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					                                           Before The
                               State Of Wisconsin
                      DIVISION OF HEARINGS AND APPEALS


 In the Matter of Claims Against the Dealer Bond
                                                             Case Nos. TR-04-0006 & TR-04-0031
 of Alibi Disc Jockey & Limousine, Inc., d/b/a Best
 Auto Sales



                                      FINAL DECISION

       On June 9, 2003, Aldo Martinez filed a claim with the Wisconsin Department of
Transportation (Department) against the motor vehicle dealer bond of Alibi Disc Jockey &
Limousine, Inc., d/b/a Best Auto Sales (the Dealer). On March 5, 2004, the claim along with
documents gathered by the Department during its investigation of the claim was referred to the
Division of Hearings and Appeals. On August 29, 2003, Jake Krueger filed a claim with the
Wisconsin Department of Transportation (Department) against the motor vehicle dealer bond of
the Dealer. On March 12, 2004, the claim along with documents gathered by the Department
during its investigation of the claim was referred to the Division of Hearings and Appeals.

       A Public Notice of Time to File Dealer Bond Claims was published in the Sparta Herald
on July 29, 2004. The notice established a deadline of September 27, 2004, for any other
persons to file a claim against the surety bond of the Dealer. The notice also provided that a
public hearing on all timely claims would be conducted on November 22, 2004. The Department
received no additional claims against the surety bond of the Dealer. The hearing scheduled for
November 22, 2004, was cancelled. The Administrative Law Judge issued a Preliminary
Determination on December 22, 2004. No objections to the Preliminary Determination were
received. Pursuant to Wis. Admin. Code § Trans 140.26(5)(d) the Preliminary Determination is
adopted as the final decision of the Department of Transportation.

        In accordance with Wis. Stat. § 227.47 and 227.53(1)(c) the PARTIES to this proceeding
are certified as follows:

       Aldo Martinez
       106 Hill Street
       Norwalk, WI 54648

       Jake Krueger
       15690 County “A”
       Lot 6
       Sparta, WI 54656
Case Nos. TR-04-0006 & TR-04-0031
Page 2


       Alibi Disc Jockey & Limousine, Inc., d/b/a Best Auto Sales
       10275 Hwy 71
       Sparta WI 54656

       Bonita Trute
       W6112 Welch Prairie Road
       New Lisbon, WI 53950

       Capitol Indemnity Corporation
       Bond Claim Department
       P. O. Box 5900
       Madison, WI 53705-0900


                                       FINDINGS OF FACT

         1.     Alibi Disc Jockey & Limousine, Inc., d/b/a Best Auto Sales, (the Dealer) was
licensed by the Wisconsin Department of Transportation as a motor vehicle dealer. The Dealer’s
facilities were located at 10275 Highway 71, Sparta, Wisconsin. The dealership is out of
business.

        2.     The Dealer had a bond in force from April 7, 1999, until it was cancelled
effective August 22, 2003 (Bond #747910 from Capitol Indemnity Corporation).


                                    Martinez claim (TR-04-0006)

        3.      On December 26, 2002, Aldo Martinez purchased a 1996 Ford Taurus, vehicle
identification number 1FALP57U0TG224479, from the Dealer. Mr. Martinez paid $3595.00
plus taxes and fees for the vehicle. According to the purchase contract, Mr. Martinez purchased
the vehicle “As Is.” The copy of the Wisconsin Buyers Guide in the file does not disclose any
problems or defects with the vehicle. The Wisconsin Buyers Guide is not signed by Mr.
Martinez.

       4.     Immediately after purchasing the vehicle, Mr. Martinez discovered numerous
mechanical problems with the vehicle. The problems included the windshield wipers did not
work, the brakes were “bad,” brake vibration, the front end shimmied, and the transmission
slipped. Two days after purchasing the vehicle, the engine stopped and would not run. Mr.
Martinez telephoned the Dealer. The Dealer sent a mechanic to look at the vehicle. The
mechanic had the vehicle towed back to the dealership to have it fixed.

