before the director department of consumer affairs...

BEFORE THE DIRECTOR DEPARTMENT OF CONSUMER AFFAIRS

BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

In the Matter of the Accusation Against:

AUTO SMOG & REPAIR STATION, NAZARI 3 LLC, Owner Automotive Repair Dealer Registration

No. ARD 258891 , Smog Check Station License No.

RC 258891 ,

and

MIKE NAZARI, Smog Check Inspector License

No. EO 631723, Smog Check Repair Technician

No. EI 631723,

Respondents .

Case No. 79/16-41

OAH No. 2015120266

DECISION

The attached Proposed Decision of the Administrative Law Judge is hereby accepted and adopted by the Director of Consumer Affairs as the Decision in the aboveentitled matter.

Th is Decis ion sha II beco me effective --"""""7II"""'=----="-"":...J..-~"'-'--"'---

DATED:

Supervising Attorney Division of Legal Affairs Department of Consumer Affairs

BEFORE THE DEPARTMENT OF CONSUMER AFFAIRS

FOR THE BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA


AUTO SMOG & REPAIR STATION, NAZARI 3 LLC, Owner Automotive Repair Dealer Registration No. ARD 258891, Smog Check Station License No. RC 258891,

and

MIKE NAZARI, Smog Check Inspector License No. EO 631723, Smog Check Repair Technician No. EI 631723,

Respondents.

Case No. 79/16-41

OAH No. 2015120266

PROPOSED DECISION

Administrative Law Judge Karen Reichmann, State of California, Office of Administrative Hearings, heard this mattcr on May 10, 2016, in Oakland, California.

Deputy Attorney General Nicholas Tsukamaki represented the Bureau of Automotive Repair.

Respondent Mike Nazari was present at the hearing and represented himself.

The record was left open until May 20, 2016, for complainant to submit license certifications and a declaration of the Bureau's investigation costs.

The Bureau's submission was received on May 18, 2016. No objection was filed. The license certifications are marked as exhibit 4 and admitted into evidence. The Bureau's declaration of costs is marked as exhibit 5 and admitted into evidence.

The record closed and the matter was submitted for decision on May 20, 2016.

FACTUAL FINDINGS

1. Respondent Mike Nazari is the owner of Auto Smog & Repair Station in Pittsburg. As owner of the facility, respondent holds Automotive Repair Dealer Registration No. ARD 258891, and Smog Check Station License No. RC 258891. The facility has been licensed since 2009.

Respondent is also licensed as a smog check inspector and smog check repair technician. He holds Smog Check Inspector License No. EO 631723 and Smog Check .Repair Technician License No. EI 631723. He has been licensed since 2010.

2. As part of a smog inspection, teclmicians mllst perform a test of the vehicle's on board diagnostic system, if the vehicle has one. Such vehicles have an internal computer system, known as the powertrain control module (PCM), which uses diagnostic monitors to evaluate the vehicle's systems and components. The monitors store diagnostic trouble codes when problems are detected. Some trouble codes will cause the vehicle's malfunctiou indicator lamp (MIL), also known as the check engine light, to illuminate. A vehicle cannot pass a smog inspection if the MIL is illuminated. A technician can read the vehicle's computer system with a diagnostic scan tool and determine what trouble codes have been stored. The technician uses the codes to figure out what is wrong with the vehicle and what repairs are necessary.

The diagnostic scan tool resets the vehicle's monitors. The vehicle cannot pass a smog inspection unless a certain number of the diagnostic monitors have been l'lm to completion. If the monitors have not been run, the vehicle will need to be driven until the necessary monitors are "complete" before the vehicle will pass a smog inspection.

3. In response to numerous consumer complaints filed against respondent, the Bureau conducted an undercover investigation. Three cars were specially modified and sent to the facility for repair and smog inspection.

2001 Dodge Dakota

4. Between March 28, 2014, and May 2, 2014, Bureau Program Representative II David Mummert prepared a 2001 Dodge Dakota for use in an undercover run. Mummert installed brand new spark plugs, ignition wires, ignition rotor, distributor cap, camshaft

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position sensor, ignition coil, positive crankcase ventilation, crankcase ventilation fresh air hose, air filter, four oxygen sensors and wiper blades.

Mummert tested all six fuel injectors and the fuel pump and found them all to be in " good condition.

He test drove the Dakota and checked the vehicle's on-board diagnostic monitors and determined that there were no diagnostic trouble codes. He performed a smog inspection and the vehicle passed.

Mummert then tampered with the number one fuel injector so that it would not spray fuel. This modification made the engine misfire and the vehicle run rough. After driving the" vehicle in this condition, the vehicle's PCM registered two diagnostic trouble codes: P0301 (misfire on number one cylinder) and P0171 (lean fuel condition on engine bank number one). The vehicle's MIL became illuminated. In this condition, the vehicle could not pass a smog inspection.

The only repair the vehicle needed was the replacement of the number one cylinder fuel injector.

5. Mummert released the Dakota to Bureau Program Representative III Daniel Breitbach. Breitbach turned it over to Program Representative I Philip Rice and directed him to take it to respondent's facility. On May 21,2014, Rice drove the vehicle to the facility and talked with respondent. Rice identified himself using an alias. Rice told respondent that the MIL was on and that he needed the car to pass a smog inspection because he had recently purchased it. Respondent gave Rice a work order on which he wrote "MIL on diagnostic 90.00." The mileage on the odometer was 123,176.

Rice called respondent two days later and respondent told him that there might be a problem with the "MAP sensor" but that it was necessary to do a "tune up" of the vehicle first. Respondent told Rice that the tnne up would cost $350 and Rice agreed. A few days later, respondent told Rice that the fuel pressure was low and that the vehicle needed a new fuel pump which would cost an additional $650. Rice consented. The following day, respondent told Rice that the vehicle needed to he driven to run the monitors before the vehicle could pass a smog inspection. Respondent told Rice he had put the vehicle on a machine to try to run the monitors "as a favor," but that there were still two monitors that were not complete. Rice agreed to have respondent drive the vehicle as needed to run the monitors for an additional $90. Rice picked up the vehicle on May 29, 2014, and paid respondent $1,248.25. The odometer now read 123,252. The invoice incorrectly stated that the mileage out was 123,176.

6. Respondent gave Rice an updated work order, an invoice, and the vehicle inspection report for the smog inspection. These documents reflect that respondent replaced the vehicle's spark plugs, ignition wires, PCV valve, distributor cap, ignition rotor, and air

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filter, as well as the fuel pump assembly. The invoice further stated that after driving the vehicle, all monitors were complete. The invoice respondent provided to Rice did not mention that the fuel injectors had been replaced.

7. The Dakota was returned to Mummert on May 29, 2016. Mummert inspected it and determined that the number one and number five fuel injectors had been replaced, even .though only the number one injector was in need of being replaced. In addition, spark plugs, ignition wires, pev valve, distributor cap, ignition rotor, air filter, and fuel pump had all been replaced, even though these items were all in good condition and not relevant to the problem which had caused the vehicle's MIL to illuminate.

Mummert checked the vehicle's monitors and determined that one of them was in fact not complete, in contradiction to the statement on the invoice that all were complete. The vehicle could still lawfully pass a smog inspection with this one monitor not complete because this vehicle is allowed to have one incomplete monitor.

2002 Dodge Ram

8. Between May 30, 2014 and June 26, 2014, Bureau Program Representative II Jeff Vietzke prepared a 2002 Dodge Ram pickup truck for use as an uridercover vehicle.

