BEFORE THE DIRECTOR DEPARTMENT OF CONSUMERAYFAIRS

BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

In the Matter of the Accusation Against:

KUMBA WA R. OH, Owner, d.b.a. AUTO PORT CAR REPAIR SERVICE Automotive Repair Dealer Registration No. ARD 241395

Case No. 79/16-5694

OAH No. 2017020246

Smog Check Station License No. RC 241395 Oakland, CA 94601

and

KUMBAWARUUOH, Smog Check Inspector License No. EO 24793 Smog Check Repair Technician License No. EI24793,

Respondents.

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 above-entitled matter, except that, pursuant to Government Code section 11517, subdivision (c)(2)(C), technical or other minor changes in the Proposed Decision are made as follows:

1. Page 5, paragraph 12: "9884.7, subdivision (a)(3)" is corrected to "9884.7, subdivision (a)(1)."

2. Page 7, paragraph 18: "section 3340.5" is corrected to "section 3340.45." 3. Page 7, paragraph 20: "section 44072.11 subdivision (b) and section 44072.2,

subdivision (d), or section 44072.2, subdivision (d)" is corrected to "section 44072.11 subdivision (b) and section 44072.1, subdivision (d), or section 44072.2, subdivision (d)."

4. Page 8, paragraph 22: "section 3340.5" is corrected to "section 3340.45." 5. Page 8, paragraph 23: "BS 241395, Class A" is corrected to "BS 241395, Class C." 6. Page 8, paragraph 23: "BA 24793, Class A" is corrected to 'BA 24793, Class C." 7. Page 8, paragraph 23: "Stay of Permanent Invalidation" is corrected to "Stay of

Revocation."

8. Page 16, first paragraph: "Health and Safety Code section 44012, subdivision (f), sets forth: [ . . . ] by the department" is deleted as it is the same as the paragraph immediately preceding.

The teclmical or minor changes made above do not affect the factual or legal basis of the Proposed Decision.

This Decision shall become effective __ ____.:c\o::........r..;bv"----.::'--'/'---.:\'-1-_____ _

DATED: - -----+-j ~--""0.-=--o 1-'-!t-+-f ­t I GRACE ARUPO RODRIGUEZ

Assistant Deputy Director Legal Affairs Division Department of Consumer Affairs

BEFORE THE DIRECTOR

DEPARTMENT OF CONSUMER AFFAIRS BUREAU OF AUTOMOTIVE REPAIR

STATE OF CALIFORNIA

In the Matter of Accusation Against:

KUMBAWAR. OH, Owner, d.b.a. AUTOPORT CAR REPAIR SERVICE Automotive Repair Dealer Registration No. ARD 241395 Smog Check Station License No. RC 241395 Oakland, California 94601

and

KUMBA WA RUU OH, Smog Check Inspector License No. EO 24793 Smog Check Repair Technician License No. EI 24793,

Respondents.

Case No. 79/16-5694

OAH No. 2017020246

PROPOSED DECISION

Administrative Law Judge Perry 0. Johnson, State of California, Office of Administrative Hearings, heard this matter on May 23, 2017, in Oakland, California.

Brett A. Kingsbury, Deputy Attorney General, represented Complainant Patrick Dorais.

Neither Respondent Kumbawa Ruu Oh, nor any representative for respondents, appeared at the hearing of this matter.

On May 23, 2017, the matter was submitted for decision and the record closed.

FACTUAL FINDINGS

1. On November 4, 2016, in his official capacity as Chief of the Bureau of Automotive Repair (Bureau), Department of Consumer Affairs (Department), complainant Patrick Dorais filed the Accusation against respondent Kumbawa Ruu Oh (respondent), doing business as Autoport Car Repair, as well as against respondent as a smog check inspector and smcig check repair technician.

Upon a determination that the Accusation and Notice of Hearing had been properly served upon respondent in accordance with Government Code sections 11503, 11505 and 11509, the matter proceeded as a default hearing as to respondent under Government Code section 11520.

License Information

AUTOMOTIVE REPAIR DEALER REGISTRATION

2. On September 15, 2005, the Bureau issued Automotive Repair Dealer Registration number ARD 241395 (registration) to respondent Kumbawa R. Oh, Owner, doing business as Autoport Car Repair Service, located at 3901 San Leandro Street, Oakland, California. This registration will expire on September 30, 2017, unless it is renewed, revoked, suspended, or surrendered before that date.

SMOG CHECK STATION LICENSE

3. On December 1, 2008, the Bureau issued Smog Check Station License number RC 241395 to respondent. This license will expire on September 30, 2017, unless it is· renewed, revoked, suspended, or surrendered before that date.

SMOG CHECK INSPECTOR LICENSE AND SMOG CHECK REPAIR TECHNICIAN LICENSE

4. In 2008, the Burea.u issued Advanced Emission Specialist Technician License number EA 24793 to respondent. The smog technician license was due to expire on January 31, 2014. However, pursuant to California Code of Regulations, title 16, section 3340.28, subdivision (e), in accordance with respondent's election the license was renewed as Smog Check Inspector (EO) license number 24793 and Smog Check Repair Technician (EI) license number 24793. Those licenses will expire on January 31, 2018, unless each is renewed, revoked, suspended, or surrendered before that date. ·

Causes for Disciplinary Action

PREPARATION OF UNDERCOVER VEHICLE

5. Program Representative Richard Meyers (PR Meyers), who is assigned to the Bureau's Sacramento Forensic Documentation Laboratory (Documentation Lab), from

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mid-April until late April 2016, prepared a 2002 Honda Accord, CA (Accord), for use by Bureau personnel in undercover operations.

Before he began to tamper with the Accord, PR Meyers performed smog check inspections of the vehicle to assure that it would pass all phases of the three types of prescribed smog check inspections. The vehicle passed the On-Board Diagnostic Inspection System (OIS) inspection, the BAR-97 Two-Speed Idle (TSI) inspection, and the BAR-97 Acceleration Simulation Mode (ASM) inspection. And, he photographed the vehicle's patts that he intended to remove for the vehicle's use in undercover operations.

PR Meyers removed from the Accord, the OEM Catalytic Converter and installed a Catalytic delete pipe. Additionally, he installed on the Accord a non-approved add-on adapter/spacer. (The latter devices, when installed under the post Oxygen (02) sensor, prevent the in-dash Malfunction Indicator Light to illuminate.) The tampering performed by PR Meyers rendered the Accord in a condition that would result in failure of the vehicle by way of any properly performed smog check inspection. Then, PR Meyers took digital photographs of the catalytic delete pipe and the non-approved add-on adapter/spacer both when off the vehicle and when mounted upon the vehicle.

After tampering with the vehicle, PR Meyers performed three smog inspections of the Accord. The vehicle failed the visual portion of all three inspections because of the missing Catalytic Converter as well as the presence of the non-approved add on adapter/spacer under the 02 sensor. And, importantly, the vehicle failed the BAR-97 inspections due to excessive tail pipe emissions.

On April 28, 2016, PR Meyers released the Accord to a program representative who then assigned the vehicle for undercover operations.

UNDERCOVER OPERATION: MAY 18,2016

6. On May 18, 2016, Bureau Program Representative Gregory Bernes (PR Bernes) led an undercover operation pertaining to respondent's smog check technician practices at the smog check station premises known Autoport Car Repair Service.

At the outset of the investigation, PR Bernes examined and verified a Bureau undercover vehicle, namely the Accord, that had been placed under his control after that vehicle had been tampered with, or maladjusted, so that it would have failed any smog check inspection. In particular, the Accord lacked a Catalytic Converter (CAT) when PR Bernes took possession of the vehicle. In place of the CAT, PR Bernes confirmed that a non­approved CAT delete exhaust pipe (CAT delete pipe) and a non-approved add-on oxygen sensor adaptor (02 Sensor Adapter) had been installed at the site on the engine were the CAT is normally located. And, PK l:lernes verified that the manufacturer's underhood emissions control label was present. He observed that the label listed the CAT as a required emission component. He took digital photographs of the critical components before presenting the Accord to the undercover operative.