        5.      Mr. Martinez got the vehicle back a week later. The engine apparently started but
the other mechanical problems persisted. Over the next three months, Mr. Martinez and his
employer repeatedly contacted the Dealer about the problems with the vehicle. The vehicle was
returned to the Dealer for repairs, but the problems continued. At one point, the Dealer
demanded payment from Mr. Martinez for unspecified repairs.
Case Nos. TR-04-0006 & TR-04-0031
Page 3



       6.      On March 21, 2003, Mr. Martinez filed a complaint against the Dealer with the
Wisconsin Department of Transportation – Dealer Section (Dealer Section). At that time the
vehicle was again at the dealership to be repaired. The investigator from the Dealer Section
attempted to contact the Dealer, but received no response. The investigator subsequently
discovered that the Dealer had surrendered its motor vehicle dealer license on March 1, 2003.
The investigator was unable to obtain any records from the Dealer.

        7.      On March 27, 2003, The Dealer apparently returned the vehicle to Mr. Martinez.
(An invoice indicating a repair order dated March 15, 2003 and a delivery date of March 27,
2003 is in the file.) According to the invoice, Mr. Martinez was billed $203.03 for brake repairs,
an oil change, and the replacement of a bulb. Mr. Martinez subsequently took the vehicle to
Sparta General Tire for additional repairs. Mr. Martinez was billed $486.60 by Sparta General
Tire for various repairs, including brake work.

       8.      On June 9, 2003, Mr. Martinez filed a claim against the Dealer’s surety bond.
The amount of the bond claim is $639.90. Mr. Martinez submitted the two repair invoices as
support for the bond claim. The repair invoices total $689.63.

        9.     Motor vehicle dealers are required to perform a reasonable presale inspection of
all used vehicles offered for sale and to disclose the results of the inspection on the Wisconsin
Buyers Guide to prospective customers. The fact that the numerous defective conditions of the
vehicle present at the time Mr. Martinez purchased the vehicle were not disclosed on the
Wisconsin Buyers Guide indicates that either a reasonable presale inspection of the vehicle was
not completed or that the results of inspection were not properly disclosed. Either of these
alternatives constitutes a violation of Wis. Admin. Code § Trans 139.04(4).1

       10.    The Dealer’s actions in this transaction constitute a violation of Wis. Admin.
Code § Trans 139.04(4). A violation of this section, in turn, constitutes a violation of Wis. Stat.
§§ 218.0116(1)(bm) and/or (gm). Mr. Martinez sustained a loss as the result of the violation.

         11.     Mr. Martinez’s claim arose on December 26, 2002, the date he purchased the
vehicle that is the subject of this matter from the Dealer. The bond claim was filed within three
years of the ending date of the period the Capitol Indemnity Corporation bond was in effect and
is, therefore, a timely claim.




1
    Wis. Admin. Code § Trans 139.04(4) provides:

            USED MOTOR VEHICLE GENERAL CONDITION DISCLOSURE. Dealer and salespersons shall
           inform prospective retail purchasers of used motor vehicles in writing before purchase contract execution,
           in the manner and on the form prescribed in sub. (6). This disclosure shall include all significant existing
           mechanical, electrical and electronic defects and damage and evidence of repair to strut tower, trunk floor
           pan, frame or structural portion of unibody, including corrective welds. Disclosure of information shall be
           that which the licensee can find using reasonable care.
Case Nos. TR-04-0006 & TR-04-0031
Page 4



        12.     Mr. Martinez has documented a loss in the amount of $689.63. This amount is
greater than the amount Mr. Martinez listed on the bond claim form. The invoice from Sparta
General Tire includes a charge of $49.95 for an alignment. Someone, presumably Mr. Martinez,
wrote “reimburse[ment] not requested” next to the alignment. This notation explains the
difference between the total of the invoices submitted by Mr. Martinez and the amount of his
bond claim. However, no explanation for deleting this repair is provided. Under the
circumstances, Mr. Martinez is entitled to reimbursement for all the repair expenses he
submitted. The loss sustained by Mr. Martinez was caused by an act of the Dealer that would be
grounds for the suspension or revocation of its motor vehicle dealer license. Accordingly, this
claim is allowable.