Vietzke inspected the vehicle and determined that it was in good working condition. He installed two new downstream oxygen sensors in the vehicle, bank 1 sensor 2 and bank 2 sensor 2. Vietzke performed a smog inspection and the vehicle passed.

Vietzke installed a defective oxygen sensor heater relay in the vehicle. This caused the malfunction indicator lamp to illuminate and caused the vehicle's computer to store diagnostic trouble code P0136 (bank one sensor two heater circuit malfunction). The only repair needed for this vehicle to pass a smog inspection was the replacement of the relay.

Vietzke released the vehicle to Breitbach, who turned over the vehicle to Rice to bring to respondent's facility.

9. On July 23,2014, Rice brought the Ram to the facility and told respondent that the MIL was illuminated and that the vehicle needed a smog inspection for registration renewal. The odometer read 132,029. Respondent gave Rice a work order on which he wrote "MIL on diagnostic 90.00."

Rice spoke with respondent 011 the phone later that day. Respondent told him that there was a defective oxygen sensor (bank 1 sensor 2) which needed to be replaced. Respondent suggested replacing all four oxygen sensors because, in his opinion, it was likely that they were all worn and could fail soon. Respondent stated it would be $480 to replace all four sensors. Rice initially consented, but then called respondent back and asked if all sensors required replacement. Respondent stated that it was not required but recommended.

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Rice asked to have just the one defective sensor replaced. Respondent told him that it would cost $126.38 "out the door" and that Rice would have to drive the vehicle for a couple of days to get the monitors to run before the vehicle could pass a smog inspection. Respondent reminded Rice that he offers this service for $90, and Rice consented.

Rice picked up the vehicle on July 25. Rice was charged $374.63. Rice gave respondent $380 and respondent stated that he did not have any change. Rice did not believe that he had any choice and allowed respondent to keep the overpayment. Respondent gave Rice an updated work order, an invoice, and the vehicle inspection report for the smog inspection. At the time Rice picked up the vehicle, the odometer reading was 132,118. The invoice incorrectly stated that the mileage out was 132,029.

10. The vehicle was returned to Vietzke on July 30. He inspected the vehicle and observed that the brand-new bank 1 sensor 2 oxygen sensor that he had installed had been replaced. He further observed that the defective relay had in fact been replaced by swapping it with a spare relay that had been in the vehicle's relay panel. None of the documents provided to Rice by respondent contained any mention of the replaced relay.

2001 GMC Jimmy

11. -Between June 2,2014 and July 2, 2014, Program Representative I Eugene Phillips prepared a 2001 GMC Jimmy for usc as an undercover vehicle. Phillips inspected the vehicle and determined that the emissions components were in good working order. He performed a smog inspection and the vehicle passed. He ruptured the diaphragm on the secondary air shut off valve. This prevented the valve from operating properly and caused -the vehicle's MIL to illuminate and the computer to store diagnostic trouble code P0410 (secondary air injection system malfunction). The only repair needed for the vehicle to pass a smog inspection was the replacement of the air shut off valve. A technician is able to determine that this repair is needed by consulting the manufacturer's manuals or industry pnblications for guidelines in diagnosing this particular trouble code.

12. On August 12, 2014, Phillips released the vehicle to Breitbach, who in turn released it to June Cook, an undercover operator for the Bureau. Cook drove the GMC Jimmy to the facility and told respondent that the MIL was on and that she needed a smog inspection. Cook used an alias. The odometer read 81,067 miles when she brought the vehicle to the facility. Respondent gave Cook a work order on which he wrote "MIL Oll diagnostic 90.00." Respondent called Cook later that day and told her that the vehicle had a defective air injection pump and that there was a recall on the pump. He told her that a llew "dealer" replacement part would cost $760, and that an aftermarket part would cost $400. Cook directed respondent to use the dealer part, stating that she did not want any future problems. Respondent told her that after he installed the part, the vehicle would have to be driven for 150 miles before it would pass a smog inspection. He offered to drive it for her for $90 and Cook consented. Respondent told her that the vehicle would be ready on August 14.

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On August 14 and 15, Cook spoke with respondent who told her the vehicle was still not yet ready for a smog inspection. On August 18, respondent told Cook that there was still a problem with the vehicle's air injection system and that there were two corroded valves that needed to be replaced for $195, including parts and labor. Cook consented.

Cook picked up the vehicle on August 21. Respondent gave her an invoice in the amount of $1,091.50, which she paid in cash. Cook was charged the $352 aftermarket price for the pump and was not informed that an aftermarket part had been used instead of a dealer supplied part. The odometer read 81,556 miles. Respondent provided Cook with an invoice and a vehicle inspection report, but did not provide an updated work order. The invoice incorrectly stated that the mileage out was 81,067.

13. The vehicle was returned to Phillips. Phillips inspected the vehicle and determined that the air injection pump and air check valves, which had been in good working .order, had been replaced. An aftermarket pump was used rather than a new dealer replacement part. The defective air shut off valve had not been replaced and was still installed in the vehicle. Phillips checked the vehicle's monitors and discovered that the secondary air injection monitor was not complete. He drove the vehicle for approximately 20 miles and the MIL illuminated due to diagnostic trouble code P041O.

Other Matters

14. Breitbach testified that there have been numerous consumer complaints against respondent. The Bureau does not issue citations in response to consumer complaints. Bureau representatives visited respondent and counseled him about the allegations in these . complaints and about issues with his documentation. A conference was held with respondent in April 2014, shortly before the undercover runs took place.

15. Breitbach explained that respondent did not adequately document consent to perform work on the work orders and invoices. An automotive repair dealer is required to document on the work order the date, time, name of person authorizing consent, telephone number used, and specification of the additional parts and labor. The same information must be included on the invoice, unless the customer signs an acknowledgement of notice and oral consent on the invoice. Breitbach explained that respondent's documentation of oral consent was deficient as to the Dakota because he failed to document consent for replacement of the fuel pump and for driving the vehicle to run the monitors pursuant to the Bureau's regulations. Breitbach opined that respondent's documentation of oral consent was deficient as to the Ram because he failed to adequately ciocllment.consent for replacing the oxygen sensor and for driving the vehicle to complete the monitors. Breitbach opined that respondent's docun1entation of oral consent was deficient as to the GMC Jimmy because he failed to adequately document consent for replacing the fuel pump and valves.

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16. Breitbach opined that respondent's actions in regmds to the tln'ee vehicles constituted a willful departure from or disregard for accepted trade standards for good and workmanlike repair. Breitbach explained that facilities are required to have manufacturer and industry materials to assist with diagnoses of trouble codes. These materials would have informed respondent of the necessary repairs.

17. Breitbach's testimony was credible and persuasive in all respects.

Respondent's Evidence

18. Respondent denied ever committing fraud or intentionally stealing from customers. Respondent insisted that would never replace parts if he knew they were not needed and he would never steal from a customer. His wife was a missionmy and he would not bring money into the house that he had not properly earned. He has turned down offers to cheat on smog inspections. Respondent stated that he is a man of faith and is always aware that God is watching him. He does not believe that money is everything and described several charitable acts that he has performed. Respondent stated that he performed the repairs to the best of his ability in accordance with the way he was trained. He disputed replacing brand new parts. Respondent questioned why the Bureau did not have the undercover operators ask him to return the parts when they brought the cars into his facility so that there could be no disagreement about their condition.

Respondent was in the business of bu ying and selling cars nntil the economy collapsed in 2009, and that is when he started doing automobile repairs. Respondent explained that his facility is in a poor community and his customers will complain if their cars do not pass smog inspections.