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On May 18, 2016, PR Bernes placed the Accord into the possession of undercover operative, Ms. Sara Mitry, who was tasked to travel to respondent's smog check station for the purpose of requesting that the Accord undergo a smog inspection. Within the hour of leaving a confidential location to begin the undercover operation, Ms. Mitry returned to meet PR Bernes at the same location.

That afternoon on the return of Ms. Mitry with the Accord to the Bureau's confidential location, PR Bernes re-inspected the Accord. The under hood emission control label, CAT delete pipe, and 0 2 Sensor Adapter remained in place as first observed by PR Bernes. He again took digital photographs of not only the critical components, but also the underhood emission control label. PR Bernes secured from Ms. Mitry respondent's invoice No. and a Vehicle Inspection Report received by the undercover operative from respondent's smog check station.

7. At the hearing of this matter, Ms. Mitry gave credible and persuasive testimony.

Among other things, Ms. Mitry established that before she took possession of the Accord, PR Bernes instructed her about the objectives of the undercover operation. And, PR Bernes showed Ms. Mitry a digital photograph of respondent.

Upon the undercover operative reaching the subject smog check station, respondent approached the Accord. Ms .. Mitry recognized respondent by the Bureau's photograph. Then Ms. Mitry presented respondent with a DMV Renewal Notice pertaining to the Accord. After respondent prepared a written estimate for the cost of the service document, he presented the document to Ms. Mitry and asked for her signature along with her printed name and address on the document. Ms. Mitry used a fictitious name and a fictitious address, and she completed the estimate document, and returned the completed document to respondent.

8. After Ms. Mitry returned the completed estimate document to respondent, he failed to give Ms. Mitry, in her capacity as a customer, a copy of the signed document.

9. In the view of Ms. Mitry, respondent performed a smog inspection of the Accord. Ms. Mitry paid $40 for the smog inspection. Respondent then presented Ms. Mitry with a copy of Invoice No. and the Vehicle Inspection Report (VIR) for the smog inspection.

The VIR, dated May 18, 2016, under the section captioned "Visual Inspection Report Information," set out a "result" of"Pass" for the "Inspection Category" of"Catalyst."

The information on the VTR, a~ made by respondent, constituted false or misleading information. And, respondent caused a certificate of completion to be issued even though the vehicle had been tampered with in a manner that rendered the vehicle unable to pass the visual portion of any correctly-executed smog check inspection.

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10. The Vehicle Inspection Report, which was signed by respondent and given to Ms. Mitry, includes the following text:

I certify, under penalty of perjury, under the laws of the State of California, that I performed the inspection in accordance with all (B]ureau requirements, and that the information listed on this vehicle inspection report is true and correct.

By signing the VIR after the supposed smog check inspection of the Accord, respondent made a false and misleading statement that constituted conduct showing dishonesty, fraud, or deceit.

11. Following the May 18, 2016, undercover operation that used the Accord at respondent's smog check station, the vehicle was retumed to the Documentation Lab, on June 1, 2016. On June 8, 2016, PR Meyers re-inspected the Accord. He performed three smog inspections on the vehicle. The Accord failed all inspections because of the missing Catalytic Converter and the non-approved add-on adapter/spacer installed under the post 0 2

sensor. And, the Accord failed the BAR-97 tests due to excessive tail pipe emissions. PR Meyers photographed the condition of the vehicle on June 8, 2016.

Causes For Discipline Due to Unlawful Acts by Respondent

FIRST CAUSE FOR DISCIPLINE: FALSE OR MISLEADING STATEMENTS

12. The VIR given to the undercover operative, Ms. Mitry, included false or misleading information. Respondent's act or omission violated the law, and in particular Business and Professions Code section 9884.7, subdivision (a)(3). Accordingly, the automotive repair dealer registration issued to respondent's licensed facility is subject to disciplinary action.

SECOND CAUSE FOR DISCIPLINE- FAILURE TO IMMEDIATELY PROVIDE PUTATIVE

CONSUMER WITH A COPY OF SIGNED DOCUMENT

13. When respondent failed to give Ms. Mitry, in her capacity as a customer, a copy of the signed estimate of cost of service document after she had signed the document and returned to respondent the document with a name and address, respondent's act or omission violated the law. In particular, respondent's act or omission violated Business and Professions Code section 9884.7, subdivision (a)(3). Accordingly, the automotive repair dealer registration issued to respondent's licensed facility is subject to disciplinary action.

THIRD CAUSE FOR DISCIPLINE - CONDUCT CONSTITUTING FRAUD

14. When respondent purported to complete a smog inspection of the Accord and then took $40 for the provision of a service that was not properly completed, respondent engaged in conduct constituting fraud and he violated the law. In particular, respondent's act

5

or omission violated Business and Professions Code section 9884.7, subdivision (a)(4). Accordingly, the automotive repair dealer registration issued to respondent's licensed facility is subject to disciplinary action.

FOURTH CAUSE FOR DISCIPLINE- DISHONESTY, FRAUD, OR DECEIT WHEREBY

ANOTHER PERSON IS INJURED AND/OR RESPONDENT BENEFITTED

15. When respondent purported to complete a smog inspection of the Accord vehicle and then took $40 for the provision of a service that was not properly completed, respondent engaged in dishonesty, fraud, or deceit whereby another person was injured, in that the putative consumer lost $40 for a smog inspection that was not properly performed. And respondent and the smog check station benefited by the fraud in that he took $40 without exerting himself to competently inspect the Accord's underside to visually detect that the CAT was missing and had been replaced with non-approved component parts. His acts or omissions violated the law. In particular, respondent's acts or omissions violated Health and Safety Code section 44072.2, subdivision (d), and/or section 44072.11, subdivision (b). Accordingly, the smog check station license issued to respondent's licensed facility is subject to disciplinary action.

FIFTH CAUSE FOR DISCIPLINE- MISLEADING INFORMATION ON DOCUMENT

16. Respondent presented the Bureau's undercover Operative with a Vehicle Inspection Report that contained misleading information as set ciut in Factual Findings 9 and 10, above. By the false and misleading document, respondent caused the licensed smog check station to insert or withhold information on the document that was required to be maintained. Respondent's act or omission violated the law. In particular, respondent's act or omission violated Health and Safety Code section 44072.2, subdivision (c), as it interacts with California Code of Regulations, title 16, and section 3373. The information for inclusion on the VIR is required by California Code of Regulations, title 16, section 3340.15, subdivision (e). Accordingly, the smog check station license issued to respondent's licensed facility is subject to disciplinary action.

SIXTH CAUSE FOR DISCIPLINE- ISSUANCE OF CERTIFICATE TO TAMPERED VEHICLE

17. Respondent issued a certificate of compliance for the Accord, which was driven by the undercover operative to the smog check station. The vehicle lacked a CAT, which was removed in conjunction with the preparation for undercover operations. The Accord was a vehicle that could not pass a smog check inspection. Respondent's act or omission violated the law when the certificate of compliance was issued for the Accord. In particular, respondent's act or omission violated Health and Safety Code section 44072.2, snhclivision (h), ~s that provision intemcts with section 44015, subdivision (a )(1). Accordingly, the smog check station license issued to respondent's licensed facility is subject to disciplinary action.

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SEVENTH CAUSE FOR DISCIPLINE- PERFORMING TEST OTHER THAN IN ACCORDANCE WITH REQUIRED PROCEDURES SPECIFIED IN THE SMOG CHECK MANUAL

18. The smog check inspection performed by respondent on the Accord constituted testing of the vehicle in a manner other than in accordance with the procedures mandated by the Bureau through its Smog Check Manual. Respondent's act or omission violated the law. In particular, respondent's act or omission violated Health and Safety Code sections 44072.2, subdivision (h), and 44012, subdivision (f). The acts further violated Health and Safety Code sections 44072.2, subdivision (c), as that statutory provision interacts with California Code of Regulations, title 16, section 3340.5. Accordingly, the smog check station license issued to respondent's licensed facility is subject to disciplinary action.