                                    Krueger claim (TR-04-0031)

        13.     On December 20, 2002, Jake Krueger purchased a 1989 Cadillac DeVille, vehicle
identification number 1G6C05753K4254535, from the Dealer. Mr. Krueger paid $2082.73
including taxes and fees for the vehicle.

        14.     Mr. Krueger never received a title for the vehicle. On July 22, 2003, Mr. Krueger
filed a complaint with the Department of Transportation—Dealer Section (Dealer Section)
against the Dealer. The investigator from the Dealer Section advised Mr. Krueger that the
Dealer was out of business and recommended that he file a claim against the Dealer’s surety
bond. On August 29, 2003, Mr. Krueger filed a claim against the surety bond of the Dealer. The
claim is in the amount of $5000. The claim is not itemized; however, Mr. Krueger listed as the
elements of his claim “value of car,” “transmission repair,” “need to get alternate transportation,”
“need to store Cadillac while trying to get title,” and “loss of work to resolve issues of
nonregistration.”

         15.     Pursuant to Wis. Stat. § 342.16(1), motor vehicle dealers are required to submit
the certificate of title for the vehicle sold and the buyer’s application for a certificate of title to
the Department within seven days of the sale of a vehicle. The Department never received the
title or an application for title for the vehicle purchased by Mr. Krueger from the Dealer. Mr.
Krueger has not received a title or registration for the vehicle and; therefore, is unable to lawfully
operate or sell the vehicle. Accordingly, Mr. Krueger is entitled to a refund of the amount he has
paid for the vehicle.

       16.      Mr. Krueger sustained a loss of $2082.73 as a result of the Dealer’s failure to
submit the title and application of title to Department of Transportation within seven business
days as required by Wis. Stat. § 342.16. A violation of Wis. Stat. §.342.16 is, in turn, a violation
of Wis. Stat. § 218.01(3)(a)14.

       17.   The bond claim was filed within three years of the ending date of the period the
Capitol Indemnity Corporation bond was in effect and is, therefore, a timely claim.
Case Nos. TR-04-0006 & TR-04-0031
Page 5

       18.       Mr. Krueger’s claim arose on December 20, 2002, the day he purchased the
vehicle that is the subject of this matter from the Dealer.

        19.    Mr. Krueger has documented a loss in the amount of $2082.73, the amount he
paid for the vehicle. Mr. Krueger has not submitted documentation for any of the other elements
of his bond claim. The loss sustained by Mr. Krueger was caused by an act of the Dealer that
would be grounds for the suspension or revocation of its motor vehicle dealer license.
Accordingly, a claim in the amount of $2082.73 is allowable.


                                    CONCLUSIONS OF LAW

        1.     Aldo Martinez’s claim arose on December 26, 2002, the date he purchased the
subject vehicle from the Dealer. The surety bond issued to the Dealer by Capitol Indemnity
Corporation covers a one-year period commencing on April 7, 2002. The claim arose during the
period covered by the surety bond.

        2.    Aldo Martinez filed a claim against the motor vehicle dealer bond of the Dealer
on June 9, 2003. The bond claim was filed within three years of the last day of the period
covered by the surety bond. Pursuant to Wis. Admin. Code § Trans 140.21(1)(d), the claim is
timely.

        3.     Aldo Martinez’s loss was caused by an act of the Dealer that would be grounds
for suspension or revocation of its motor vehicle dealer license. Pursuant to Wis. Admin. Code §
Trans 140.21(1)(c), the claim is allowable. Aldo Martinez has supplied documentation to
support a claim in the amount of $689.63.

