Transcription
XAVIER BECERRAAttorney General of California234567KENT D. HARRISSupervising Deputy Attorney GeneralMABEL LEWDeputy Attorney GeneralState Bar No. 1580421300 1 Street, Suite 125P.O. Box 94425Sacramento, CA 94244-2550Telephone: (916) 210-6104Facsimile: (916) 327-8643Attorneys for Complainant8BEFORE THEDEPARTMENT OF CONSUMER AFFAIRSFOR THE BUREAU OF AUTOMOTIVE REPAIRSTATE OF CALIFORNIA91011In the Matter of the Accusation Against:Case No. 79/ 16 - 15317ACCUSATION1213141516JOHNNY JEBRAIEL OROOMIEH, DBAJOHNNY "O" QUICK SMOG1729 Yosemite Blvd.Modesto, CA 95354Automotive Repair Dealer RegistrationNo. ARD 275334Smog Check, Test Only, Station LicenseNo. TC 27533417JOHNNY OROOMIEH18202122P.O. Box 2827Turlock, CA 95380-2827Smog Check Inspector License No. EO 1 14522Smog Check Repair Technician License No. El 1 14522Brake Adjuster License No. BA 1 14522, Class ALamp Adjuster License No. LA 1 14522, Class ARespondent.23Patrick Dorais ("Complainant") alleges:24PARTIES2526271. Complainant brings this Accusation solely in his official capacity as the Chief of theBureau of Automotive Repair ("Bureau"), Department of Consumer Affairs.28(JOHNNY "O" QUICK SMOG; JOHNNY JEBRAIEL OROOMIEH, OWNER) ACCUSATION
Automotive Repair Dealer RegistrationNw2.On or about January 22, 2014, the Bureau issued Automotive Repair DealerRegistration Number ARD 275334 to Johnny Jebraiel Oroomich, also known as Johnny J.Oroomieh ("Respondent"), as owner of Johnny "O" Quick Smog. The Automotive Repair DealerRegistration was in full force and effect at all times relevant to the charges brought herein and6will expire on January 31, 2019, unless renewed.7Smog Check, Test Only Station License83.On or about March 12, 2015, the Bureau issued Smog Check, Test Only, StationLicense Number TC 275334 ("station license") to Respondent. The Smog Check, Test Only,1011Station License was in full force and effect at all times relevant to the charges brought herein andwill expire on January 31, 2019, unless renewed.12Smog Check Inspector (EO)/Smog Check Repair Technician (EI) License134.On a date unknown in 1996, the Bureau issued Advanced Emission Specialist14Technician License No. EA 1 14522 to Respondent. Effective March 17, 2014, the Bureau issued15Smog Check Inspector License No. EO 1 14522 and Smog Check Repair Technician License No.16El 1 14522 to Respondent ("Technician Licenses")' The Smog Check Repair Technician License17expired on May 31, 2016. The Smog Check Inspector License was in full force and effect at all18times relevant to the charges brought herein and will expire on May 31, 2018, unless renewed.19Brake Adjuster License205.On a date unknown in 2004, the Bureau issued Brake Adjuster License,21Classification A, No. BA 1 14522 to Respondent. The Brake Adjuster License expired on22May 31, 2009, and has not been renewed.232425262728Effective 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 AdvancedEmission Specialist Technician (EA) license and Basic Area (EB) Technician license to SmogCheck Inspector (EO) license and/or Smog Check Repair Technician (EI) license.2(JOHNNY "(" QUICK SMOG; JOHNNY JEBRAIEL OROOMIEH, OWNER) ACCUSATION
Lamp Adjuster License6.NOn a date unknown in 2004, the Bureau issued Lamp Adjuster License,wClassification A, No. LA 114522 to Respondent. The Lamp Adjuster License expired on May 31,A2009, and has not been renewed.JURISDICTION567.This Accusation is brought before the Bureau under the authority of the following8.Business and Professions Code ("Bus. & Prof. Code") section 9884.7 provides thatlaws.910the Director may revoke an automotive repair dealer registration.9.Bus. & Prof. Code section 9884.13 provides, in pertinent part, that the expiration of a11valid registration shall not deprive the Director of jurisdiction to proceed with a disciplinary12proceeding against an automotive repair dealer or to render a decision temporarily or permanently13invalidating (suspending or revoking) a registration.141516171819202110. Bus. & Prof. Code section 9887.1 states:The director shall have the authority to issue licenses for official lamp andbrake adjusting stations and shall license lamp and brake adjusters. The licensesshall be issued in accordance with this chapter and regulations adopted by thedirector pursuant thereto. The director shall establish by regulation the terms ofadjusters' licenses as are necessary for the practical administration of theprovisions relating to adjusters, but those terms shall not be for less than onenor more than four years. Licenses may be renewed upon application andpayment of the renewal fees if the application for renewal is made within the30-day period prior to the date of expiration. Persons whose licenses haveexpired shall immediately cease the activity requiring a license . . .1 1. Bus. & Prof. Code section 477 provides, in pertinent part, that "Board" includes22"bureau," "commission," "committee," "department," "division," "examining committee,"23"program," and "agency." "License" includes certificate, registration or other means to engage in2425a business or profession regulated by the Bus. & Prof. Code.12. Health and Safety Code section 44002 provides, in pertinent part, that the Director26has all the powers and authority granted under the Automotive Repair Act for enforcing the27Motor Vehicle Inspection Program.28(JOHNNY "O" QUICK SMOG; JOHNNY JEBRAIEL OROOMIEH, OWNER) ACCUSATION