EIGHTH CAUSE FOR DISCIPLINE- ISSUING CERTIFICATE TO IMPROPERLY-TESTED VEHICLE

19. Respondent issued a certificate of compliance to the undercover operative, acting in the capacity of a customer, whose vehicle had not been tested in accordance with the procedures mandated by the Bureau in its Smog Check Manual. Respondent's act or omission violated the law. In particular, respondent's act or omission violated H.ealth and Safety Code sections 44072.2, subdivision (c), as that statutory section interacts with California Code of Regulations, title 16, sections 3340.35, subdivision (b), 3340.42, and 3340.45.

NINTH CAUSE FOR DISCIPLINE- DISHONESTY, FRAUD, OR DECEIT WHEREBY ANOTHER PERSON IS INJURED OR RESPONDENT BENEFITED.

20. When respondent purported to complete a smog inspection of the Accord and then look $40 for the provision of a service that was not properly completed, respondent engaged in dishonesty, fraud or deceit whereby another person was injured, in that the putative consumer lost $40 for a smog inspection that was not properly performed. And respondent benefited by the dishonesty, fraud, or deceit in that he took $40 without exerting himself to competently inspect the Accord's underside to visually detect that the CAT was missing and had been replaced with non-approved component parts. His acts or omissions violated the law. In particular, respondent's acts or omissions violated Health and Safety Code section 44072.11 subdivision (b) and section44072.2, subdivision (d), or section 44072.2, subdivision (d). Accordingly, the smog check inspector license and smog check repair technician license issued to respondent is subject to disciplinary action.

TENTH CAUSE FOR DISCIPLINE- MISLEADING INFORMATION ON DOCUMENT

21. Respondent presented the Bureau's undercover operative with a Vehicle Inspection Report that contained misleading information as set out in Factual Findings 9 and 10, above. By the false and misleading document, respondent inserted or withheld information on the document that was required to be maintained. Respondent's act or

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omission violated the law. In particular, respondent's act or omission violated Health and Safety Code section 44072.2, subdivision (c), as it interacts with California Code of Regulations, title 16, section 3373. The information necessary for inclusion on the VIR is required by California Code of Regulations, title 16, section 3340.15, subdivision (e). Accordingly, the smog check inspector license and smog check repair technician license issued to respondent is subject to disciplinary action.

ELEVENTH CAUSE FOR DISCIPLINE -PERFORMING TEST OTHER THAN IN ACCORDANCE

WITH REQUIRED PROCEDURES SPECIFIED IN THE SMOG CHECK MANUAL

22. The smog check inspection performed by respondent on the Accord constituted testing of the vehicle in a manner other than in accordance with the procedures mandated by the Bureau through its Smog Check Manual. Respondent's act or omission violated the law. In particular, respondent's act or omission violated Health and Safety Code sections 44072.2, subdivision (h), 44032, 44012, and 44012, subdivision (t). The acts further violated Health and Safety Code sections 44072.2, subdivision (c), as that statutory provision interacts with California Code of Regulations, title 16, sections 3340.30, subdivision (a), and 3340.5. Accordingly, the smog check inspector license and smog check repair technician license issued to respondent is subject to disciplinary action.

Matters in Aggravation

23. Effective August 19, 2014, the Decision in Case No. 77/14-18 (OAH No. 2013120734) was issued in a prior disciplinary action against respondent titled In the Matter of the Accusation Against Kumbawa R. Oh, Owner d.b.a. Autoport Car Repair Service and Kumbawa Ruu Oh, for which the Department of Consumer Affairs, on behalf of the Bureau, issued an Order imposing discipline against the registration and licenses held by respondent as follows:

o Revocation of Lamp Station License No. LS 241395, Class A, issued to respondent;

o Revocation of Brake Station License No. BS 241395, Class A, issued to respondent;

o Revocation of Lamp Adjuster License No. LA 24793, Class A, issued to respondent;

o Revocation of Brake Adjuster License No. BA 24793, Class A, issued to respondent;

o Stay of Permanent Invalidation, with probation for a two-year period under terms and conditions for the Automotive Repair Dealer Registration No. 241395, issued to respondent;

8

o Stay of Revocation, with probation for a two-year period under terms and conditions for the Smog Check Station License No. TC 241395, issued to respondent;

o Stay of Revocation, with probation for a two-year period under terms and conditions for the Advanced Emission Specialist Technician License No. EA 24793.

The Decision in Case No. 77/14-18 was grounded upon respondent's acts of dishonesty, fraud, and deceit as revealed through three distinct undercover operations (October 11, 2012, December 19, 2012, and February 13, 2013). In those undercover operations, respondent failed to remove wheels when he supposedly performed brake inspections for three different vehicles. Respondent violated the law when he falsely certified that three different undercover vehicles were certified as having been thoroughly inspected so as to be safe for operation; when, in fact, the vehicles had not been inspected and were not safe to operate on public roadways.

Under the Decision's Order, respondent was ordered to pay the Bureau, through the department, the costs of investigation and prosecution in the amount of $22,091.04.

Costs of Investigation and Prosecution

24. Program Manager II William D. Thomas, of the Enforcement Operations Branch for the Bureau, certified that as of January 26, 2017, certified that costs were incurred in connection with the preparation of undercover vehicles, which were used in the agency's action that led to the Accusation against respondent:

I. COSTS OF COMPLAINANT'S INVESTIGATIVE SERVICES:

Bureau Personnel Fiscal Year Hours Rate/HR Cost

Program Representative I 2015/16 47 $70.30 $3,304.10

Program Representative I 2016/17 15 $73.66 $1,104.90

Program ReQresentative II 2016/17 _5_ $78.71 $393.55 Total Cost for Investigation Operations $4,802.55

II. COSTS OF PROSECUTION SERVICES:

Deputy Attorney General13rett A. Kingsbury certified, on May 17, 2017, that the costs of prosecution by the Department of Justice on behalf of the Bureau were incurred regarding the Accusation against respondent as follows:

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Department of Justice

Deputy Attorneys General Fiscal Years Hours Rate$ Cost$

All deputies 2016/17 19.00 $170 $3,230 DAG Kingsbury 2017 2.00 $170 $340

Paralegal Barraza 2016 2.5 $120 $300

Total prosecution costs $3,870

25. The total costs of investigation and prosecution in this matter are $8,672.55. Those are the costs actually and necessarily incurred investigating and prosecuting this matter. The hearing of this matter pertained to comprehensive analysis, which included extensive work by a program representative. Also, there were program representatives who provided billable services regarding the preparation of the undercover vehicle and the assembling and studying respondent's fraudulent and unlawful records. And, lawyers with the Department of Justice expended valuable time and resources in the prosecution of this matter. The costs are, therefore, reasonable.

26. Due to respondent's default and resultant failure to appear for the hearing, respondent Oh did not advance any meritorious defense in the exercise of his right to a hearing in this matter. Also, respondent cannot be seen, under the facts set out above, to have committed slight or inconsequential misconduct in the context of the Accusation.

The immediate foregoing factors do not indicate that the imposition upon respondent of the full costs of investigation and prosecution will unfairly penalize respondent. And, a substantial basis does not exist to warrant a reduction of the assessment against respondent for the costs of investigation and prosecution as incurred by complainant. The costs, therefore, are appropriate.

27. Accordingly, as of the date of the hearing, the reasonable and appropriate costs owed by respondent to the department, on behalf of the Bureau, is $8,672.55.