Respondent believes that he is being retaliated against because he stood up for himself when a Bureau representative came to the facility to question him about a smog inspection he had performed. He questioned why the Bureau is seeking to revoke his license when ilnever issued any citations against him.

Respondent acknowledged that he might not have documented everything properly on his invoices and work orders and explained that English is his second language.

He believes that he should have an opportunity to take classes instead of having his' I icense revoked.

19. Respondent's testimony was not credible. The evidence supports a finding that respondent engaged in fraudulent conduct by performing unnecessary repairs on all three vehicles.

20. Respondent's wife, Rosa Maria Corral, testified on his behalf. Corral is appalled by the accusation. She believes her husband to be hard-working, kind, and honest

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and stated that he strives to be a good example for their son. She noted that people make mistakes and that sometimes different people reach different conclusions when solving a problem. Corral begged the Bureau notto take away respondent's livelihood. She thinks respondent should be required to take classes to improve his skills

Costs

21. In connection with the prosecution of this accusation, the Department of Justice has billed the Bureau $9,832.50 for legal services. These charges are supported by a declaration that complies with the requirements of California<::9de of Regulations, title 1, section 1042. In addition, the Bureau submitted a declaration certifying investigation costs in the amount of $11,094.92. The total costs sought is $20,927.42. This amount is deemed to be reasonable, in light of the scope of the investigation and number of violations alleged.

LEGAL CONCLUSIONS

Untrue/Misleading Statements (First, Tenth, and Eighteenth Causes for Discipline)

1. Business and Professions Code section 9884.7, subdivision (a)(7), and California Code of Regulations, title 16, section 3373, authorize the Bureau to discipline the registration of an automotive repair dealer if it made or authorized statements which are untrue or misleading. By stating to the Bureau's undercover operators and documenting in writing that unnecessary repairs were required, respondent made untrue and misleading statements. Cause exists to discipline respondent's automotive repair dealer registration in -light of the matters set forth in Findings 5, 6, 9, 10, and 12.

Fraud (Second, Eleventh, and Nineteenth Causes for Discipline)

2. Business and Professions Code section 9884.7, subdivision (a)(4), authorizes the Bureau to discipline the registration of an automotive repair dealer if it commits acts constituting fraud. Respondent's conduct of accepting payment for replacing parts that did not need to be replaced constituted fraud. Cause exists to discipline respondent's automotive repair dealer registration in light of the matters set forth in Findings 4 through 13.

_ Will fit! Departure ii'om Trade Standards (Third, Twelfth, and Twentieth Callses for Discipline)

3. Business and Profession Code section 9884.7, subdivision (a)(7), Health and Safety Code section 44016, and California Code of Regulations, title 16, section 3340.41, subdivision (d), authorize the Bureau to discipline the registration of an automotive repair dealer if it willfully departed from or disregarded accepted trade standards for good and worlananlike repair. Respondent's conduct ofreplacing parts that did not need replacing in all three vehicles and failing to replace the air shut off valve in the GMC Jimmy constituted

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willful departure from or disregard for accepted trade standards for good and workmanlike repair. Cause exists to discipline respondent's automotive repair dealer registration in light of the matters set forth in Findings 4 through 13, and 16.

Failure to Document Oral Consent for Work Done in Excess of Estimated Price (Fourth, Thirteenth, and Twenty-First Causes for Discipline)

4. Business and Professions Code sections 9884.7, subdivision (a)(6), and 9884.9, subdivision (a), and California Code of Regulations, title 16, section 3353, subdivision (c)(l), authorize the Bureau to discipline the registration of an automotive repair dealer if it failed to properly document oral consent for work done in excess of the estimated price on the work order and invoice. A review of the work order and invoices and the testimony of Breitbach established that respondent failed to document oral consent per the Bureau's regulations in relation to the repairs done on all three vehicles. Cause exists to discipline respondent's automotive repair dealer registration in light of the matters set forth in Finding 15.

Dishonesty, Fraud, or Deceit (Fifth and Twenty-Second Causes for Discipline)

5. Health and Safety Code section 44072.2, subdivision (d), authorizes the Bureau to discipline the Smog Check Station License of a licensee who commits any act involving dishonesty, fraud, or deceit whereby alluther is injured. By performing unnecessary repairs on the Dakota and GMC Jimmy, respondent committed dishonest, fraudulent, and deceitful acts. Cause exists to suspend or revoke respondent's smog check station license, in light of the matters set forth in Findings 4 through 13.

Failure to List Repair Work and Parts on Invoice (Sixth and Fourteenth Callses for Discipline)

6. Business and Professions Code section 9884.7, subdivision (a)(6), and California Code of Regulations, title 16, section 3356, subdivision (a)(2), authorize the Bureau to discipline the registration of an automotive repair dealer if it fails to describe and identify all the work performed and all the parts supplied. Respondent failed to document the replacement of the fuel injectors in the Dakota and of the oxygen sensor in the Ram. Cause exists to discipline respondent's automotive repair dealer registration in light of the matters set forth in Findings 6 andIO.

Creating a False and/or Misleading Invoice - Facility (Seventh, Fifteenth, and Twenty-Third Causes for Discipline)

7. Business and Professions Code section 9884.7, subdivision (a)(6), and California Code of Regulations, title 16, section 3373, authorize the Bureau to discipline the registration of an automotive repair dealer if it creates a false or misleading invoice. The invoices for the Dakota and Ram failed to list all the work that had been performed on the

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vehicles. The invoice for the Dakota erroneously stated that all monitors were complete, when in fact one monitor was not complete. The invoice for the GMC Jimmy failed to state that an aftermarket pump was used rather than a dealer supplied pump. Cause exists to .discipline respondent's automotive repair dealer registration in light of the matters set forth in Findings 6, 10, and 12.

Failure to Perform Repairs in Accordance with Required Specifications and Procedures (Eighth, Sixteenth, and Twenty-Fourth Causes for Discipline)

8. Health and Safety Code sections 44072.2 and 44016, and California Code of Regulations, title 16, sections 3340.41 and 3340.45, authorized the Bnreau to discipline a technician if he or she fails to perform repairs in accordance with required specifications and procednres. Respondent failed to perform repairs in accordance with required specifications and procednres in relation to the three vehicles at issue in this case. Respondent performed unnecessary repairs on all three vehicles, and in the case of the GMC Jimmy, failed to perform the one repair that was actually necessary. Cause exists to discipline respondent's technician licenses in light of the matters set forth in Findings 4 throngh 13, and 16.

Creating a False andlor Misleading Invoice - Technician (Ninth, Seventeenth, and TwentyFifth Causes for Discipline)

9. Health and Safety Code section 44072.2 and California Code of Regulations, title 16, section 3373, authorize the Bureau to discipliue a technician if he or she creates a false or misleading invoice. The invoices for the Dakota and Ram failed to list all the work ·that had been performed on the vehicles. The invoice for the Dakota erroneously stated that all monitors were complete, when in fact one monitor was not complete. The invoice for the GMC Jimmy failed to state that an aftermarket pump was used rather than a dealer supplied pump. Cause exists to discipline respondent's technician licenses in light ofthe matters set , forth in Findings 6, 10, and 12.

Appropriate Di,position

10. The Bureau brought three vehicles to respondent's facility. In each case, respondent committed numerous violations of the law.

Respondent performed unnecessary repairs on all three vehicles, replacing parts that were brand-new or in good working condition. For the Dakota and Ram, he failed to document the repairs that actually were necessary to enable the vehicles to pass inspection. Respondent failed to properly repair the GMC Jimmy and the MIL illuminated shortly after the vehicle was returned to the Bureau. Respondent's invoices and work orders contained false and misleading statements. Respondent failed to adequately document oral consent for repairs.