13. Health & Safety Code section 44072.6 provides, in pertinent part, that the expirationNor suspension of a license by operation of law, or by order or decision of the Director of3Consumer Affairs, or a court of law, or the voluntary surrender of the license shall not deprive the4Director of jurisdiction to proceed with disciplinary action.14. Health & Safety Code section 44072.8 states that when a license has been revoked or6suspended following a hearing under this article, any additional license issued under this chapter7in the name of the licensee may be likewise revoked or suspended by the director.STATUTORY AND REGULATORY PROVISIONS8910111215. Bus. & Prof. Code section 9884.7 states, in pertinent part:(a) The director, where the automotive repair dealer cannot show there was abona fide error, may deny, suspend, revoke, or place on probation theregistration of an automotive repair dealer for any of the following acts oromissions related to the conduct of the business of the automotive repairdealer, which are done by the automotive repair dealer or any automotivetechnician, employee, partner, officer, or member of the automotive repairdealer.13(1) Making or authorizing in any manner or by any means whatever anystatement written or oral which is untrue or misleading, and which isknown, or which by the exercise of reasonable care should be known, tobe untrue or misleading.14151617. .(4) Any other conduct that constitutes fraud.1819202122232425262728(6) Failure in any material respect to comply with the provisions of thischapter or regulations adopted pursuant to it.16. Bus. & Prof. Code section 17200 states in pertinent part:Unfair competition shall mean and include any unlawful, unfair, or fraudulentbusiness act or practice, and unfair, deceptive, untrue, or misleading advertising.17. Bus. & Prof. Code section 17500 states in pertinent part:It is unlawful for any person, firm, corporation or association, or any employeethereof with intent to perform services, professional or otherwise for anything of anynature whatsoever or to induce the public to enter into any obligation relating thereto,to make or disseminate or cause to be made or disseminated before the public in thisstate, any statement, concerning those services, professional or otherwise, orconcerning any circumstance or matter of fact connected with the proposedperformance or disposition thereof, which is untrue or misleading, and which isknown, or which by the exercise of reasonable care should be known, to be untrue orJOHNNY "O" QUICK SMOG; JOHNNY JEBRAIEL OROOMIEH, OWNER) ACCUSATION
misleading.18. Health & Safety Code section 44012 states, in pertinent part:Nw10121314The test at the smog check stations shall be performed in accordance withprocedures prescribed by the department and may require loaded modedynamometer testing in enhanced areas, two-speed idle testing, testingutilizing a vehicle's onboard diagnostic system, or other appropriate testprocedures as determined by the department in consultation with the stateboard. The department shall implement testing using onboard diagnosticsystems, in lieu of loaded mode dynamometer or two-speed idle testing, onmodel year 2000 and newer vehicles only, beginning no earlier than January1, 2013. However, the department, in consultation with the state board, mayprescribe alternative test procedures that include loaded mode dynamometeror two-speed idle testing for vehicles with onboard diagnostic systems thatthe department and the state board determine exhibit operational problems.The department shall ensure, as appropriate to the test method, the following:a) Emission control systems required by state and federal law are reducingexcess emissions in accordance with the standards adopted pursuant tosubdivisions (a) and (c) of Section 44013.19. Health & Safety Code section 44015 states:"(a) A licensed smog check station shall not issue a certificate of compliance,except as authorized by this chapter, to any vehicle that meets thefollowing criteria:(1) A vehicle that has been tampered with.15(2) A vehicle identified pursuant to subparagraph (K) of paragraph (3) ofsubdivision (b) of Section 44036. A vehicle identified pursuant tosubparagraph (K) of paragraph (3) of subdivision (b) of Section 44036shall be directed to the department to determine whether an inadvertenterror can explain the irregularity, or whether the vehicle otherwisemeets smog check requirements, allowing the certificate for complianceto be issued, or the vehicle shall be reinspected by a referee or anothersmog check station.1617181920(3) A vehicle that, prior to repairs, has been initially identified by the smogcheck station as a gross polluter. Certification of a gross pollutingvehicle shall be conducted by a designated test-only facility, or a testand-repair station that is both licensed and certified pursuant to2122Sections 44014 and 44014.2.232425262728(4) A vehicle described in subdivision (c).(b) If a vehicle meets the requirements of Section 44012, a smog check stationlicensed to issue certificates shall issue a certificate of compliance or acertificate of noncompliance.(c)(1 ) A repair cost waiver shall be issued, upon request of the vehicle owner,by an entity authorized to perform referee functions for a vehicle thathas been properly tested but does not meet the applicable emission5(JOHNNY "O" QUICK SMOG; JOHNNY JEBRAIEL OROOMIEH, OWNER) ACCUSATION