LEGAL CONCLUSIONS

Standard of Proof

1. "Preponderance ofthe evidence" is the standard of proof to be applied as to facts in rlispnte nnder the Accus8tion from which disciplinary action may result against the registration and license held by respondent. (Imports Performance v. Department of Consumer Affair.;~ Bureau of Alltomotive Repairs (2011) 201 Cal.App.4th 911, 916-918.)

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The Factual Findings and Order, herein, rest upon a preponderance of evidence that establishes respondent's unprofessional and unlawful acts and omissions in the matters recorded herein.

Jurisdiction to Proceed Despite Expiration of License

2. Business and Professions Code section 118, subdivision (b), establishes that the expiration, surrender or cancellation of a license shall not deprive the Bureau or the Director of jurisdiction to proceed with a disciplinary action during the period within which the license may be renewed, restored, reissued or reinstated.

Causes for Discipline

AUTO PORT CAR REPAIR SERVICE WITH KUMBAWA RUU OWNER, OWNER

FALSE OR MISLEADING STATEMENTS (Jst CAUSE)

3. Business and Professions Code section 9884.7, subdivision (a)(l), states:

(a) The director, where the automotive repair dealer cannot show there was a bona fide error, ... may invalidate temporarily or permanently, the registration of an automotive repair dealer for any of the following acts or omissions related to the conduct of the business of the automotive repair dealer, which are done by the automotive repair dealer or any automotive technician, employee, partner, officer, or member of the automotive repair dealer.

(1) Making or authorizing in any manner or by any means whatever any statement written or oral which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.

4. Cause exists for discipline of the automotive repair dealer registration of respondent, doing business as Autoport Car Repair Service, under Business and Professions Code section 9884.7, subdivision (a)(l), by reason of the matters set forth in Factual Findings 9, 10, and 12, along with and Legal Conclusion 3.

FAILURE TO IMMEDIATELY PROVIDE COPY OF SIGNED DOCUMENT

(2nd CAUSE)

5. Business and Professions Code section 9884.7, subdivision (a)(3), provides:

(a) The director, where the automotive repair dealer cannot show there was a bona fide error, ... may invalidate temporarily

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or permanently, the registration of an automotive repair dealer for any of the following acts or omissions related to the conduct of the business of the automotive repair dealer, which are done by the automotive repair dealer or any automotive technician, employee, partner, officer, or member of the automotive repair dealer.

[~] ... [~]

(3) Failing or refusing to give to a customer a copy of any document requiring his or her signature, as soon as the customer signs the document

6. Cause exists for discipline of the automotive repair dealer registration of respondent, doing business as Autoport Car Repair Service, under Business and Professions Code section 9884.7, subdivision (a)(3), by reason of the matters set forth in Factual Findings 8 and 13, along with Legal Conclusion 5.

CONDUCTCONS11TUTJNG FRAUD (3RD CAUSE)

7. Business and Professions Code section 9884.7, subdivision (a)(4), sets forth

(a) The director, where the automotive repair dealer cannot show there was a bona fide error, ... may invalidate temporarily or permanently, the registration of an automotive repair dealer for any of the following acts or omissions related to the conduct of the business of the automotive repair dealer, which are done by the automotive repair dealer or any automotive technician, employee, partner, officer, or member of the automotive repair dealer.

[~] ... [~]

( 4) Any other conduct that constitutes fraud.

8. Cause exists for discipline of the automotive repair dealer registration of respondent, doing business as Autoport Car Repair Service, under Business and Professions Code section 9884.7, subdivision (a)(4), by reason of the matters set forth in Factual Findings 9, 10, and 14, along with Legal Conclusion 7.

fi"RA rm WHFRERY ANrJTHFR PF:RSON fS !NTURED AND/OR RESPONDENT

BENEFITTED (4TH CAUSE)

9. Health and Safety Code section 44072.2, subdivision (d), provides that "[t]he director may suspend, revoke, or take other disciplinary action against a license as provided

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in this article if the licensee, or any partner, officer, or director thereof, does any of the following: ['ll] .... ['ll] (d) Commits any act involving dishonesty, fraud, or deceit whereby another is injured."

Health and Safety Code section 44072.11, subdivision (b), states that:

Any smog check station or technician's license granted by the department is a privilege and not a vested right, and may be revoked or suspended by the department for any of the reasons specified in Section 44072.1 or on evidence that the station or technician is not in compliance with any of the requirements of subdivision (a).

Health and Safety Code section 44072.1, subdivision (d), states that, "[t]he director may deny a license if the applicant, or any partner, officer, or director thereof, does any of the following: ['ll] .... ['ll] (d) [h ]as committed any act involving dishonesty, fraud, or deceit whereby another is injured or whereby the applicant has benefited."

10. Cause exists for discipline of the smog check station license of respondent, doing business as Autoport Car Repair Service, under Health and Safety Code section 44072.2, subdivision (d), and/or section 44072.11, subdivision (b), as that statutory section interacts with section 44072.1, subdivision (d), by reason of the matters set forth in Factual Findings 9, 10, and 15, along with Legal Conclusion 9.

MISLEADING iNFORMATION ON DOCUMENT (5TH CAUSE)

11. Health and Safety Code section 44072.2, subdivision (c), provides that, ''[t]hc director may suspend, revoke, or take other disciplinary action against a license as provided in this article if the licensee ... ['ll] .... ['ll] Violates any of the regulations adopted by the director pursuant to this chapter."

California Code of Regulations, title 16, section 3373, sets forth:

No automotive repair dealer or individnal in charge shall, in filling out an estimate, invoice, or work order, or record required to be maintained by section 3340.15(e) of this chapter, withhold therefrom or insert therein any statement or information which will cause any such document to be false or misleading, or where the tendency or effect thereby would be to mislead or deceive customers, prospective customers, or the public.

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California Code of Regulations, title 16, section 3340.15, subdivision (e), provides:

(f) The station shall make, keep secure, and have available for inspection on request of the bureau, or its representative, legible records showing the station's transactions as a licensee for a period of not less than three years after completion of any transaction to which the records refer. All records shall be open for reasonable inspection and/or reproduction by the bureau or its representative. Station records required to be maintained shall include copies of:

(1) All certificates of compliance and certificates of noncompliance in stock and/or issued,

(2) Repair orders relating to the inspection and repair activities, and

(3) Vehicle inspection reports generated either manually or by the emissions inspection system.

The above listed station records shall be maintained in such a manner that the records for each transaction are kept together, so as to facilitate access to those records by the bureau or its representative. In this regard, the second copy of an issued certificate shall be attached to the final invoice record.

12. Cause exists for discipline of the smog check station license of respondent, doing business as Auto port Car Repair Service, under Health and Safety Code section 44072.2, subdivision (c), as that statutory section interacts with California Code of Regulations, title 16, section 3373 as respondent inserted or withheld a statement or information on a document required to be maintained by California Code of Regulations, title 16, section 3340.15, subdivision (e), by reason of the matter set out in Factual Findings 9, 10, and 16, along with Legal Conclusion 11.

iSSUANCE OF CER11FICATE TO T4MPERED VEHICLE (6TH CAUSE)

13. Health and Safety Code section 44072.2, subdivision (h), provides that "[t)he 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: [II] .... [II] Violates or attempts to violate the provisions of this chapter relating to the partienlar aetivity for which he or she is licensed."

Health and Safety Code section 44015, subdivision (a)(l), states that, "[a]licensed smog check station shall not issue a certificate of compliance, except as authorized by this chapter, to any vehicle ... that has been tampered with."

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14. Cause exists for discipline of the smog check station license of respondent, doing business as Autoport Car Repair Service, under Health and Safety Code section 44072.2, subdivision (h), as that statutory section interacts section 44015, subdivision (a)(1), by reason of the matters set out in Factual Findings 5, 9, 10, and 17, along with Legal Conclusion 13.