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Respondent denied engaging in fraudulent conduct. His testimony was not credible. The Bureau has received numerous consumer complaints and counseled respondent repeatedly, including a conference that was held in April 2014.

Respondent is unwilling to abide by the law and cannot be trusted to comply with the laws governing automotive repair and smog inspections.

Protection of the public compels revocation of his Automotive Repair Dealer Registration and Smog Check Station, Smog Check Inspector, and Smog Check Technician licenses.

Costs

11. Business and Professions. Code section 125.3 authorizes the Bureau to recover its reasonable costs of investigation and enforcement. In Zuckerman v. Board of Chiropractic Examiners (2002) 29 Cal.4th 32, the California Supreme Court sets forth standards by which a licensing board must exercise its discretion to reduce or eliminate cost awards to ensure that licensees with potentially meritorious claims are not deterred from exercising their right to an administrative hearing. Those standards include whether the licensee has been successful at hearing in getting the charges dismissed or reduced, the licensee's good faith belief in the merits of his or her position, whether the licensee has raised a colorable challenge (0 the proposed discipline, the financial ability of the licensee t9 pay, and whether the scope of the investigation was appropriate to the alleged misconduct. Considering these factors, there is no basis to reduce the costs in this matter.

ORDER

1. Automotive Repair Dealer Registration No. ARD 258891, issued to respondent Mike Nazari, Member Nazari 3 LLC, doing business as Auto Smog & Repair Station, is revoked. Any other automotive repair dealer registration issued to respondent is revoked.

2. Smog Check Station License No. 258891, issued to respondent Mike Nazari, Member Nazari 3 LLC, doing business as Auto Smog & Repair Station, is revoked.

3. Smog Check Inspector License No. EO 631723, issued to respondent Mike Nazari, is revoked.

4. Smog Check Repair Technician License No. EI 631723, issued to respondent Mike Nazari, is revoked.

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5. Respondent shall pay to the Bureau costs associated with its investigation and enforcement pursuant to Business and Professions Code section 125.3 in the amount of -$20,927.42. Respondent shall be permitted to pay these costs in a payment plan approved by the Bureau.

DATED: May 26, 2016

(x::' b:: ~';cJ,.,,,"--~213262228BA640F. KAREN REICHMANN Administrative Law Judge Office of Administrative Hearings

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KAMALA D. HARRIS Attorney General of California JOSHUA A. ROOM Supervising Deputy Attorney General NICHOLAS TSUKAMAKl Deputy Attorney General State Bar No. 253959

455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-1188 Facsimile: (415) 703-5480 E-mail: [email protected]

Attorneys for Complainant

BEFORE THE DEPARTMENT OF CONSUMER AFFAIRS

FOR THE BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA


AUTO SMOG & REPAIR STATION NAZARI 3 LLC, OWNER 1700 North Parkside Dr. Pittsburg, CA 94565

Automotive Repair Dealer Registration No. ARD 258891

Smog Check Station License No. RC 258891

and

MIKENAZARI 1700 North Parkside Dr. Pittsburg, CA 94565

Smog Check Inspector License No. EO 631723

Smog Check Repair Technician License No. EI 631723 (formerly Advanced Emission Specialist Technician License No. EA 631723)

/II

/II

Respondents.

Case No. rq /1" -J.j I

ACCUSATION

..smo:;

1

(AUTO SMOG & REPAIR STATION) ACCUSATION

1 Complainant alleges:

2 PARTIES

3 1. Patrick Dorais (Complainant) brings this Accusation solely in his official capacity as

4 the Chief of the Bureau of Automotive Repair, Department of Consumer Affairs.

5 2. On or about July 27, 2009, the Bureau of Automotive Repair issued Automotive

6 Repair Dealer Registration Number ARD 258891 to Auto Smog & Repair Station, Nazari 3 LLC,

7 Owner (Respondent Auto Smog). The Automotive Repair Dealer Registration was in full force

8 and effect at all times relevant to the charges brought herein and will expire on July 31, 2016,

9 unless renewed.

10 3. On or about August 6, 2009, the Bureau of Automotive Repair issued Smog Check

11 Station License Number RC 258891 to Respondent Auto Smog. The Smog Check Station

12 License was in full force and effect at all times relevant to the charges brought herein and will

13 expire on July 31, 2016, unless renewed.

14 4. On or about February 1, 2010, the Director of the Department of Consumer Affairs

15 issued Advanced Emission Specialist Technician License Number EA 631723 to Mike Nazari

16 (Respondent Nazari). Respondent Nazari's Advanced Emission Specialist Technician License

17 was due to expire on February 28, 2014. Pursuant to California Code of Regulations, title 16,

18 section 3340.28, subdivision (e), the license was renewed, pursuant to Respondent Nazari's

19 election, as Smog Check Inspector License Number EO 631723 and Smog Check Repair

20 Tec1mician License Number EI 631723 (technician licenses), effective September 6,

21 2013. Respoudent Nazari's technician licenses will expire on February 28, 2016, unless

22 renewed.!

23 JURISDICTION

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5. This Accusation is brought before the Director of the Deparbnent of Consumer

Affairs (Director) for the Bureau of Automotive Repair (Bureau) under the authority of the

1 Effective August 1, 2012, California Code of Regulations, title 16, sections 3340.28, 3340.29 and 3340.30 were amended to implement a license restructure from the Advanced Emission Specialist Technician (EA) license and Basic Area (EB) Technician license to Smog Check Inspector (EO) license and/or Smog Check Repair Technician (El) license.

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1 following laws. All section references are to the Business and Professions Code (Code) unless

2 othelwise indicated.

3 6. Section 9884.13 of the Code provides, in pertinent part, that the expiration of avalid

4 registration shall not deprive the Director of jurisdiction to proceed with a disciplinary proceeding

5 against an automotive repair dealer or to render a decision temporarily or permanently

6 invalidating (snspending or revoking) a registration.

7 7. Section 118, subdivision (b) of the Code states:

8 "The suspension, expiration, or forfeiture by operation of law of a license issued by a board

9 in the department, or its suspension, forfeitun,o, or cancellation by order of the board or by order

10 of a court of law, or its surrender without the written consent of the board, shall not, during any

11 period in which it may be renewed, restored, reissued, or reinstated, deprive the board of its

12 authority to institute or continue a disciplinary proceeding against the licensee upon any ground

13 provided by law or to enter an order suspending or revoking the license or otherwise taking

14 disciplinary action against the licensee on any such ground."

15 STATUTORY PROVISIONS

16 8. Section 9884.7 of the Code provides, in relevant part:

17 "(a) The director, where the automotive repair dealer cannot show there was a bona fide

18 error, may deny, suspend, revoke, or place on probation the registration of an automotive repair

19 dealer for any of the following acts or omissions related to the conduct of the business of the

20 automotive repair dealer, which are done by the automotive repair dealer or any automotive

21 technician, employee, partner, officer, or member of the automotive repair dealer.

22 "(1) Making or authorizing in any manner or by any means whatever any statement written

23 or oral which is untrue or misleading, and which is known, or which by the exercise of reasonable

24 care should be known, to be untrue or misleading.

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26 "(4) Any other conduct which constitutes fraud.

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"(6) Failure in any material respect to comply with the provisions of this chapter or

regulations adopted pursuant to it.

"(7) Any willful departure from or disregard of accepted trade standards for good and

workmanlike repair in any material respect, which is prejudicial to another without consent of the

owner or his or her duly authorized representative.

