Tuesday, 09 January 2007 12:12

BAR responds negatively to CRAs attempt to compel even-handed enforcement of regs

At the end of the 30-day response period, the Bureau of Automotive Repair (BAR) et al. presented its Answer to the petition for Writ of Mandate filed by the Collision Repair Association of California (CRA) in an attempt to force BAR to settle licensing issues regarding the Progressive Service Center of San Diego. BAR has already determined, as far back as May, that the center qualifies as an Auto Repair Dealer (ARD), and therefore must have a license to operate.

During this 6-month-long stand-off, BAR has not taken any aggressive action to enforce the August 2006 "cease and desist" order sent to Progressive - even with a new administration in place at BAR. The Answer, prepared by the Attorney General's office, states that in response to the demand to cease and desist operations as an ARD or obtain a license, Progressive offered to work with BAR by engaging in discussions of how to avoid unlicensed activity and allowed BAR further access to its operation.

BAR avers that it is currently working with Progressive to ensure that its activities are compliant with the law - what BAR considers as analogous to an informal in-house review. Furthermore, the Answer purports that the petition does not meet two basic requirements essential to the issuance of the writ: "a clear, present, and ministerial duty upon the part of respondent [BAR] and a clear, present and beneficial right in the petitioner [CRA] to the performance of that duty. Aside from issuing a cease and desist letter, the BAR may "refer the case to the District Attorney's office for prosecution, seek injunctive relief civilly, or may privately seek to compel compliance through negotiation and persuasion."

The bottom line of BAR's answer to CRA's complaint: That as a private party, CRA cannot seek to determine how BAR enforces the cease and desist order. This is the basis for asking that the petition for a Writ of Mandate be dismissed. Attorney for CRA Lionel Aiken, Kay & Merkle, explained that procedurally the legal process is taking its predictable course.

"It will probably end up in a hearing that requires at least 45 days notice - probably in the spring. Ultimately the issue that will be tried is whether Progressive needs a license to operate repair facilities in California. BAR has already determined that the San Diego center must be licensed based on their daily operations."

Short answer

When contacted for a statement, Glenn Mason, spokesman for the BAR, replied that "the department does not comment on matters involved in pending litigation."