PERFORMING TEST OTHER THAN IN ACCORDANCE WITH REQUIRED PROCEDURE/

SMOG CHECK MANUAL (7T!I CAUSE)

15. Health and Safety Code section 44072.2, subdivision (h), states that, "[t]he 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 ... [v]iolates or attempts to violate the provisions of this chapter relating to the particular activity for which he ... is licensed."

Health and Safety Code section 44012 states:

The test at the smog check stations shall be performed in accordance with procedures prescribed by the department and may require loaded mode dynamometer testing in enhanced areas, two-speed idle testing, testing utilizing a vehicle's on board diagnostic system, or other appropriate test procedures as determined by the department in consultation with the state board. The department shall implement testing using onboard diagnostic systems, in lieu of loaded mode dynamometer or two-speed idle testing, on model year 2000 and newer vehicles only, beginning no earlier than January 1, 2013. However, the department, in consultation with the state hoard, may prescribe alternative test procedures that include loaded mode dynamometer or two-speed idle testing for vehicles with onboard diagnostic systems that the department and the state board determine exhibit operational problems. The department shall ensure, as appropriate to the test method, the following:

Health and Safety Code section 44012, subdivision (f), provides:

.A visual or functional check is made of emission control devices specified by the department, including the catalytic converter in those instances in which the department determines it to be necessary to meet the findings of Section 44001. The visual or functional check shall be performed in accordance with procednres prescribed by the department.

15

Health and Safety Code section 44012, subdivision (1), sets forth:

A visual or functional check is made of emission control devices specified by the department, including the catalytic converter in those instances in which the department determines it to be necessary to meet the findings of Section 44001. The visual or functional check shall be performed in accordance with procedures prescribed by the department.

Health and Safety Code section 44072.2, subdivision (c), states that "(t]he 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 [~] ... [~] Violates any of the regulations adopted by the director pursuant to this chapter."

California Code of Regulations, title 16, section 3340.35, subdivision (b), states, "[a J licensed station shall not sell or otherwise transfer unused certificates to another licensed station, to a new owner of the business, or to any person other than a customer whose vehicle has been inspected in accordance with the procedures specified in section 3340.42 of this article."

California Code of Regulations, title 16, section 3340.42 is the Bureau's regulations pertaining to mandatory smog check inspection and test procedures, and emissions standards.

California Code of Regulations, title 16, section 3340.45, states:

(a) All Smog Check inspections shall be performed in accordance with requirements and procedures prescribed in the following:

(1) Smog Check Inspection Procedures Manual, dated August 2009, which is hereby incorporated by reference. This manual shall be in effect until subparagraph (2) is implemented.

(2) Smog Check Manual, dated 2013, which is hereby incorporated by reference. This manual shall become effective on or after January 1, 2013.

16. Cause exists for discipline of the smog check station license of respondent, doing business as Autoport Car Repair Service, under Health and Safety Code sections 44072.2, subdivision (h), 44012, 44012, subdivision (1), and section 44072.2, subdivision (c), as thnt latt0r statutory section inte.riicls with California Code of Regulations, title 16, section 3340.45, by reason of the matters set out in Factual Findings 9, 10, and 18, along with Legal Conclusion 15.

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ISSUING CERTIFICATE TO IAfPROPERLY-TESTED VEl!ICLE (8TH CAUSE)

17. Cause exists for discipline of the smog check station license of respondent, doing business as Auto port Car Repair Service, under Health and Safety Code 44072.2, subdivision (c), as that statutory provision interacts with California Code of Regulations, title 16, sections 3340.35, subdivision (b), 3340.42, and 3340.45, by reason of the matter set out in Factual Findings 9, 10, and 19.

FRAUD WHEREBY ANOTHER PERSON IS INJURED AND/OR RESPONDENT

BENEFITTED (9TH CAUSE)

18. Cause exists for discipline of the smog check inspector license and smog check repair technician license of respondent, under Health and Safety Code sections 44072.11, subdivision (b), and 44072.1, subdivision (d), and/or Health and Safety Code section 44072.2, subdivision (d), by reason of the matter set out in Factual Findings 9, 10, and 20.

MISLEADING INFORMATION ON DOCUMENT (10TH CAUSE)

19. Cause exists for discipline of the smog check inspector license and smog check repair technician license of respondent, under Health and Safety Code section 44072.2, subdivision (c), as that statute interas;ts with California Code of Regulations, title 16, sections 3373, as respondent inserted or withheld a statement or information on a document required to be maintained by California Code of Regulations, title 16, section 3340.15, subdivision (e), by reason of the matter set out in Factual Findings 9, 10, and 21.

PERFORMING TEST OTHER THAN IN ACCORDANCE WITH REQUIRED PROCEDURES

(11TH CAUSE)

20. Cause exists for discipline of the smog check inspector license and smog check repair technician license of respondent, under Health and Safety Code sections 44072.2, subdivision (h), 44032, 44012, and 44012, subdivision (f), by reason of the matters set out in Factual Findings 9, 10, and 22.

Respondent's Failure to Appear for Administrative Adjudication Hearing

21. Because respondent Kumbawa Ruu Oh, doing business as Autoport Car Repair Service, failed to appear at the hearing of this matter on the day set aside for presentation of a defense contesting the Accusation, no evidence in mitigation or rehabilitation is available. Hence, no basis exists to consider respondent's~rehabilitation following the unlawful, fraudulent and deceitful acts, omissions, and behavior committed by respondent on May 113, 2016.

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Recovery of Costs of Prosecution

22. Complainant has requested that respondent be ordered to pay the Department the costs of prosecution as incurred by the Bureau.

Code section 125.3 prescribes that a "licentiate found to have committed a violation or violations of the licensing act" may be directed "to pay a sum not to exceed the reasonable costs of the investigatioh and enforcement of the case."

The California Supreme Court's reasoning on the obligation of a licensing agency to fairly and conscientiously impose costs in administrative adjudication as articulated in Zuckerman v. State Board of Chiropractic Examiners (2002) 29 Ca1.4th 32, 45-46, is persuasive and should be considered in this matter. Scrutiny of certain factors, which pertain to the Bureau's chief executive's exercise of discretion to analyze or examine factors that might mitigate or reduce costs of investigation and prosecution upon a licensee found to have engaged in unprofessional conduct, are set forth in Factual Finding 26.

23. The reasonable costs of investigation and prosecution as set forth in Factual

Findings 24, 25, and 27 are in an aggregate amount of $8,672.55.

Effect of Failure to Appear for Administrative Adjudication Hearing by Respondent Oh

24. Because respondent failed to appear at the hearing of this matter on the day set aside for presentation of the defense to the Accusation's charges against him, no evidence in mitigation or rehabilitation is available. Hence, no basis exists to consider respondent Oh's rehabilitation following the unlawful, fraudulent and deceitful acts, omissions, and behavior committed by respondent on May 18, 2016.

Other Determination as to Respondent OH

25. Under Health and Safety Code section 44072.8, if the licenses and registration as issued to Kumbawa Ruu Oh, are revoked or suspended, any additional license issued under this chapter in the name of Kumbawa Ruu Oh may be likewise revoked or suspended by the director.

Ultimate Determinations Regarding Respondent Oh

26. The overwhelming evidence presented at the hearing demonstrates thl)t respondent has violated each of the causes for discipline listed against him in the Accusation. The facts of the case, which are uncontroverted, prove that respondent engaged in multiple ~cis of dishonesty, frAncl, and deceit as it pertains to the slate mandated smog check program. First, respondent failed to professionally and competently perform a smog check inspection of an undercover vehicle presented to him for a smog check inspection. Second, respondent has a history of performing acts of dishonesty, fraud, or deceit during 2012 and 2013, when he performed grossly unprofessional brake inspections. Hence, respondent has been shown

18

to have a pattern and practice of deliberate fraud, dishonesty, and deceit as revealed through a recent detailed, comprehensive undercover operation.