"

9. Section 9884.9 of the Code provides, in relevant part:

"(a) The automotive repair dealer shall give to the customer a written estimated price for

labor and parts necessary for a specific job. No work shall be done and no charges shall accrue

before authorization to proceed is obtained from the customer. No charge shall be made for work

done or parts supplied in excess of the estimated price without the oral or written consent of the

customer that shall be obtained at some time after it is determined that the estimated price is

insufficient and before the work not estimated is done or the parts not estimated are supplied.

Written consent or authorization for an increase in the original estimated price may be provided

by electronic mail or facsimile transmission from the customer. The bureau may specify in

regulation the procedures to be followed by an automotive repair dealer if an authorization or

consent for an increase in the original estimated price is provided by electronic mail or facsimile

transmission. If that consent is oral, the dealer shall make a notation on the work order of the

date, time, name of person authorizing the additional repairs, and telephone number called, if any,

together with a specification of the additional parts and labor and the total additional cost, and

shall do either of the following:

"(1) Make a notation on the invoice of the same facts set forth in the notation on the work

order.

"(2) Upon completion of the repairs, obtain the customer's signature or initials to an

acknowledgment of notice and consent, if there is an oral consent of the customer to additional

repairs, in the following language:

'I acknowledge notice and oral approval of an increase in the original estimated price.

(signature or initials)'

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"Nothing in this section shall be constmed as requiring an automotive repair dealer to give

a written estimated price if the dealer does not agree to perform the requested repair.

"

10. Section 44016 of the Health and Safety Code states:

"The department shall, with the cooperation of the state board and after consultation with

the motor vehicle manufacturers and representatives of the service industry, research, establish,

and update as necessary, specifications and procedures for motor vehicle maintenance and tuneup

procedures and for repair of motor vehicle pollution control devices and systems. Licensed repair

stations and qualified mechanics shall perform all repairs in accordance with specifications and

procedures so established."

11. Section 44072.2 of the Health and Safety Code states, in relevant part:

"The director may suspend, revoke, or take other disciplinary action against a license as

provided in this article if the licensee, or any partner, officer, or director thereof, does any of the

following:

"(a) Violates any section of this chapter and the regulations adopted pursuant to it, which

related to the licensed activities.

"(c) Violates any of the regulations adopted by the director pursuant to this chapter.

"(d) Commits any act involving dishonesty, fraud, or deceit whereby another is injured.

"

REGULATORY PROVISIONS

22 12. California Code of Regulations, title 16, section 3340.41, subdivision (d) states:

23 "The specifications and procedures required by Section 44016 of the Health and Safety

24 Code shall be the vehicle manufacturer's recommended procedures for emission problem

25 diagnosis and repair or the emission diagnosis and repair procedures found in industry-standard

26 reference manuals and periodicals published by nationally recognized repair information

27 providers. Smog check stations and smog check technicians shall, at a minimum, follow the

28 applicable specifications and procedures when diagnosing defects or performing repairs for

5

(AUTO SMOG & REPAlR STATION) ACCUSATION

1 vehicles that fail a smog check test."

2 13. California Code of Regulations, title 16, section 3340.45, provides, in relevant part:

3 "(a) All Smog Check inspections shall be perfonned in accordance with requirements and

4 procedures prescribed in the following:

5 "(1) Smog Check Inspection Procedures Manual, dated August 2009, which is hereby

6 incorporated by reference. This manual shall be in effect until subparagraph (2) is implemented.

7

8

"

14. California Code of Regulations, title 16, section 3353 provides, in relevant part:

9 "No work for compensation shall be commenced and no charges shall accrue without

10 specific authorization from the customer in accordance with the following requirements:

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"(c) Additional Authorization. Except as provided in subsection (t), the dealer shall obtain

the customer's authorization before any additional work not estimated is done or parts not

estimated are supplied. This authorization shall be in written, oral, or electronic fonn, and shall

describe the additional repairs, parts, labor and the total additional cost.

"(1) If the authorization from the customer for additional repairs, parts, or labor in excess of

the written estimated price is obtained orally, the dealer shall also make a notation on the work

order and on the invoice of the date, time, name of the person authorizing the additional repairs,

and the telephone number called, if any, together with the specification of the additional repairs,

parts, labor and the total additional cost.

"

22 15. California Code of Regulations, title 16, section 3356 provides, in relevant part:

23 "(a) All invoices for service and repair work performed, and parts supplied, as provided for

24 in Section 9884.8 of the Business and Professions Code, shall comply with the following:

25

26 "(2) The invoice shall separately list, describe and identify all of the following:

27 "(A) All service and repair work performed, including all diagnostic and warranty work,

28 and the price for each described service and repair.

6

AUTO SMOG & REPAIR STATION A '

1

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"(B) Each part supplied, in such a manner that the customer can understand what was

purchased, and the price for each described part. The description of each part shaII state whether

the part was new, used, reconditioned, rebuilt, or an OEM crash part, or a non-OEM aftermarket

crash part.

"

6 16. California Code of Regulations, title 16, section 3373 states:

7 "No automotive repair dealer or individual in charge shaII, in filling out an estimate,

8 invoice, or work order, or record required to be maintained by section 3340.15(e) of this chapter,

9 withhold therefrom or insert therein any statement or information which wiII cause any such

10 document to be false or misleading, or where the tendency or effect thereby would be to mislead

11 or deceive customers, prospective customers, or the public."

12 COSTS

13 17. Section 125.3 of the Code provides, in pertinent part, that the Board may request the

14 administrative law judge to direct a licentiate found to have committed a violation or violations of

15 the licensing act to pay a sum not to exceed the reasonable costs of the investigation and

16 enforcement of the case, with failure of the licentiate to comply subjecting the license to not being

17 renewed or reinstated. If a case settles, recovery of investigation and enforcement costs may be

18 included in a stipulated settlement.

19 UNDERCOVER OPERATION #1- May 21-29, 2014

20 18. From approximately March 28,2014 to May 2, 2014, a Bureau representative

21 inspected and documented a 2001 Dodge. As part of the inspection, the Bureau representative

22 instaIIed the foIIowing parts on the vehicle: spark plugs, ignition wires, PCV valve, distributor

23 cap, ignition rotor, and air filter. The Bureau representative also inspected the vehicle's fuel

24 pump and found it to be within specifications. During the inspection the Bureau representative

25 rendered the vehicle's number one cylinder fuel injector defective so that it would not flow any

26 fuel. As a result of this defect, the Dodge's malfunction indicator lamp (MIL) illuminated and the

27 vehicle's powelirain control module (PCM) stored diagnostic trouble codes (DTC) P0301

28 (misfire number one cylinder) and POI71 (fuel system lean on engine bank number one). The

7

(AUTO SMOG & REPAIR STATION ACC

1 only repair needed for the Dodge to be safely driven was the replacement of the number one

2 cylinder fuel injector.

3 19. On or about May 21, 2014, a Bureau representative drove the Dodge to Auto Smog &

4 Repair Station located at 1700 North Parkside Drive in Pittsburg. The Bureau representative

5 spoke with Respondent Nazari and requested that the vehicle's MIL problem be diagnosed and

6 that the vehicle be smogged. The Bureau representative filled out a work order and signed it.

7 The Dodge's odometer reading was then recorded on the work order and the Bureau

8 representative was given a copy of the work order.