NwAJ101112131415standards when it is determined that no adjustment or repair can bemade that will reduce emissions from the inspected motor vehiclewithout exceeding the applicable repair cost limit established underSection 44017 and that every defect specified by paragraph (2) ofsubdivision (a) of Section 43204, and by paragraphs (2) and (3) ofsubdivision (a) of Section 43205, has been corrected. A repair costwaiver issued pursuant to this paragraph shall be accepted in lieu of acertificate of compliance for the purposes of compliance with Section4000.3 of the Vehicle Code. No repair cost waiver shall exceed twoyears' duration. No repair cost waiver shall be issued until the vehicleowner has expended an amount equal to the applicable repair cost limitspecified in Section 44017.(2) An economic hardship extension shall be issued, upon request of aqualified low-income motor vehicle owner, by an entity authorized toperform referee functions, for a motor vehicle that has been properlyested but does not meet the applicable emission standards when it isdetermined that no adjustment or repair can be made that will reduceemissions from the inspected motor vehicle without exceeding theapplicable repair cost limit, as established pursuant to Section 44017.1,that every defect specified in paragraph (2) of subdivision (a) ofSection 43204, and in paragraphs (2) and (3) of subdivision (a) ofSection 43205, has been corrected, that the low-income vehicle ownerwould suffer an economic hardship if the extension is not issued, andthat all appropriate emissions-related repairs up to the amount of theapplicable repair cost limit in Section 44017.I have been performed.(d) No repair cost waiver or economic hardship extension shall be issuedunder any of the following circumstances:20(1) If a motor vehicle was issued a repair cost waiver or economic hardshipextension in the previous biennial inspection of that vehicle. A repaircost waiver or economic hardship extension may be issued to a motorvehicle owner only once for a particular motor vehicle belonging to thatowner. However, a repair cost waiver or economic hardship extensionmay be issued for a motor vehicle that participated in a previous waiveror extension program prior to January 1, 1998, as determined by thedepartment. For waivers or extensions issued in the program operativeon or after January 1, 1998, a waiver or extension may be issued for amotor vehicle only once per owner.21(2) Upon initial registration of all of the following:16171819222324(A) A direct import motor vehicle.(B) A motor vehicle previously registered outside this state.(C) A dismantled motor vehicle pursuant to Section 1 1519 of theVehicle Code.25262728(D) A motor vehicle that has had an engine change.(E) An alternate fuel vehicle.(F) A specially constructed vehicle.6(JOHNNY "O" QUICK SMOG; JOHNNY JEBRAIEL OROOMIEH, OWNER) ACCUSATION
(e) Except as provided in subdivision (f), a certificate of compliance ornoncompliance shall be valid for 90 days.a(f) Excluding any vehicle whose transfer of ownership and registration isdescribed in subdivision (d) of Section 4000.1 of the Vehicle Code, andexcept as otherwise provided in Sections 4000.1, 24007, 24007.5, and24007.6 of the Vehicle Code, a licensed motor vehicle dealer shall beresponsible for having a smog check inspection performed on, and acertificate of compliance or noncompliance issued for, every motor vehicleoffered for retail sale. A certificate issued to a licensed motor vehicledealer shall be valid for a two-year period, or until the vehicle is sold andregistered to a retail buyer, whichever occurs first.J(g) A test may be made at any time within 90 days prior to the date otherwiseNwArequired.oo101112131420. Health & Safety Code section 44072.2 states, in pertinent part:The director may suspend, revoke, or take other disciplinary action against alicense as provided in this article if the licensee, or any partner, officer, or directorthereof, does any of the following:(a) Violates any section of this chapter [ the Motor Vehicle InspectionProgram (Health and Safety Code, 44000, et seq.)] and the regulationsadopted pursuant to it, which related to the licensed activities.15.16(c) Violates any of the regulations adopted by the director pursuant to thischapter.1718192021(g) Fails to make and keep records showing his or her transactions as alicensee, or fails to have those records available for inspection by thedirector or his or her duly authorized representative for a period of notless than three years after completion of any transaction to which therecords refer, or refuses to comply with a written request of the directorto make the records available for inspection.2221. Health & Safety Code section 44072. 