There can be little doubt that respondent is subject to discipline and the only level of discipline that will adequately protect the public is revocation, or permanent invalidation, of all licenses held by respondent. This level of discipline is well within the Bureau's guidelines.

ORDER

1. Automotive Repair Dealer Registration Number ARD 241395 issued to Kumbawa R. Oh, owner and doing business as Autoport Car Repair Service, is permanently invalidated, by reason of Legal Conclusions 4, 6 and 8.

2. Smog Check Test Only Station License Number RC 241395 issued to respondent Kumbawa R. Oh, owner and doing business as Autoport Car Repair Service, is revoked, by reason of Legal Conclusions 10, 12, 14, and 16.

3. Smog Check Inspector License Number EO 24793 and Smog Check Repair Technician License Number EI 24793 issued to Kumbawa Ruu Oh is revoked, by reason of Legal Conclusions 18, 19, and 20.

4. Any and all other automobile repair dealer registrations, or other licenses issued by the Bureau, for all places of business operated in this state or whose financial or management interests are held in this state by Kumbawa Ruu Oh, are permanently invalidated and revoked, by reason of Legal Conclusion 25.

5. Within 30 days of the effective date of this decision Kumbawa Ruu Oh shall pay the Director, Department of Consumer Affairs, on behalf of the Bureau of Automotive Repairs, the reasonable and appropriate costs of investigation and prosecution in an amount of $8,672.55, by reason of Legal Conclusions 22 and 23.

DATED: June 22, 2017

~~:::· cv

28DB5AD99FE7453 ...

PERRY 0. JOHNSON 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 BREIT A. KINGSBURY Deputy Attorney General State Bar No. 243744

455 Golden Gate Avenue, Suite II 000 San Francisco, CA 94102-7004 Telephone: ( 415) 703-1 l 92 Facsimile: (415) 703-5480

Attorneys for Complainant

BEFOIH<2 THE DEPARTMENT OF CONSUMER AFFAIRS

FOR THE BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

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In the Matter of the Accusation Against:

KUMBAWAR OH- OWNER, D.B.A. AUTOI'ORT CAR J{El'AIR SERVICE 39(Jl San Leandro Street Oakland, CA 9460 I Automotive Repair Dealer Registration No. ARD 241395 Smog Check Station License No. RC 241395,

and,

KUMBA W A RUU OH 390 l San Leandro St. Oakland, CA 94601 Smog Check Inspector License No. EO 24793 Smog Check Repair Technician License No. EI 24793,

Respondents.

22 11----------------'

23 Complainant alleges:

Case No. 1<1 \\.a '·' I

ACCUSATION

24 PARTIES

25 I. Patrick Dorais (Complainant) brings this Accusation solely in his official capacity as

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

27 Ill

28 Ill

1------------ . ·---··--· (KUMBA WA OH; AUTO PORT CAR REPAIR) ACCUSATION

I

2

LICENSE INFORMATION

Automotive Repair Dealer Registration No. AIID 241395

3 2. On or about September 15, 2005, the Director of Consumer Aflairs (Director) issued

4 Automotive Repair Dealer Registration No. ARD 241395 to Kumbawa R. Oh" Owner, d.b.a.

5 Autoport Car Repair Service (Respondent Shop). Tho automotive repair dealer registration will

6 expire on September 30, 2017, unless renewed.

7 Smog Check Station License No. RC 241395

8 3. On or about December 1, 2008, the Director issued Smog Check Station License No.

9 RC 241395 to Respondent Shop. The Smog Check Station License will expire on September 30,

10 2017, unless renewed.

11 Smog Check Inspector License No. EO 24793/ Smog Check Repair Technician License No.

12 El 24793

13 4. In 2008, the Director issued Advanced Emissions Specialist Technician License No.

14 EA 24793 to Kumbawa Ruu Oh (Respondent Oh). Pursuant to California Code of Regulations,

15 title 16, section 3340.28(e),1 effective January.?, 2014, said license was renewed pursuant to

16 Respondent Oh's election as Smog Check Inspector License No. EO 24793 and Smog Check

17 Repair Technician License No. EI 24793. Respondent Oh's smog check inspector license and

18 smog check repair technician license will expire on January 31, 2018, unless renewed.

19 ,JURISDICTION

20 5. Business and Professions Code (Bus. & Prof. Code) section 9884.7 provides that the

21 Director may revoke an automotive repair dealer registration.

22 6. Bus. & Prof. Code section 9884.13 provides, in pertinent part, that the expiration of a

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

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

invalidating (suspending or revoking) a registration.

1 Effective August I, 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 technician (EB) license to smog check inspector (EO) license and/or· smog check repair technician (EI) license.

2

1 7. Section' 44002 of the Health and Safety Code provides, in pertinent part, that the

2 Director has all the powers and authority granted under the Automotive Repair Act for enforcing

3 the Motor Vehicle Inspection Program.

4 8. Section 44072 ofthe Health and Safety Code provides, in pertinent part, that the

5 Director may suspend or revoke any license issued under Chapter 5 of Part 5 of Division 26 of the

6 Health and Safety Code.

7 9. Section 44072.6 of the Health and Safety Code provides, in pertinent part, that the

8 expiration or suspension of a license by operation of law, or by order or decision of the Director

9 of Consumer Affairs, or a court of law, or the voluntary surrender of the license shall not deprive

10 the Director of jurisdiction to proceed with disciplinary action.

II 10. California Code of Regulations, title 16, section 3340.28(e) states that "(u]pon

12 renewal of an unexpired Basic Area Technician license or an Advanced Emission Specialist

13 Technician license issued prior to the effective date of this regulation, the licensee may apply to

14 renew as a Smog Check Inspector, Smog Check Repair Technician, or both."

15 STATUTORY ANJ) REGULATORY PROVISIONS

16 11. Bus. & Prof. Code section 22, states:

17 '"Board,' as used in any provision of this code, refers to the board in which the

18 administration of the provision is vested, ami Ull!ess otherwise expressly provided, shall include

19 'bureau,' 'commission,' 'committee,' 'department,' 'division,' 'examining committee,''program,' and

20 'agency.'" ~

21 12. Bus. & Prof. Code section 477(b) states in pertinent part that a "license" includes

22 "registration" and "certificate."

23 13. Bus. & Prof. Code section 9884.7 states, in pertinent part:

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

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

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

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

28 technician, employee, partner, officer, or member of the automntive repair dealer.

(KUMBAWA OH; Al!TOPORT CAR REPAIR) ACCUSATION

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

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

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

"

"(3) Failing or refusing to give a customer a copy of any document requiring his or

her signature, as soon as the customer signs the document.

"( 4) Any other conduct that constitutes fraud.

" 9 14. Section 44012 of the Health and Safety Code states:

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"The test at the smog check stations shall be perfonned in accordance with procedures

prescribed by the department ....

" "(f) .... The visual Ol' functional check shall be performed in accordance with procedures

prescribed by the department.

"

16 15. Section 44015 of the Health and Safety Code states:

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"(a) A licensed smog check station shall not issu~ a c~rtiflcate of compliance, except as

authorized by this chapter, to any vehicle that meets the following criteria:

"(I) A vehicle that has been tampered with.

" 21 16. Section 44032 of the Health and Saft'lty Code states:

22 "No person shall perform, for compensation, tests or r~pairs of emission control devices or

23 systems of motor vehicles required by this chapter unless the person perfonning the test or repair

24 is a qualified smog check technidan and the test or repair is performed at a licensed smog check

25 station. Qualified technicians shall perform tests of emission control devices and systems in

26 accordance with Section 44012."

27 Ill

28 Ill

4 (KUMBAWA 011; AlJTOl'ORT' CAR REPAJR) ACCUSATION

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17, Section 44072.1 of the Health and Safety Code states, in pertinent part:

"The director may deny a license if the applicant, or any partner, officer, or director thereof,

does any of the tbllowing:

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"(d) Has committed any act involving dishonesty, fraud, or deceit whereby another is

injured or whereby the applicant has benefited.

