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Monday, November 28, 2011

North Palm Beach “Takes the Fifth” On Police Abuse of Power Incident

...or "It Takes a Village to Take the Fifth"

Regular readers of my column are familiar with the saga of my being reported to the Florida Highway Safety and Motor Vehicle department, FHSMV, as a mentally or physically incompetent driver. I became aware of this approximately two weeks after I was ticketed for speeding by a North Palm Beach policeman. The letter I received from the FHSMV started out, “This agency has received information expressing concerns about your ability to drive safely. Please call the driver license office below to set up an appointment to take the vision, written, driving (in traffic) and hearing examinations.”

I looked into this and learned that this “information expressing concerns about my ability to drive” was reported to the FHSMV under a little know Florida law, 322.126(2), (3), which allows “any person” to confidentially report any other Florida driver as unable to drive safely and be held harmless from all civil or criminal liability even if the report was malicious in intent. I subsequently started a petition at www.DumbLaw.org to change this law. I’ve also met with two Florida legislators, Democrat Irv Slosberg of Boca Raton and Republican, Pat Rooney of Palm Beach Gardens to ask their assistance to change this law in Tallahassee. Both strongly support my position and have agreed to help me.  

Under the law, the FHSMV keeps secret the name of the informant. However, after a little detective work, I came up with a “person of interest” or suspect. He is a North Palm Beach policeman, the same one who ticketed me for speeding two weeks before I received the letter from the FHSMV. It turns out that this officer’s wife had been recently employed by me at my Toyota dealership. For what I believed were good reasons, I was forced to terminate her employment. She subsequently sued me under the EEOC for wrongful termination and my insurance company settled the case. I was also able to learn from the FHSMV that the informant was a “professional” meaning a police officer or doctor. Since my doctor agreed to give me a letter stating that I was 100% mentally and physically capable of driving a car, that left a policeman. The only policeman that I’d had any dealing with in quite some time was this North Palm Beach policeman. Finally, I did take and pass all of the required driving tests…written, eye test, hearing test, driving in traffic and driving on a special course. In fact, I not only passed, I passed with flying colors. My hearing and eyesight (20/20 with glasses) were perfect. I completed all of the driving tests without a single mistake and I missed only one question on the test (I could have passed missing up to10). These findings prove that the “person” who reported me to the FHSMV was either mistaken or not telling the truth. Since we know that the “person” was a professional, it would seem unlikely that he was mistaken.

Feeling that the above circumstantial evidence uncovered by my detective work was overwhelming, I decided to confront the Village of North Palm Beach. Through my attorney, I spoke with the vice Mayor who agreed to talk to the chief of police. When I didn’t hear back for a while, I was told that the matter was being discussed with the “collective bargaining” entity for the police department, the PBA. After several weeks, the North Palm Beach town attorney wrote me a letter stating the town’s position on my allegations. This is the pertinent part of the letter:

“With respect to the letter Mr. Stewart received from the Department of Highway Safety and Motor Vehicles (“DMV”) requesting that he appear for re-examination, Section 322.126(3), Florida Statutes, states that any report regarding a licensed driver’s mental or physical disability to drive is confidential and exempt from disclosure pursuant to Florida Public Records Law. The Florida Legislature has expressly determined that such reports shall not be disclosed or used for any purpose other than determining the qualification of a person to operate a motor vehicle on the highways of this state. As such, no civil or criminal action may be brought against any physician, person or agency who reports a potential disability to the DMV, nor shall any such report be used as evidence in any civil or criminal trial or in any court proceeding. 322.126(3) & (4), Florida Stat. (2011). See also Duckworth v. State, 923 So. 2d 530 (Fla. 4th DCA 2006). The Florida Legislature has clearly determined that the overriding public interest in ensuring that all licensed drivers possess the requisite ability to operate a motor vehicle trump any concerns raised by licensed drivers regarding the circumstances surrounding the filing of such a report.

            In light of the foregoing, even if the Village possessed information regarding a medical report filed with the DMV concerning Mr. Stewart, the Village is prohibited from disclosing the information set forth therein. Additionally, neither your client nor the Village can utilize the report as evidence in any criminal or civil proceedings unrelated to Mr. Stewart’s qualification to operate a motor vehicle.

