71 - California Bureau of Automotive...

BEFORE THE DIRECTOR DEPARTMENT OF CONSUMER AFFAIRS

BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

In the Matter of the Accusation Against:

TN SMOG- CHECK IDEN MANH NGUYEN, OWNER 1202 F. Street Los Banos, CA 93635

Automotive Repair Dealer Registration No. ARD 273679 Smog Check Station License No. RC 273679 Lamp Station License No. LS 273679 Brake Station License No. BS 273679

and

HIEN MANH NGUYEN 2059 Laddie Way San Jose, CA 95121

Smog Check Inspector License No. EO 631512

Smog Check Repair Technician License No. EI 631512 (formerly Advanced Emission Specialist Technician License No. EA 631512)

Brake Adjuster License No. BA 631512 Lamp Adjuster License No. LA 631512

Res ondents.

Case No. 77115-5619

DECISION

The attached Stipulated Revocation of License and Order is hereby accepted and adopted as the Decision of the Director of the Department of Consumer Mfairs in the above-entitled matter.

This Decision shall become effective ___o,.\..1411/.i\,..!)_.,tL.t..""'~=rL...>oJ~-__.1'71 ___ 2u.o"--'J'-"8"----

DATED: _ _.__12.---t.-{_._1+-/ ~t1:---.--/ ~

GRACE ARUPO RODRIGUEZ Assistant Deputy Director Legal Affairs Division Department of Consumer Affairs

1

2

3

4

5

6

7

8

9

10

11

12

XAVIER BECERRA Attorney General of California JANICEK lACHt\1AN Supervising Deputy Attorney General DANIEL D. McGEE Deputy Attorney General State Bar No. 218947

1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 322-6115 Facsimile: (916) 324-5567 E-mail: [email protected]

Attorneys for Complainant

BEFORE THE DEPARTMENT OF CONSUMER AFFAIRS

FOR THE BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

Case No. 77/15-5619 13 In the Matter of the Accusation Against:

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TN SMOG- CHECK HIEN MANH NGUYEN, OWNER 1202 F. Street Los Banos, CA 93635

Automotive Repair Dealer Reg. No. ARD 273679 Smog Check Station License No. RC 273679 Lamp Station License No. LS 273679 Brake Station License No. BS 273679

and

HIEN MANH NGUYEN 2059 Laddie Way San Jose, CA 95121

Smog Check Inspector License No. EO 631512 Smog Check Repair Technician License No. EI 631512 (formerly Advanced Emission Specialist Technician License No. EA 631512) Brake Adjuster License No. BA 631512 Lamp Atljustcr Licen::.e Nu. LA 631512.

Respondents.

1

STIPULATED REVOCATION OF LICENSE AND ORDER

Stipulated Revocation of License (Case No. 77/15-5619

1 IT IS HEREBY STIPULATED AND AGREED by and between the parties to the above-

2 entitled proceedings that the following matters are true:

4 1. Patrick Dorais (Complainant) is the Chief of the Bureau of Automotive Repair

5 (Bureau). He brought this action solely in his official capacity and is represented in this matter by

6 Xavier Becerra, Attorney General of the State of California, by Daniel D. McGee, D~puty Attorney

7 General.

8 TN Smog- Check; Hi en Manh Nguyen, Owner

9 2. TN Smog- Check; Hien Manh Nguyen, Owner (Respondent) is represented in this

10 proceeding by attorney Annie Taylor, whose address is:

11 Law Offices of Shawn M. George, APC 1009 6th Street

12 Los Banos, CA 93635.

13 3. On or about July 16, 2013, the Bureau issued Automotive Repair Dealer Registration

14 No. ARD 273679 to T N Smog - Check; Hien Manh Nguyen, Owner (Respondent). The

15 Automotive Repair Dealer Registration was in full force and effect at all times relevant to the

16 charges brought in First Amended Accusation No. 77/15-5619 and will expire on July 31, 2017,

17 unless renewed.

18' 4. On or about July 22, 2013, the Bureau issued Smog Check Station License No. RC

19 273679 toT N Smog- Check; Hien Manh Nguyen, Owner (Respondent). The Smog Check Station

20 License was in full force and effect at all times relevant to the charges brought in First Amended

21 Accusation No. 77/15-5619 and will expire on July 31,2017, unless renewed.

22 5. On or about July 19, 2013, the Bureau issued Lamp Station License No. LS 273679 to

23 TN Smog- Check; Hien Manh Nguyen, Owner (Respondent). The Lamp Station License was in

24 full force and effect at all times relevant to the charges brought in First Amended Accusation No.