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8 18. Section 44072.2 of the Health and Safety Code states, in pertinent part:

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

provided in this art'icle 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.

" "(h) Violates or attempts to violate the provisions ofthis chapter relating to the particular

activity for which he or she is licensed."

20 19. Section 44072.8 of the Health and Safety Code states:

21 "When a lic.ense has been revoked or suspended following a hearing under this article, any

22 additional license issued under this chapter in the name of the licensee may be likewise revoked

23 or suspended by the director."

24 20. Section 44072.11 (b) of the Health and Safety Code states, in pertinent part:

25 "Any smog check station or technician's license granted by the department is a privilege and

26 not a vested right, and may be revoked or suspended by the department for any of the reasons

27 specified in Section 44072.1 . , . , "

28 Ill

5 (KUMBA WA OH; AUTOPORT CAR REPAIR) ACCUSATION

21. California Code of Regulations, title 16, section 3340.15(e), provides in pertinent

2 part:

3 "The station shall make, keep secure, and have available for inspection on request of the

4 bureau, or its representative, legible records showing the station's transacti(ms as a licensee for a

5 period of not less than three years after completion of any transaction to which the records refor.

6 All records shall be open for reasonable inspection and/or reproduction by the bureau or its

7 representative. Station records required to be maintained shall include copies of:

8 "(!)All certificates of compliance and certificates of noncompliance in stock and/or issued,

9 "(2) Repair orders relating to the inspection and repair activities, and

10 "(3) Vehicle inspection reports generated either manually or by the emissions inspection

11 system.

12 "The above listed station records shall be maintained in such a manner that the records for

13 each transaction are kept together, so as to facilitate access to those records by the bureau or its

14 representative. In this regard, the second copy ofan issued certificate shall be attached to the final

15 invoice record."

16 22. California Code of Regulations, title 16, section 3340.:i0, provides in pertinent part:

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"A licensed smog check inspector and/or repair technician shall comply with the following

requirement~ at all times while licensed:

"(a) Inspect, test an\1 repair vehicles .• as applicable, in accordance with section 44012 of the

Healtb and Safety Code, section 44035 ofthc Health and Safety Code, and section 3340.42 of this

article.

" 23 23. California Code of Regulations, title 16, section 334035(b), provides in pertinent

24 part:

.25 "A licensed station shall I)Ot sell or otherwise transfer unused certificates to another licensed'

26 station, to a new owner of the business, or to any person other than a custom or whose vehicle has

27 been inspected in accordance with the procedures specified in section 3340.42 of this article."

28 Ill

(KUMBAWA OH; AUTOPORT CAR REPAIR) ACCUSATION

1 24. California Code of Regulations, title 16, section 3340.42, provides in pertinent part:

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"Smog check inspection methods are prescribed in the Smog Check Manual, referenced by

section 3340.45.

" 5 25. California Code of Regulations, title 16, section 3340.45, provides in pertinent part:

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

7 procedures prescribed in the tb!Jowing:

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

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

10 "(2) Smog Check Manual, dated 2013, which is hereby incorporated by reference. This

11 manual shall become effective on or after January 1, 2013."

12 26, California Code of Regulation~, title 16, section 3373, provides:

13 "No automotive repair dealer or individual in charge shall, in filling out an estimate,

14 invoice, or work order, or record required to be maintained by section 3340.1 5(e) of this chapter,

15 withhold therelrom or insert therein any statement or information which will cause any such

16 document to be false or misleading, or where the tendency or e11'ect thereby would be to mislead

17 or deceive customers, prospective customers, or the public,"

18 COSTS

19 27. Bus. & Prof. Code section 125,3 provides, in pertinent part, that the Bureau may

20 request the administrative law judge to direct a licentiate found to have committed a violation or

21 violations of the licensing act to pay a sum not to exceed the reasonable costs of the investigation

22 and enforcement of the case.

23 Ill

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(KUMBAWA 011; AUTOI'ORT CAR REPAIR) ACCUSATION

J)JSCIJ'LINE IN CASE NO. 77/14-18.

2 28. In a prior disciplinary action entitled In the Matter of the Accusation Against

3 Kwnbawa R. Oh, Owner d. b. a. Autoporl Car Repair Service and Kumbawa Ruu Oh, Case No.

4 77/14·18, the Bureau issued an order imposing discipline against Respondent Shop and

5 Respondent Oh. Specifically, the Bureau:

6 • Revoked Lamp Station License No. LS 241395, Class A, issued to Respondent Shop;

7 • Revoked Brake Station License No. BS 241395, Class C, issued to Respondent Shop;

8 • Revoked Lamp Adjuster License No. LA 24793, Class A, issued to Respondent Oh;

9 • Revoked Brake Adjuster License No. BA 24 793, Class C, issued to Respondent Oh;

10 • Placed Automotive Repair Dealer Registration No. ARD 241395, issued to

II Respondent Shop, on 2-years probation with certain tcnns and conditions;

12 • Placed Smog Check Station License No. TC 186865, issued to Respondent Shop, on

l3 2-ycars probation with certain terms and conditions; and

14 • Placed Advanced Emission Specialist Technician License No. EA 134529, issued to

15 Respondent Oh, on 2-years probation with certain tenns and conditions.

16 That decision has become final and is incorporated herein as if fully set fmih.

17 BACKGROUND

18 29. On May 18, 20!6, an operator drove a Bureau-documented Honda to Respondent

19 Shop and requested a smog inspection. At the time, Respondent Shop's aod Respondent Ob's

20 regis!l:ations/ licenocs were stiJJ on probation from Case No. 77/14-18, described above.

21 30. Tile Honda had been documented as having a missing Catalytic Converter and a non-

22 approved add-on adapter/spacer installed under the post 02 sensor. In the condition that it was in,

23 · the Honda could not pass a properly-conducted smog inspection.

24 31. Respondent Oh filled out a written estimate, handed it to the operator, and instructed

25 the operator to fill in the name and address. The operator did so and signed. Respondent Oh did

26 not provide the operator a copy of the signed estimate,

27 32. Respondent Oh perfilrmcd a smog inspection and charged the operator $40.00.

28 Respondent Oh passed the vehicle. The operator paid and regained possession of the Honda.

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(KLIMBAWA OH; A LITO PORT CAR REPAIR) ACCUSATION

1 33. Respondent Oh signed the Vehicle Inspection Report under the following language:

2 "I certify, under the laws of the State of California, tliat I performed the inspection in accordance

3 with all bureau requirements, and that tl10 information listed on this vehicle inspection report is

4 true and accurate." In fact, Respondent Oh did not perform the inspection in accordance with all

5 Bureau requirements, and the information listed on the vehicle inspection report was not all true

6 and accul"atc.

7 FIRST CAUSE FOR DISCIPLINE

8 (False or Misleading Statements)

9 34. Respondent Shop's automotive repair dealer registration is subject to disciplinary

10 action under Bus. & Prot: Code section 9884.7(a)(l) in that Respondent Shop made or authorized

11 in any manner or by any means whatever a statement, written or oral, which was known to be

12 untrue or misleading, or which by the exercise of 1·oasonable care should have been known to be

13 untrue or misleading. The circumstances are described above· in Background.

14 SECOND CAUSE FOR DISCIPLINE

15 (Failure to Immediately Provide Copy of Signed Document)

16 35. Respondent Shop's automotive repair dealer registration is subject to disciplinary

17 action under Bus. & Prof. Code section 9884.7(a)(3) in that Respondent Shop failed or refused to

18 give a customer a copy of a document requiring his or her signature as soon as the customer

19 signed the document. The circumstances are described above in Background.

20 THIRD CAUSE FOR DISCIPLINE

21 (Conduct Constituting Fraud)

22 36. Respondent Shop's automotive repair dealer registration is subject to disciplinary

23 action under Bus. & Prof Code section 9884.7(a)(4) in that Respondent Shop engaged in conduct

24 that constituted fraud. The circumstances arc described above in Background.

