Simas & Associates receives phone calls from potential clients all the time. But recently a theme has developed among Bureau of Automotive Repair ("B.A.R.") shop owners which motivated us to write this blog. This blog addresses the four most frequently occurring flaws received and how regularly we automotive repair shops try-and-fail to properely handle their B.A.R. matters.
This problem does not just occur in B.A.R. cases but all across the board in license defense cases our S & A team handles. For some reason the formality of the administrative process or sometimes the government agency representatives lull our clients into thinking they can just talk their way out of a licensing action. This is particularly true in B.A.R. cases for several reasons.
First, although the case may involve a seemingly minor citation, such a citation is grounds for B.A.R. to revoke a shop's and auto repair dealer's STAR certification. In speaking to the client recently, he was under the impression he could simply change ownership or reapply for his STAR certification again in three months. Thus, many rumors swirl about regarding how this works.
Second, some cases are worth taking to hearing and some are not. A shop owner needs legal advice from an experienced attorney to discern the difference. The B.A.R. makes mistakes which can be exploited as part of a defense. Still in other cases, a shop employee attempts to smog a car that has no reason to otherwise be smogged. Only from a careful review of the facts and situation in the case, can we discern whether the case is one to fight or not. And this careful review often requires an appeal of the Citation and a detailed review and analysis of the discovery upon which the B.A.R. has premised its case.
Third, given the formality of the administrative hearing process, the Administrative Law Judge sitting for the B.A.R. in hearing the case expects you the licensee shop owner to put on a defense. Time and time again, potential clients call S & A after the hearing when it is too late. In a recent case, a shop owner called us to help him appeal the upholding of the citation and forthcoming STAR decertification, as a result. We reviewed the administrative law judge’s decision in which she found that “The Respondent did not testify. The Respondent presented no expert testimony.” No wonder the respondent lost!
In numerous cases each year, S & A team members speak to potential B.A.R. clients who have not obtained the discovery upon which the B.A.R. premises a citation, accusation, or other action. The discovery is key to even understanding these cases let alone winning them. It contains all information upon which the B.A.R. and its investigation have premised the action. In cases of an undercover vehicle, discovery included how the vehicle was set up which is key to these defenses. In cases of transmission of smog data, the computer data records sent from the BAR 97 or OBD II smog machines and received by B.A.R. are key to defending the case.
If. B.A.R. makes a mistake, it is almost always in the discovery. And shop owners cannot even begin to evaluate their chances of success without having a lawyer and many times an expert review it.
Hire an Expert
In a recent case discussed above, a potential client shop owner contacted S & A after the hearing to see if anything can be done about the administrative law judge sustaining his citation. Unbelievably, the ALJ made a finding in the case that the respondent shop owner "did not testify, did not present any evidence, and provided no expert testimony." In other words, the ALJ was desperately looking for some reason to believe B.A.R. was not correct. When any licensee fails to present evidence or defenses regarding how B.A.R. is over reaching, they lose.
Many cases, especially Smog check cases including undercover vehicles, are factually and scientifically complicated. And as stated above, B.A.R. makes mistakes. S & A's team has won cases simply based upon the fact that the turbo charged model of a certain Mazda required the disconnecting of the green distributor wire when the non turbo charged vehicle did not. A single fact can such as this completely discredit an entire undercover operation.
Computer experts, smog machine experts, and even sometimes air resource engineers are necessary as possible experts to defend these cases. A recent expert who consulted S&A’s team in a B.A.R. case stated "you guys handle these cases like you handle a Medical Board case." Of course, we took that as a compliment because, like in a Medical Board case, the administrative law judge is no more an expert in automotive repair than in medicine. And in any case proceeding to hearing, we must prepare to educate the ALJ about the issues.
Failure to Defend the Case
The common theme among the flaws discussed above is the shop owner’s overall failure to truly defend the case. In such cases, there is one hearing and one chance to make a record for appeal. Yet we repeatedly see administrative law judge’s findings that the shop owner, and even in some cases their legal counsel, did not put on evidence, had no one testify, and gave the judge nothing to work with.
Not all cases are winnable but not presenting a defense is a waste of time and guaranteed loss. A smog shop license and STAR certification are certainly worth the money, time, effort, and legal fees to vigorously defend. But too many shop owners simply roll over on these issues without even a preliminary case analysis of whether they should.
When B.A.R. cites your smog or repair shop, obtain legal assistance to evaluate the case and whether you should undertake the opportunity to vigorously defend it. We look forward to receiving your call and talking to about your B.A.R. case.