25 77/15-5619 and will expire on July 31, 2017, unless renewed.

26 6. On or <1hnnt July 1 R, '201 ~- the Director iR~1wd Rr<1l((c St:1tinn T .ic.enc:P. Numher RS

27 273679 to Respondent. The brake station license was in full force and effect at all times relevant

28 to the charges brought in First Amended Accusation and will expire on July 31, 2017, unless

2


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

renewed.

Hien Manh Nguyen

7. On or about November 16, 2009, the Director issued Advanced Emission Specialist

Technician License Number EA 631512 to Respondent. Respondent's advanced emission

specialist technician license was due to expire on July 31, 2013. Pursuant to Title 16, California

Code of Regulations, section 3340.28, subdivision (e), the license was renewed, pursuant to

Respondent's election, as Smog Check Inspector License Number EO 631512 and Smog Check

Repair Technician License Number EI 631512 ("technician licenses"), effective July 18, 2013.

Respondent's technician licenses will expire on July 31, 2017, unless renewed.

8. On or about December 10, 2012, the Director issued Brake Adjuster License Number

BA 631512 to Respondent. The Brake Adjuster License expired on July 31, 2016, and has not been

renewed.

9. On or about December 11, 2012, the Director issued Lamp Adjuster License Number

LA 631512 to Respondent. The lamp adjuster license expired on July 31, 2016, and became

delinquent on or after July 31, 2016.

JURISDICTION

17 10. First Amended Accusation No. 77/15-5619 was filed before the Bureau and is currently

18 pending against Respondent. The First Amended Accusation and all other statutorily required

19 documents were proper I y served on Respondent on March 24, 2017. Respondent timely filed his

20 Notice of Defense contesting the Accusation. A copy of First Amended Accusation No. 77/15-

21 : 5619 is attached as Exhibit A and incorporated by reference.

22 ADVISEMENT AND WAIVERS

23 11. Respondent has carefully read, fully discussed with counsel, and understands the

24 charges and allegations in First Amended Accusation No. 77/15-5619. Respondent also has

25 carefully read, fully discussed with counsel, and understands the effects of tb.is Stipulated

26 Revocatjon of License Rnd Order.

27 12. Respondent is fully aware of his legal rights in this matter, including the right to a

28 hearing on the charges and allegations in the First Amended Accusation; the right to confront and

3


1 cross-examine the witnesses against him; the right to present evidence and to testify on his own

2 behalf; the right to the issuance of subpoenas to compel the attendance of witnesses and the

3 production of documents; the right to reconsideration and court review of an adverse decision; and

4 all other rights accorded by the California Administrative Procedure Act and other applicable laws.

5 13. Respondent voluntarily, knowingly, and intelligently waives and gives up each and

6 every right set forth above.

7 CULPABILITY

8 14. Respondent admits the truth of each and every charge and allegation in First Amended

9 Accusation No. 77/15-5619, agrees that cause exists for discipline and hereby stipulates to the

10 revocation of his Automotive Repair Dealer Registration No. ARD 273679. Respondent

11 understands that by signing this stipulation, he enables the Director to issue an order revoking his

12 Automotive Repair Dealer Registration without further process.



15 revocation of his Smog Check Station License Number RC 273679. Respondent understands that

16 by signing this stipulation, he enables the Director to issue an order revoking his Smog Check

17 Station License without further process.



20 revocation of his Lamp Station License Number LS 273679. Respondent understands that by

21 signing this stipulation, he enables the Director to issue an order revoking his Lamp Station License

22 without further process.



25 revocation of his Brake Station License Number BS 273679. Respondent understands that by

27 without further process.


4



2 revocation of his Smog Check Inspector License Number EO 631512. Respondent understands

3 that by signing this stipulation, he enables the Director to issue an order revoking his Smog Check

4 Inspector License without further process.



7 revocation of his Smog Check Repair Technician License Number EI 631512. Respondent

8 understands that by signing this stipulation, he enables the Director to issue an order revoking his

9 Smog Check Repair Technician License without further process.



12 revocation of his Brake Adjuster License Number BA 631512. Respondent understands that by

13 signing this stipulation he enables the Director to issue an order revoking his Brake Adjuster

14 License without further process.



17 revocation of his Lamp Adjuster License Number LA 631512. Respondent understands that by

18 signing this stipulation, he enables the Director to issue an order revoking his Lamp Adjuster

19 License without further process.

20 CONTINGENCY

21 22. This stipulation shall be subject to approval by the Director or the Director's designee.