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27 .Ill

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(KUMBAWA OH; AUTOPORT CAR REPAIR) ACCUSATION

FOURTH CAUSE FOR DISCIPLINE

2 (Fraud Whereby Another J.ujurcd and/or Respondent Benefitted)

3 37. Respondent Shop's smog check station license is subject to disciplinary action under

4 Health & Safety Code section 44072.2(d), and/or section 44072.ll(b) in conjunction with section

5 44072.!(d), In that Respondent Shop did an act involving dishonesty, fraud, or deceit whereby

6 another was injured and/or whereby Respondent Shop benefitted. The circumstances are

7 described above in Background.

8 FIFTH CAUSE FOR DlSClPLINE

9 (Misleading Information on Document)

10 38, Respondent Shop's smog check station license is subject to disciplinary action under

11 Health & Safety Code section 44072.2(c) in conjunction with California Code of Regulations,

12 title 16, section 3373, in that Respondeht'Shop inserted or withlwld a statement or information on

13 a document required to be maintained by section 3340.15(e), specifically, a vehicle inspection

14 report, that caused the docwnent to be false or misleading. TI1c circumstances are described

15 above in Background.

16 SIXTH CAUSE J<OR DISCIPLINE

17 (Issuance of Certificate to Tampefed Vehicle)

18 39. Respondent Shop's smog check station license is subject to disciplinary action under

19 Health & Safety Code section44072.2(h) in conjunction with section 44015(a)(l), in that

20 Respondent Shop issued a certificate of compliance to a tampered vehicle. The circumstances are

21 described above in Background.

22 Ill

23 Ill

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25 Ill

26 Ill

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(K\JMBAWA OH; A\J'l'OPORT CAR REPAIR) ACCUSATION

SEVENTH CAlJSE FOR DISCIPLINE

2 (Performing Test Other Thun in Accord with Required Procedures/ Smog Check Manual)

3 40. Respondent Shop's smog check station license is subject to disciplinary action under

4 Health & Safety Code sections 44072.2(h), 44012, and 440 1.2(1), and/or under Health & SaMy

5 Code section 44072.2(c) in conjunction with Callfornia Code of Regulations, title 16, section

6 3340.45, in that Respondent Shop tested a vehicle other than in accord with procedures mandated I

7 by the Bureau in the Smog Check Manual. The circumstances are described above in

8 Background.

9 EIGHTH CAUSE FOR DISCIPLINE

10 (Issuing Certificate to Improperly· Tested Vehicle)

11 41, · Respondent Shop's smog check station license is subject to disciplinary action under

12 Health & Safety Code section 44072.2(c) in conjunction with California Code of Regulations,

13 title 16, sections 3340.35(b), 3340.42, and 3340.45, in that Respondent Shop issued a certitlcate

14 of compliance to a customer whose vehicle had not been tested in accord with the procedures

15 mandated by the Bureau in the Smog Check Manual. The circumsiances are described above in

16 Background.

17 NINTH CAUSE FOR DISCIPLINE

18 (Fraud Whereby Another Injured and/or Respondent Benefitted)

19 42. Respondent Oh's smog check inspector license and smog check repair technician

20 · license are subject to discipline under Health & Safety Code sections 44072.11 (b) and 44072.1 (d),

21 and/or under H.calth & Safety Code section 44072.2(d), in that Respondent Oh did an act

22 involving dishonesty, fraud, or deceit whereby another was injured and/or whereby Respondent

23 Oh benefitted. The circumstances arc described above in Background.

24 Ill

25 Ill

26 Ill

27 Ill

28 Ill

11 ~-- ----~-------~~·~···-----~~-~--~--- ----· -~····-~~- ·-~~·~- --··~·

(KUMBAWA OH; AUTOPOR'l' CAR REPAIR) ACCUSATIOt\

I

2

TENTH CAUSE FQR DISCIPLINE

(Misleading Information on Document)

3 43. Respondent Oh's smog check inspector license and smog check repair t~ohnician

4 license are subject to discipline under Health & Safety Code section 44072.2(c) in conjunction

5 with CalifomiaCode of Regulations, title 16, section 3373, in that Respondent Oh inserted or

6 withheld a statement or information on a document required to be maintained by section

· 7 3340. l5(e), specifically, a vehicle inspection report, that caused the document to be false or

8 misleading. The circumstances arc described above in Backgl'ound.

9 ELEVENTH CAUSE FQR DISCIPLINE

10 (Performing Test Otlter Than In Accord with Required Procedures)

11 44. Respondent Oh's smog check inspector license and smog check repair technician

12 license are subject to discipline under Health & Safety Code sections 44072.2(h), 44032,44012,

13 and 44012(1), and/or under Health & Safety Code section 44072.2(c) in conjunction with

14 Califomia Code of Regulations, title 16, sections 3340.30(a) and/or 3340.45, in that Respondent

15 Oh performed a smog inspection other than according to procedures mandated by the Bureau in

16 the Smog Check Manual. The circumstances arc described above in Background.

17 OTHER MATTERS

18 45. Pursuant to Bus. & Prof. Code section 9884.7(c), the director. may suspend, revoke, or

19 place on probation the registrations for all places of business operated in this state by Kumbawa

20 Oh, upon a finding that he has, or is, engaged in a course of repeated and willful violation of the

21 laws and regulations pertaining to an automotive repair dealer.

22 46. Pursuant to Health and Safety Code section 44072.8, if Smog Check Station License

23 No. RC 241395, issued to Kumbawa Oh, is revoked or suspended, any additional license issued

24 under Chapter 5 of Part 5 ofDivision 26 of the Health and Safety Code in the name of said

25 licensee may be likewise revoked or suspended by the director.

26 · 47. Pursuant to Health and Safety Code section 44072.8, if Smog Check Inspector

27 License No. EO 24793 or Smog Check Repair Technician License No. El24793, issued to

28 Kumbawa Oh, are revoked or suspended, any additional license issued under Chapter 5 of Part 5

~·~··---------·-··--·

(KUMBAWA OH; AUTOPORT CAR REPAIR) ACCUSATION

of Division 26 of the Health and Safety Code in the name of said licensee may be likewise

2 revoked or suspended by the director.

3 PRAYER

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

5 and that following the hearing, the Director of Consumer Atfairs issue a decision:

6 l. Revoking, suspending, or placing on probation Automotive Repair Dealer

7 Registration Number ARD 241395, issued to Kumbawa R, Oh- Owner, d.b.a. Autoport Car

8 Repair Service;

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

10 registration issued to Kumbawa Oh;

11 3. Revoking, suspending, or placing on probation Smog Check Station License Number

12 RC 241395, issued to Kumbawa R. Oh- Owner, d.b.a. Autoport Car Repair Service;

13 4. Revoking, suspending, or placing on probation Smog Check Inspector License No.

14 EO 24793, issued to Kumbawa Ruu Oh; ·

15 5. Revoking, suspending, or placing on probation Smog Check Repair Technician

16 License No. £124793, issued to Kumbawa Ruu Oh;

17 6. Revoking, suspending, or placing on probation any additional license issued under

18 Chapter 5, Part 5, Division 26 of the Health and Safety Code in the name ofKumbawa Oh;

19 7. Ordering Kumbawa Ruu Oh to pay the Bureau of Automotive Repair the reasonable

20 costs of the investigation and enforcement of this case, pursuant to Business and Professions Code

21 section 125.3; and,

22

23

24.

25

26

27

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

SF2016201427 28 41600277.doc

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jiJ\'f iC!([5()r~A~IS­chier Bureau of Automotive Repair Department of Consumer Affairs State of California Complclinant

13 ..... ---------·

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(KUMBAWA OH; AUTOJ'OkT CAR REPA!Rj ;\CCUSAT!ON