law is looked at – not some whining customer who claims they didn’t authorize work.

So where do you file? Limited Civil Court. You get to turn in a brief of points and authorities on the law, in front of a real judge, where your signed invoice is the only evidence you need.

You want to be able to bring a lawyer – you want to force the other side to have to hire a lawyer. You want the other side knowing you mean business. No one takes small claims court seriously.

Your attorney should take care of your lawsuit while you’re in the shop making money.

That’s the way it should be.

- William Ferreira

In taking a look at the Song-Beverly act, at §1792 of the California Civil Code, each part sold comes with an implied warranty of fitness for the specific purpose:

(b) “Implied warranty of fitness” means (1) that when the retailer, distributor, or manufacturer has reason to know any particular purpose for which the consumer goods are required, and further, that the buyer is relying on the skill and judgment of the seller to select and furnish suitable goods, then there is an implied warranty that the goods shall be fit for such purpose…

(c) The duration of the implied warranty of merchantability and where present the implied warranty of fitness shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the
express warranty is reasonable; but in no event shall such implied warranty have a duration of less than 60 days nor more than one year following the sale of new consumer goods to a retail buyer. Where no duration for an express warranty is stated with respect to consumer goods, or parts thereof, the duration of the implied warranty shall be the maximum period prescribed above.

(d) Any buyer of consumer goods injured by a breach of the implied warranty of merchantability and where applicable by a breach of the implied warranty of fitness has the remedies provided in Chapter 6 (commencing with Section 2601) and Chapter 7 (commencing with Section 2701) of Division 2 of the Commercial Code, and, in any action brought under such provisions, Section 1794 of this chapter shall apply.

What does this tell you? Well, reading in between the lines, through the legalese, 60 days from purchase, you have an implied warranty of fitness in the purchased part. If it fails, it’s under warranty.

Guess what remedies are provided under the commercial code? That’s right – recovery of labor to remove the part and replace it. The part should have worked the first time.

Don’t send the part to the manufacturer. Gather some independent evidence. 90% of the time, the manufacturer will claim installation error or technician error as the result. Right – a technician with 30 years on the job, ASE certified master technician installed a two-bolt alternator wrong.

If you believe that, I’ve got a bridge to sell you.

Don’t let manufactures skirt the warranty, document your position, get them to reimburse you for your time. It’s the law.