10(c) states, in pertinent part:23242526The department shall revoke the license of any smog check technician orstation licensee who fraudulently certifies vehicles or participates in thefraudulent inspection of vehicles. A fraudulent inspection includes, but is notlimited to, all of the following:.2728(4) intentional or willful violation of this chapter or any regulation, standard, orprocedure of the department implementing this chapter . . .7(JOHNNY "O" QUICK SMOG; JOHNNY JEBRAIEL OROOMIEH, OWNER) ACCUSATION
22. Health & Safety Code section 44024.5(a), states:NwAaJ10"The department shall compile and maintain statistical and emissions profilesand data from motor vehicles that are subject to the motor vehicle inspectionprogram. The department may use data from any source, including remotesensing data, in use data, and other motor vehicle inspection program data,to develop and confirm the validity of the profiles, to evaluate the program,and to assess the performance of smog check stations. The department shallundertake these requirements directly or seek a qualified vendor for theseservices."23. Health & Safety Code section 44037 states, in pertinent part:(a) The department shall compile and maintain records, using the samplingmethodology necessary to ensure their scientific validity and reliability, oftests and repairs performed by qualified smog check technicians at licensedsmog check stations pursuant to this chapter on all of the followinginformation:11(I) The motor vehicle identification information and the test data collected atthe station.1213(5) Data received and compiled through the use of the centralized computerdatabase and computer network to be established pursuant to Section44037.1, and any other information determined to be essential by thedepartment for program enhancement to achieve greater efficiency,consumer protection, cost-effectiveness, convenience, or emissionreductions . . .1415161724. Health & Safety Code section 44037. I states, in pertinent part:(a) On or before January 1, 1995, the department shall design and establish theequipment necessary to operate a centralized computer data base andcomputer network that is readily accessible by all licensed smog checktechnicians on a real time basis.181920(b) The centralized computer data base and network shall be designed with allof the following capabilities:21.222324(2) To provide smog check technicians and the department with informationas to the date and result of prior smog check tests performed on eachvehicle to discourage vehicle owners from shopping for certificates ofcompliance and to permit the department to identify smog check stationsfor further investigation as potential violators of this chapter.25262728(3) To provide the department with data on the failure rates and repaireffectiveness for vehicles of each make and model year on a statewidebasis, and by smog check station and technician, to facilitateidentification of smog check stations and technicians as potentialviolators of this chapter.8(JOHNNY "(" QUICK SMOG; JOHNNY JEBRAIEL OROOMIEH, OWNER) ACCUSATION
.(8) To be compatible with the department's recordkeeping and compilationrequirements established by Section 44037.Nw(c) After January 1, 1995, each smog check station shall transmit vehicle dataemission test results to the department's centralized data base. Each smogcheck station shall also transmit vehicle data and emission measurementsmade before and after repair . . . 25. California Code of Regulations, title 16 ("CCR"), section 3340.17 states, in pertinentpart:. .9(c) Vehicle data and test results from the OBD Inspection System (OIS) shall betransmitted to the bureau's centralized database . . .101126.CCR section 3340.30 states, in pertinent part:12A licensed smog check inspector and/or repair technician shall comply with the13following requirements at all times while licensed:14(a) Inspect, test and repair vehicles, as applicable, in accordance with section44012 of the Health and Safety Code, section 44035 of the Health and SafetyCode, and section 3340.42 of this article.151627.171819CCR section 3340.35 states:"(a) A licensed station shall purchase certificates of compliance andnoncompliance from the bureau or an authorized agent of the bureau only,and un
17 adjusters' licenses as are necessary for the practical administration of the provisions relating to adjusters, but those terms shall not be for less than one . nature whatsoever or to induce the public to enter into any obligation relating thereto, to make or disseminate or cause to be made or diss
