Notices aimed at voluntary compliance
The BAR said it has suspended issuing the NOV and halted disclose of the NOV to the public, especially on its Web site. Patrick Dorais, acting BAR chief, said the notices were aimed at getting repair shops to comply voluntarily with regulations.
"We're glad to see the BAR has recognized the unfairness of the existing system," said Michael Camunez, attorney for Caliber. "We hope the lawsuit served as a wake-up call."
Not everyone was happy with the BAR's action. At least one consumer group expressed alarm, saying the decision will deprive the public of information about past problems. "It's pretty outrageous that public disclosure would disappear," said Jamie Court, of the Foundation for Taxpayer and Consumer Rights in Santa Monica. "It's unfathomable to me that disclosure would be out because of a few bugs in the bath water."
Even a group that seeks to change California's Unfair Competition Law, the body of law that permitted the lawsuits, expressed skepticism over the BAR decision. "I'm not sure that depriving the public of information is the best way to go," said John Sullivan, president of the Civil Justice Assn. of California, a tort-reform group lobbying to change the state's Unfair Competition Law.
"This isn't about trying to hide anything from consumers," attorney Camunez said. "The issue here is that the accused should have the opportunity to defend themselves before you go public and label somebody a fraud."
Glenn Mason, a spokesman for the Bureau of Automotive Repair, said the BAR needs time to figure out how best to inform the public. The types of violations written by inspectors include faults such as lacking a business licenses or performing repairs not authorized by the customer. "Our concern was the information was being used for something that we didn't intend. We want to supply the public with as much information as possible so they can make an informed choice."
Text of BAR memo
From: Patrick Dorais, Acting Chief
Bureau of Automotive Repair
Date: February 11, 2003
Subject: BAR Suspends Use of Notices of Violation (NOV)
The Department of Consumer Affairs, Bureau of Automotive Repair (DCA/BAR) has recently suspended the use of the Notice of Violation (NOV) and the public disclosure of consumer complaints that result in the issuance of an NOV. The DCA/BAR is currently reviewing BAR's use of this procedure, as well as the format and text used throughout the Department to provide information to the public.
BAR's use of NOVs has always been intended as a courtesy notice to licensees as a proactive enforcement effort to inform and to seek voluntary compliance with the relevant statutes and regulations. NOVs have typically been issued when less serious violations are confirmed in the course of investigating consumer complaints or performing licensed station inspections.
There has never been a penalty attached to the issuance of an NOV; they have always been issued by BAR as a way of alerting the licensee of a need to take corrective action. Moreover, NOVs have been issued when BAR investigators determined that a formal disciplinary action is not warranted and have been disclosed to the public pursuant to BAR regulations (Title 16, California Code of Regulations, Section 3303.1(b)(1)).
In response to recent inquiries regarding BAR's use of NOVs, coupled with the unintended use of NOV information by certain law firms to secure settlements in a rash of Business & Professions Code 17200 filings, BAR suspended the disclosure of consumer complaints with NOVs on its website on December 5, 2002. BAR also suspended the issuance of NOVs on January 15, 2003.
Although BAR is not issuing NOVs, it will continue to advise licensees of less serious violations that are noted in the course of investigating consumer complaints and performing station inspections. Likewise, BAR will continue to conduct office conferences with licensees when a pattern of these less serious violations develops. The office conference is used to alert the licensee of a developing pattern and to avoid the need for more formal disciplinary action. These are the same progressive enforcement policies that BAR has used in the past to address lower grade violations. The only thing that has been suspended is the actual issuance of the NOV and the public disclosure of consumer complaints with NOVs.