9 20. On or about May 23, 2014, the Bureau representative called the facility and spoke

10 with Respondent Nazari. Respondent Nazari recommended a tune-up for the Dodge, which

11 included "plugs, wires, pev valve, cap, rotor, everything." The Bureau representative orally

12 authorized Respondent Nazari to perform the tune-up.

13 21. On or about May 27, 2014, Respondent Nazari informed the Burean representative

14 that the vehicle's fuel pump needed to be replaced at a cost of $650. The Bureau representative

15 orally authorized Respondent Nazari to replace the fuel pump. Respondent Nazari did not make

16 an adequate notation on the work order Of the invoice of the Bureau representative's oral consent

17 to replace the fuel pump.

18 22. On or about May 28, 2014, Respondent Nazari informed the Bureau representative

19 that there were two On Board Diagnostic (OBD) II monitors that were not running. Respondent

20 Nazari stated that it would cost an additional $90 for him to drive the vehicle so as to get the

21 monitors to run. The Bureau representative orally authorized Respondent Nazari to drive the

22 Dodge in order to get the monitors to run and then to smog the vehicle. Respondent Nazari did

23 not make an adequate notation on the work order or the invoice of the Bureau representative's

24 oral consent to drive the Dodge in order to get the monitors to run.

25 23. On or about May 29, 2014, the Bureau representative picked up the Dodge from the

26 facility and paid Respondent Nazari $1,248.25. The Bureau representative was provided with a

27 copy of the work order, an invoice, and a vehicle inspection report (VIR). The work order lacked

28 a description of certain repairs, parts, and labor associated with the work performed on the

8


1 Dodge. The invoice listed the odometer reading as 123,176 miles at the time the Bureau

2 representative picked up the vehicle from the facility. In fact, the odometer reading at the time

3 the Bureau representative picked up the vehicle from the facility was 123,252 miles. The invoice

4 also indicated that the facility had replaced the Dodge's spark plugs, ignition wires, PCV valve,

5 distributor cap, ignition rotor, air filter, and fuel pump, and that all of the OBD II monitors had

6 been run to completion. An inspection of the vehicle, however, indicated that the Dodge's

7 Evaporative OBD II monitor was incomplete.

8 24. Upon re-inspection of the Dodge, a Bureau representative determined that the facility

9 had replaced the vehicle's spark plugs, ignition wires, PCV valve, distributor cap, ignition rotor,

10 air filter, and fuel pump as invoiced, but that those parts were in good working condition and not

11 in need of replacement. The Bureau representative further determined that the facility had

12 replaced the Dodge's fuel injectors for cylinder number I and cylinder number 5. The

13 replacement of those fuel injectors, however, was not listed on the invoice.

14 FIRST CAUSE FOR DISCIPLINE

15 (Untrue or Misleading Statemeuts)

16 25. Respondent Auto Smog's registration is subject to disciplinary action under section

17 9884.7, subdivision (a)(I) of the Code and California Code of Regulations, title 16, section 3373,

18 in that Respondent Auto Smog made or authorized statements which it knew or in the exercise of

19 reasonable care should have known to be untrue or misleading as follows:

20 a. Respondent Nazari told the Bureau's representative that the Dodge needed certain

21 parts that were not in need of replacement.

22 b. Respondent Nazari listed on the invoice for the repairs to the Dodge certain parts and

23 repairs that were unnecessary.

24 SECOND CAUSE FOR DISCIPLINE

25 (Fraud)


27 9884.7, subdivision (a)(4) of the Code in that Respondent Auto Smog committed acts constituting

28 fraud by accepting payment for the replacement of the Dodge's spark plugs, ignition wires, PCV

9


1 valve, distributor cap, ignition rotor, air filter, fuel pump, and fuel injector for cylinder number 5

2 when those parts were not in need of replacement.

3 THIRD CAUSE FOR DISCIPLINE

4 (Willful Departure from Trade Standards)


6 9884.7, subdivision (a)(7) of the Code, Health and Safety Code section 44016, and California

7 Code of Regulations, title 16, section 3340.41, subdivision (d), in that Respondent Auto Smog

8 willfully departed from or disregarded accepted trade standards for good and workmanlike repair

9 in that the repairs performed on the Dodge were not done in accordance with the specifications

10 and procedures established by the vehicle manufacturer or set forth in trade publications.

11 FOURTH CAUSE FOR DISCIPLINE

12 (Failure to DocumentOral Consent for Work Done in Excess of Estimated Price)

13 28. Respondent Auto Smog's registration is subject to disciplinary action under sections

14 9884.7, subdivision (6) and 9884.9, subdivision (a) of the Code, and California Cude of

15 Regulations, title 16, section 3353, subdivision (c)(I), in that Respondent Auto Smog failed to

16 properly document on the work order and/or invoice oral consent obtained from the Bureau

17 representative for certain work perfornled on the Dodge in excess of the estimated price.

18 FIFTH CAUSE FOR DISCIPLINE

19 (Committing Acts Involving Dishonesty, Fraud, and/or Deceit)

20 29. Respondent Auto Smog's station license is subject to disciplinary action under

21 section 44072.2, subdivision (d) of the Health and Safety Code in that Respondent Auto Smog

22 committed acts involving dishonesty, fraud, and/or deceit whereby another was injured, in that

23 Respondent Auto Smog accepted payment for the replacement of the Dodge's spark plugs,

24 ignition wires, FCV valve, distributor cap, ignition rotor, air filter, fuel pump, and fuel injector for

25 cylinder number 5, even though those parts were not in need of replacement.

26 / / /

27 / / /

28 II /

10


1 SIXTH CAUSE FOR DISCIPLINE

2 (Failure to List Repair Work and Parts on Invoice)

3 30. Respondent Auto Smog'sregistration is subject to disciplinary action under section

4 9884.7, subdivision (6) of the Code and Califomia Code of Regulations, title 16, section 3356,

5 subdivisions (a)(2)(A) and (a)(2)(B), in that the invoice for the work performed on the Dodge did

6 not separately list, describe, or identify the replacement of the fuel injectors for cylinder number 1

7 and cylinder number 5.

8 SEVENTH CAUSE FOR DISCIPLINE

9 (Creating a False and/or Misleading Invoice)


11 9884.7, subdivision (6) of the Code and California Code of Regulations, title 16, section 3373, in

12 that Respondent Auto Smog created a false and/or misleading invoice as follows:

13 a. Respondent Auto Smog replaced the Dodge's fuel injectors for cylinder number

14 1 and cylinder number 5 but did not list that work on the invoice.

15 b. The invoice indicates that all of the OBD II monitors were fUn to completion. In

16 fact, the vehicle's Evaporative OBD II monitor was incomplete.

17 EIGHTH CAUSE FOR DISCIPLINE

18 (Failure to Perform Repairs in Accordance with Required Specifications and Procedures)

19 32. Respondent Nazari's technician licenses are subject to disciplinary action under

20 Health and Safety Code sections 44072.2, subdivisions (a) and/or (c) and 44016, and California

21 Code of Regulations, title 16, sections 3340.41, subdivision (d) and 3340.45, subdivision (a)(I),

22 in that Respondent N azari failed to perform repairs on the Dodge in accordance with the

23 specifications and procedures established by the vehicle manufacturer or set forth in trade

24 publications.

25 NINTH CAUSE FOR DISCIPLINE


27 33. Respondent Nazari's technician licenses arc subject to discipliuary action under

28 Health and Safety Code sections 44072.2, subdivisions (c) and/or (d), and California Code of

11


1 Regulations, title 16, section 3373, in that Respondent Nazari created a false and/or misleading

2 invoice as follows:

3 a. Respondent"Nazari replaced the Dodge's fuel injectors for cylinder number

4 1 and cylinder number 5 but did not list that work on theinvoice.