Should you have any questions relative to the foregoing, please to not to hesitate to contact me.

Sincerely Yours,

Village Attorney”

After reading the above, I think you can appreciate my title to this article, North Palm Beach “Takes the Fifth” on Police Abuse of Power Incident.  Most people understand that people accused of a crime in America can elect to “refuse to answer on the grounds that it might tend to incriminate them”.  If you feel the same way I do about this, “taking the fifth” it’s just another way of saying “I’m guilty but you’ll have to prove it without my cooperation”. 

I’m betting that this police officer has never filed another report under this statute before in the remote chance that he believed in good faith that the driver lacked the physical or mental qualifications to drive. It’s a shame, arguably disgraceful, that law enforcement in North Palm Beach allows its officers to quench their personal agendas by abusing their official position and then hiding behind a statute’s confidentially provisions. I’m sure that the confidentially provision was not made part of the stature by the legislature to allow police officers to file reports in bad faith and with no objective basis.

My attorney tells me that, in spite of this statute, I have grounds to sue on the basis that this Florida statute is unconstitutional and that a judge could overturn this part of the law.  But I don’t want to sue the town of North Palm Beach, the cop that reported me, or anybody else. What I do want is for the town and the police officer to do the right thing which is to sincerely apologize. I would also like the town to take the necessary precautions to see that this never happens again to anybody else driving through the Village of North Palm Beach.

Monday, November 21, 2011

Caveat Emptor and Car Dealers: You Can Fool Some People All the Time


Almost everyone has read Abraham Lincoln’s popular saying, “You can fool some of the people all of the time, and all of the people some of the time, but you can’t fool all of the people all of the time.” I think Abe meant this to be a positive assertion that government may get away with deceiving us for a while, but in the long run, truth justice and the American way will prevail…and I think he was right.

However, it doesn’t work that way with unethical car dealers and car buyers. It always has been “caveat emptor”, or “buyer beware when it comes to buying or servicing a car. Unfortunately for a buyer to “beware” he must be “aware”…that is to say educated, mature, sophisticated and experienced. This excludes a very large segment of our population including the very young, the very old, the uneducated, those with low I.Q.’s and those not proficient in the English language. Is this one reason why our regulators and elected politicians don’t seem to care or take action with respect to the rampant unfair and deceptive sales practices of a large number of Florida car dealers? Most elected officials and regulators are lawyers and are highly educated and sophisticated. They don’t have a problem buying or servicing a car. In fact, the car dealer that tries to take advantage of a lawyer, regulator, or politician is asking for trouble.

I’ve been writing this column/blog and broadcasting my radio show, Earl Stewart on Cars, for about four years. I sometimes feel that I’m “preaching to the choir” when it comes to advising people how to avoid getting ripped off by a car dealer. You, my readers and listeners, largely fall into the category of the educated and sophisticated, “aware” buyer. Most of you aren’t taken advantage of when you buy or service your car because you won’t allow it. Unfortunately, there are enough uneducated, naive, and otherwise vulnerable consumers to feed those unethical car dealers who prey on the defenseless among us. All you have to do is read some of the car ads in the Saturday (the biggest selling day for most car dealers) auto classifieds. To the educated, sophisticated buyer, these ads are actually funny if you can forget the fact that so many fall prey to them and are taken advantage of by the dealers. For example, it’s hard for you or me to believe that anybody would respond to an advertisement without reading the fine print. Many dealers today are advertising prices that, when you read the fine print, are understated by many thousands of dollars. When you or I see a dealer stating that the car price is plus “freight”, we are educated enough to understand that the law requires that the freight cost be already included in the price. A shrewd buyer knows that “dealer list” is not the same thing as MSRP and that a large discount from “dealer list” means absolutely nothing. We know that the “lowest price guarantee’ is worthless if the dealer reserves the right to buy the car from the other dealer that offers a lower price.