        4.     Jake Krueger’s claim arose on December 20, 2002, the date he purchased the
subject vehicle from the Dealer. The surety bond issued to the Dealer by Capitol Indemnity
Corporation covers a one-year period commencing on April 7, 2002. The claim arose during the
period covered by the surety bond.

        5.    Jake Krueger filed a claim against the motor vehicle dealer bond of the Dealer on
August 29, 2003. The bond claim was filed within three years of the last day of the period
covered by the surety bond. Pursuant to Wis. Admin. Code § Trans 140.21(1)(d), the claim is
timely.

       6.       Jake Krueger’s loss was caused by an act of the Dealer that would be grounds for
suspension or revocation of its motor vehicle dealer license. Pursuant to Wis. Admin. Code §
Trans 140.21(1)(c), the claim is allowable. Jake Krueger has supplied documentation to support
a claim in the amount of $2082.73.

       7.      The Division of Hearings and Appeals has authority to issue the following orders.
Case Nos. TR-04-0006 & TR-04-0031
Page 6

                                            ORDERS

        1.      The claim filed by Aldo Martinez against the motor vehicle dealer bond of Alibi
Disc Jockey & Limousine, Inc., d/b/a Best Auto Sales, is APPROVED in the amount of $689.63.
Capitol Indemnity Corporation shall pay Aldo Martinez this amount for his loss attributable to
the actions of Alibi Disc Jockey & Limousine, Inc., d/b/a Best Auto Sales.

        2.       The claim filed by Jake Krueger against the motor vehicle dealer bond of Alibi
Disc Jockey & Limousine, Inc., d/b/a Best Auto Sales, is APPROVED in the amount of
$2082.73. Capitol Indemnity Corporation shall pay Mr. Krueger this amount for his loss
attributable to the actions of Alibi Disc Jockey & Limousine, Inc., d/b/a Best Auto Sales, and
Mr. Krueger shall surrender possession of the vehicle to Capitol Indemnity Corporation.

       Dated at Madison, Wisconsin on January 27, 2005.

                       STATE OF WISCONSIN
                       DIVISION OF HEARINGS AND APPEALS
                       5005 University Avenue, Suite 201
                       Madison, Wisconsin 53705-5400
                       Telephone:    (608) 266-7709
                       FAX:          (608) 264-9885


                       By:    _______________________________________________
                                    MARK J. KAISER
                                    ADMINISTRATIVE LAW JUDGE
Case Nos. TR-04-0006 & TR-04-0031
Page 7



                                                        NOTICE

Set out below is a list of alternative methods available to persons who may wish to obtain review of the attached
decision of the Division. This notice is provided to insure compliance with Wis. Stat. § 227.48 and sets out the
rights of any party to this proceeding to petition for rehearing and administrative or judicial review of an adverse
decision.

          1.        Any person aggrieved by the attached order may within twenty (20) days after
          service of such order or decision file with the Division of Hearings and Appeals a written
          petition for rehearing pursuant to Wis. Stat. § 227.49. Rehearing may only be granted for
          those reasons set out in Wis. Stat. § 227.49(3). A petition under this section is not a
          prerequisite for judicial review under Wis. Stat. §§ 227.52 and 227.53.

          2.        Any person aggrieved by the attached decision which adversely affects the
          substantial interests of such person by action or inaction, affirmative or negative in form
          is entitled to judicial review by filing a petition therefore in accordance with the
          provisions of Wis. Stat. §§ 227.52 and 227.53. Said petition must be filed within thirty
          (30) days after service of the agency decision sought to be reviewed. If a rehearing is
          requested as noted in paragraph (1) above, any party seeking judicial review shall serve
          and file a petition for review within thirty (30) days after service of the order disposing of
          the rehearing application or within thirty (30) days after final disposition by operation of
          law. Any petition for judicial review shall name the Division of Hearings and Appeals as
          the respondent. Persons desiring to file for judicial review are advised to closely examine
          all provisions of Wis. Stat. §§ 227.52 and 227.53 to insure strict compliance with all its
          requirements.




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