5 b. The invoice indicates that all of the OBD II monitors were run to completion. In

6 fact, the vehicle's Evaporative OBD II monitor was incomplete.

7 UNDERCOVER OPERATION #2 - July 23-25, 2014

8 34. From approximately May 30, 2014 through June 26, 2014, a Bureau representative

9 inspected and documented a 2002 Dodge. During the inspection, the Bureau representative

10 installed a defective oxygen sensor heater relay, which caused the vehicle's MIL to illuminate.

11 The only repair needed for the Dodge to be safely driven was the replacement of the defective

12 relay.

13 35. On or about July 23, 2014, a Bureau representative dropped off the Dodge at the

14 subject facility and requested that the illuminated MIL be diagnosed and thaI the vehicle be

15 smogged. Later in the day on July 23, Respondent Nazari informed the Bureau representative

16 that the vehicle had a defective oxygen sensor that needed to be replaced at a cost of $126.38.

17 The Bureau representative orally authorized the replacement of the defective oxygen sensor. The

18 Bureau representative also orally authorized Respondent Nazari to drive the Dodge in order for it

19 to pass smog at a cost of $90.00. Respondent Nazari did not make an adequate notation on the

20 work order or the invoice ofthe Bureau representative's oral consent to these items.

21 36. On or about July 25,2014, the Bureau representative picked up the Dodge from the

22 subject facility. The cost of the repairs listed on the invoice was $374.63, and the Bureau

23 representative paid Respondent Nazari $380. Respondent Nazari provided the Bureau

24 representative with a copy of the work order, a copy of the invoice, and a vehicle inspection

25 report (VIR). The work order lacks a description of all the repairs, parts, and labor for the work

26 done on the Dodge.

27 37. The Dodge's odometer reading at the time the Bureau representative picked up the

28 vehicle was 132,114 miles. The invoice, however, incorrectly states that the vehicle's odometer

12


1 reading at the time of pick-up was 132,029 miles.

2 38. Upon re-inspection of the Dodge, a Bureau representative determined that the oxygen

3 sensor had been replaced as invoiced. The Bureau representative further determined that the

4 defective relay had been swapped with a good spare relay that was in the vehicle's relay panel.

5 The replacement of the relay, however, was not listed on the invoice.

6 TENTH CAUSE FOR DISCIPLINE

7 (Untrue or Misleading Statements)


9 9884.7, subdivision (a)(1) of the Code and California Code of Regulations, title 16, section 3373,


11 reasonable care should have known to be untrue or misleading, as follows:

12 a. Respondent Nazari listed on the invoice for the repairs to the Dodge certain parts and


14 ELEVENTH CAUSE FOR DISCIPLINE

15 (Fraud)



18 fraud by accepting payment for a new oxygen sensor for the Dodge when that part was not in

19 need of replacement.

20 TWELFTH CAUSE FOR DISCIPLINE



23 9884.7, subdivision (a)(7) of the Code, Health and Safety Code section 44016, and California


25 willfully departed from or disregarded accepted trade standards for good and worlananlike repair,

26 in that the repairs performed on the Dodge were not done in accordance with the specifications

27 and procedures established by the vehicle manufacturer or set forth in trade publications.

28 /1/

13


1 THIRTEENTH CAUSE FOR DISCIPLINE

2 (Failure to Document Oral Consent for Work Done in Excess of Estimated Price)


4 9884.7, subdivision (6) and 9884.9, subdivision (a) of the Code, and California Code of

5 Regulations, title 16, section 3353, subdivision (c)(I), in that Respondent Auto Smog failed to

6 properly document on the work order andlor invoice oral consent obtained from the Bureau

7 representative for certain work performed on the Dodge in excess of the estimated price.

8 FOURTEENTH CAUSE FOR DISCIPLINE

9 (Failure to List Repair Work and Parts on Invoice)


11 9884.7, subdivision (6) of the Code and California Code of Regulations, title 16, section 3356,

12 subdivisions (a)(2)(A) and (a)(2)(B), in that the invoice for the work performed on the Dodge

13 does not separately list, describe, or identify the replacement ofthe vehicle's defective relay.

14 FIFTEENTH CAUSE FOR DISCIPLINE


16 44. Respondent Auto Smog's registration is subject to disciplinary action lmder section

17 9884.7, subdivision (6) of the Code and California Code of Regulations, title 16, section 3373, in

18 that Respondent Auto Smog created a false and/or misleading invoice as follows:

19 a. Respondent Auto Smog replaced the Dodge's defective relay but did not list the

20 replacement on the invoice.

21 b. Respondent Auto Smog charged the Bureau representative for a new oxygen sensor

22 for the Dodge when that part was not in need of replacement.

23 SIXTEENTH CAUSE FOR DISCIPLINE

24 (Failure to Perform Repairs in Accordance with Reqnired Specifications and Procednres)

25 45. Respondent Nazari's technician licenses are subject to disciplinary action under

26 Health and Safety Code sections 44072.2, subdivisions (a) and/or (c) and 44016, and California

27 Code of Regulations, title 16, sections 3340.41, snbdivision (d) and 3340.45, subdivision (a)(I),

28 in that Respondent Nazari failed to perfonn repairs on the Dodge in accordance with the

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specifications and procedures established by the vehicle manufacturer or set forth in trade

publications.

SEVENTEENTH CAUSE FOR DISCIPLINE

(Creating a False and/or Misleading Invoice)

46. Respondent Nazari's technician licenses are subject to disciplinary action under

Health and Safety Code sections 44072.2, subdivisions (c) and/or (d), and California Code of

Regulations, title 16, section 3373, in that Respondent Nazari created a false and/or misleading

invoice as follows:

a. Respondent Nazari replaced the Dodge's defective relay but did not list the

replacement on the invoice.

b. Respondent Nazari charged the Bureau representative for a new oxygen sensor for the

Dodge when that part was not in need of replacement.

UNDERCOVER OPERATION #3 - August 12-21, 2014

47. From approximately June 2,2014 through July 2, 2014, a Bureau representative

inspected and documented a 2001 GMC. During the inspection, the Bureau representative

ruptured the diaphragm on the vehicle's secondary air shut off valve of the secondary air injection

system, which caused the GMC's PCM to detect a problem with the vehicle's air injection system

and tum on the vehicle's MIL. It also caused a DTC P0410 to be stored in the vehicle's PCM.

The only repair needed for the GMC to be safely driven was the replacement of the vehicle's

defective secondary air shut off valve.

48. On or about August 12, 2014, a Bureau operator dropped off the GMC at the subject

facility and requested that the illuminated MIL be diagnosed and that the vehicle be smogged.

The Bureau operator signed a work order and was provided with a copy of it.

49. Later in the day on August 12, 2014, Respondent Nazari informed the Bureau

operator that the GMC had a defective air injection pump, and that the cost to replace the pump

would be either $760 (using an original equipment manufacturer (OEM) part) or approximately

$400 (using an aftermarket part). The Bureau operator orally authorized Respondent Nazari to

replace the pump with an OEM part. The Bureau operator also orally authorized Respondent

15


1 Nazari to drive the vehicle the amount required for it to pass a smog inspection. Respondent

2 Nazari did not make an adequate notation on the work order or the invoice of the Bureau

3 operator's oral consent to replace the air injection pump.

4 50. On or about August 18, 2014, Respondent Nazari informed the Bureau operator that

5 there was a problem with the GMC's air injection system, and that two valves needed to be

6 replaced at a cost of $195. The Bureau operator orally authorized the repair. Respondent Nazari

7 ,did not make an adequate notation on the work order of the Bureau operator's oral consent to

8 replace the two valves.