There are those who argue that all buyers have the responsibility to guard against unethical sellers, to take care of themselves. In fact, that’s the literal translation of the Latin legal term “caveat emptor”…let the buyer beware. That’s sounds good, but what about the elderly widow whose husband recently died and who never had to make a the decision on a major purchase in her entire life? What about the young person just out of school with no experience in the real world? How about the immigrant who struggles with English? Should we be concerned about our underprivileged classes who often drop out of school because they have to go to work to support themselves or their family? You and I know lots of good people who, for one reason or another, simply can’t cope with a slick car or service salesman.

My bottom line is this, since we can’t rely on our regulators and politicians to protect those who “can be fooled all the time”, maybe we owe it to society to protect these folks. If you know someone who is thinking about buying a car or has a service problem with her car and you feel she may not have the ability to fend for herself with the car dealer, offer your support. If you’re one of the people who needs support, ask someone who can go “toe to toe” with a car dealer to come with you when you are car shopping. By the way, nobody, sophisticated or not, should car shop alone. Two heads are always better than one and it’s always a good idea to have a witness to what was said during a negotiation. And, of course, if you don’t have the time to help a person or you’re that person, you can always call me…I’m always here for you.

Saturday, November 12, 2011

Why New Car Tires Wear Out So Fast


The tires that came with your last new car were not designed by Michelin, Goodyear, Bridgestone or any other tire manufacturer. They were designed by the manufacturer of your car. If your new car came with a set of Michelins, Michelin made the tire but they made it to the specifications set by your car manufacturer. These tires are referred to as OEM (original equipment manufacturer).

Furthermore, your manufacturer does not warranty the tires on your new car even though he tells you that you have a “bumper to bumper” warranty. The last time I checked, my tires were between my front and rear bumpers. Even though GM designed the tires on your Chevrolet, they have no responsibility if they are defective. The tire manufacturer bears that responsibility.

The OEM tires that came with your car can’t be replaced (which is a good thing) after they’ve worn out. And they will wear out much sooner than they should. This is because virtually all auto manufacturers specify very soft rubber which means they wear out too fast. Why would the manufacturer do that? They want that new car to have the smoothest ride possible, even at your expense of having to buy a new set of tires at half the mileage you should have to. When you test drive that brand new car and it rides very, very smoothly you’re more likely to buy it. You’ll find out how fast the tires wear out much later, and when you do you’ll blame it on the tire maker.

By the way, another way the car makers delude you into thinking your ride is very smooth is by recommending low tire inflation. The number you see on your door jamb or in your car’s owner’s manual is the car manufacturer’s recommended air pressure. The number on your tire is the tire maker’s recommendation. The number on the door jamb is the minimum and the number on the tire is the maximum. There’s typically a 10 pound difference.  I recommend you try the maximum and, if the ride’s too rough, split the difference. You’ll not only get longer tire wear but better gas mileage.

I can’t prove it, but I suspect another reason auto manufacturers design their own tires is to cut costs. By cutting a few corners in the design and specifications, they can increase their profit and/or cut the overall car price. If there purpose was to design a better tire, why wouldn’t they make these OEM tires available for the car owner to buy after the first set wears out? Many car owners “think” they’re replacing their Firestones or Michelins that were on their new car with the same tire, but they’re not. The tire might be the same size and look the same, but it’s a different model number.

One thing you should look for on your first set of replacement tires is the “tread wear index” which is molded into the side of your tires. This number will be 200 to 800. Your OEM tires will have a lower number because their made of softer rubber. If the tires that came on your car had a 200 tread wear index and you replaced them with 400, you should get twice the mileage on your second set of tires. The car might not ride as smoothly, but most people can’t even notice. And to my way of thinking, cutting you tires cost in half is pretty good compensation for a slightly rougher ride.

When replacing your tires, don’t get enamored by a sexy brand name. Brands aren’t always built on quality but also on advertising. Also, a famous brand tire makes all different kinds of tires to many different designs and specifications. Just because it’s a “Michelin” doesn’t necessarily man it’s a good tire. If Michelin made that tire for an auto manufacturer who designed the tire with only two things in mind…low cost and soft ride, you didn’t get a very good tire. My recommendation is to check Consumer Reports for the best tire replacements. You’ll find tire brands recommended that you may never have heard about. The Japanese and Chinese make some very good tires but they have funny sounding names and you don’t see them advertised heavily on TV.