9 51. On or about August 21, 2014, the Bureau operator returned to the facility to pick up

10 the GMC. She paid Respondent Nazari $1,091.50 for the repairs and received an invoice and a

11 VIR.

12 52. At the time of pick-up, the GMC's odometer reading was 81,556 miles. The invoice,

13 however, incorrectly states that the GMC's odometer reading at the time of pick-up was 81,067

14 miles. The invoice also indical<;s that a DTC P0410B was stored after the air injection pump was

15 replaced. That DTC, however, does not exist for the GMC. The invoice further states that the

16 vehicle's air pump check valve was not working. In fact, the GMC's air pump check valve was

17 properly working.

18 53. Upon re-inspection of the GMC, a Bureau representative determined that the

19 defective secondary air shut off valve had not been replaced. A Bureau representative also

20 determined that Respondent Nazari replaced the vehicle's air pump llsing an aftermarket part, not

21 an OEM part.

22 EIGHTEENTH CAUSE FOR DISCIPLINE

23 (Untrue or Misleading Statements)


25 9884.7, subdivision (a)(I) of the Code and California Code of Regulations, title 16, section 3373,


27 reasonable care should have known to be untrue or misleading, as follows:

28 a. Respondent Nazari told the Bmeau's operator that the GMC needed certain parts that

16


1 were not in need of replacement.

2 b. Respondent Nazari listed on the invoice for the repairs to the GMC certain parts and


4 NINETEENTH CAUSE FOR DISCIPLINE

5 (Fraud)



8 fraud by (1) accepting payment for the replacement of the GMC's air injection pump and air

9 pump check valves even though those parts were not in need of replacement; and (2) replacing

10 the GMC's air pump using an aftermarket part rather than an OEM part.

11 TWENTIETH CAUSE FOR DISCIPLINE



14 9884.7, subdivision (a)(7) of the Code, Health and Satety Code section 44016, and California


16 willfully departed from or disregarded accepted trade standards for good and workmanlike repair

17 in that the repairs performed on the GMC were not done in accordance with the specifications and

18 procedures established by the vehicle manufacturer or set forth in trade publications.

19 TWENTY ·FIRST CAUSE FOR DISCIPLINE

20 (Failure to Document Oral Consent for Work Done in Excess of Estimated Price)


22 9884.7, subdivision (6) and 9884.9, suhdivision (a) of the Code, and California Code of

23 Regulations, title 16, section 3353, subdivision (c)(l), in that Respondent Auto Smog failed to

24 properly document on the work order and/or invoice oral consent obtained from the Bureau

25 operator for certain work performed on the GMC in excess of the estimated price.

26 TWENTY ·SECOND CAUSE FOR DISCIPLINE

27 (Committing Acts Involving Dishonesty, Fraud, and/or Deceit)

28 58. Respondent Auto Smog's station license is subject to disciplinary action under

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section 44072.2, subdivision (d) of the Health and Safety Code in that Respondent Auto Smog

committed acts involving dishonesty, fraud, and/or deceit whereby another was injured in that

Respondent Auto Smog (1) accepted payment for the replacement of the GMC's air injection

pump and air pump check valves even though those parts were not in need of replacement; and

(2) replaced the GMC's air pump using an aftermarket part rather than an OEM part.

TWENTY· THIRD CAUSE FOR DISCIPLINE


59. Respondent Auto Smog's registration is subject to disciplinary action under section

9884.7, subdivision (6) of the Code and California Code of Regulations, title 16, section 3373, in

that Respondent Auto Smog created a false and/or misleading invoice as follows:

a. The invoice indicates that the replacement air injection pump for the GMC is new. In

fact, Respondent Auto Smog replaced the vehicle's air injection pump with an aftermarket part.

TWENTY ·FOURTH CAUSE FOR DISCIPLINE

(Failure to Perform Repairs in Accordance with Required Specifications and Procedures)

60. Respondent Nazari's technician licenses are subject to disciplinary action under

Health and Safety Code sections 44072.2, subdivisions (a) and/or (c) and 44016, and California

Code of Regulations, title 16, sections 3340.41, subdivision (d) and 3340.45, subdivision (a)(I),

in that Respondent Nazari failed to perform repairs on the GMC in accordance with the

specifications and procedures established by the vehicle manufacturer or set forth in trade

publications.

TWENTY ·FIFTH CAUSE FOR DISCIPLINE


61. Respondent N azari's teclmician licenses are su bj ect to disciplinary action under

Health and Safety Code section 44072.2, subdivisions (c) and/or (d), and California Code of

Regulations, title 16, section 3373, in that Respondent Nazari created a false and/or misleading

invoice as follows:

a. The invoice indicates that the replacement air injection pump for the GMC is new. In

28 fact, Respondent Nazari replaced the vehicle's air injection pump with an aftermarket patio

18 (AUTO SMOG & REPAIR STATION) ACCUSATION

1 OTHER MA TIERS

2 62. Under section 9884.7, subdivision (c) of the Code, the Director may suspend, revoke,

3 or place on probation the registrations for all places of business operated in this state by

4 Respondent Auto Smog upon a finding that it has, or is, engaged in a course of repeated and

5 willful violations of the laws and regulations pertaining to an automotive repair dealer.

6 63. Under Health and Safety Code section 44072.8, if Smog Check Station License

7 Number RC 258891 issued to Respondent Auto Smog is revoked or suspended, any additional

8 license issued under this chapter in the name of said licensee may be likewise revoked or

9 suspended by the Director.

10 64. Under Health and Safety Code section 44072.8, if Smog Check Inspector License

11 Number EO 631723 and Smog Check Repair Technician License Number EI 631723 issued to

12 Respondent Nazari are revoked or suspended, any additional license issued under this chapter in

13 the name of said licensee may be likewise revoked or suspended by the Director.

14 PRAYER

15 WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,

16 and that following the hearing, the Director of Consumer Affairs issue a decision:

17 1. Revoking, suspending, or placing on probation Automotive Repair Dealer

18 Registration Number ARD 258891 issued to Auto Smog & Repair Station, Nazari 3 LLC, Owner

19 (Respondent Auto Smog);

20 2. Revoking, suspending, or placing on probation any other automotive repair dealer

21 registration issued to Respondent Auto Smog;

22 3. Revoking or suspending Smog Check Station License Number RC 258891 issued to

23 Respondent Auto Smog;

24 4. Revoking or suspending any additional license issued under Chapter 5 of the Health

25 and Safety Code in the name of Respondent Auto Smog;

26 5. Revoking or suspending Smog Check Inspector License No. EO 631723 and Smog

27 Check Repair Technician License No. EI 631723 issued to Mike Nazari (Respondent Nazari);

28 1/ I

19


1 6. Revoking or suspending any additional license issued under Chapter 5 of the Health

2 and Safety Code in the name of Respondent Nazari;

3 7. Ordering Respondent Auto Smog and Respondent Nazari to pay the Bureau of

4 Automotive Repair the reasonable costs of the investigation and enforcement of this case pursuant

5 to Business and Professions Code section 125.3; and

6

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8.

DATED:

Taking such other and further action as deemed necessary and proper.

u0h~z~~~r~~~~~~~~~-J ~ PATRICK DORAlS

Chief Bureau of Automotive Repair Department of Consumer Affairs State of California Complainant

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(AUTO SMOG & REP AIR STATION) ACCUSATION

before the director department of consumer affairs...

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