22 Respondent understands and agrees that counsel for Complainant and the staff of the Bureau of

23 Automotive Repair may communicate directly with the Director and staff regarding this stipulated

24 revocation of license, without notice to or participation by Respondent or his counsel. By signing

25 the stipulation, Respondent understands and agrees that he may not withdraw his agreement or seek

26 to re:;;cind the stipulntion prior to thtc time tllF, Director cnnsirlP-rs <md RCts 11pon iL Tf the Dirertor

27 fails to adopt this stipulation as the Decision and Order, the Stipulated Revocation of License and

28 Disciplinary Order shall be of no force or effect, except for this paragraph, it shall be inadmissible

5

Stipulated Revocalion of license (Case No, 77/15-5619~

1 in any legal action between the parties, and the Director shall not be disqualified from further action

2 by having considered this matter.

3 23. The parties understand and agree that Portable Document Format (PDF) and facsimile

4 copies of this Stipulated Revocation of License and Order, including PDF and facsimile signatures

5 thereto, shall have the same force and effect as the originals.

6 24. This Stipulated Revocation of License and Order is intended by the parties to be an

7 integrated writing representing the complete, final, and exclusive embodiment of their agreement.

8 It supersedes any and all prior or contemporaneous agreements, understandings, discussions,

9 negotiations, and commitments (written or oral). This Stipulated Revocation of License and Order

10 may not be altered, amended, modified, supplemented, or otherwise changed except by a writing

11 executed by an authorized representative of each of the parties.

12 25. In consideration of the foregoing admissions and stipulations, the parties agree that the

13 Director may, without further notice or formal proceeding, issue and enter the following Order:

14 ORDER

15 IT IS HEREBY ORDERED that the following registrations and licenses issued to

16 Respondent TN Smog- Check; Hien Manh Nguyen, Owner, are revoked: Automotive Repair

17 Dealer Registration No. ARD 273679; Smog Check Station License Number RC 273679; Lamp

18 Station License No. LS 273679; and Brake Station License Number BS 273679.

19 IT IS LIKEWISE HEREBY ORDERED that the following licenses issued to Respondent

20 Hien Manh Nguyen are revoked: Smog Check Inspector License Number EO 631512; Smog Check

21 Repair Technician License Number EI 631512; Brake Adjuster License Number BA 631512; and

22 Lamp Adjuster License Number LA 631512.

23 1. The revocation of Respondent's aforementioned registrations and licenses shall

24 constitute the imposition of discipline against Respondent. This stipulation constitutes a record of

25 the discipline and shall become a part of Respondent's license history with the Bureau of

26 Antomn1ivf'. Rr.rflir

27 2. As of the effective date ofthe Director's Decision and Order, Respondent shall lose all

28 rights and privileges in California as an automotive repair dealer, smog check station, lamp station,

6


l I

I I 1

2

3

4

5

6

7

8

9

10

11_

12

13

14

15

16

17

18

19

20

21

22

23

24

brake station, smog check inspector, smog check repair technician, lamp repair technician, and

brake repair technician.

3. On or before the effective date of the Decision and Order, Respondent shaH cause to

be delivered to the Bureau his pocket licenses corresponding to each of the aforementioned

registrations and licenses, and, if any were issued, his wall certificates,

4. If Respondent ever files an application for licensure or a petition for reinstatement in

the State of California, the Bureau shall treat it as a petition for reinstatement. Respondent must

comply with all the laws, regulations and procedures for reinstatement of a revoked license in effect

at the time the petition is i'iled, and all of the charges and allegations contained in First Amended

Accusation No. 77115-5619 shall be deemed to be true, correct and admitted by Respondent when

the Director determines whether to grant or deny the petition.

5. Respondent shall pay the agency its costs of investigation and enforcement in the

amount of $26,198.06 pl'ior to application for the issuance of any new or reinstated license.

ACCEPTANCE

I have carefully read the above Stipulated Revocation of Ucense and Order and have fully

discussed it with my attorney, Annie Taylor. I understand the stipulation and the effect it will have

on each my Automotive Repair Dealer Registration, Smog Check Station License, Lamp Station

License, Brake Station Licen::;e, Smog Check Inspector License, Smog Check Repair Technician

License, Brake Adjuster License nncl Lamp Adjuster License. I enter into thls Stipulated

Revocation of License and Order vollmtarlly, knowingly, and intelligently, and agree to be bound

by the Decision aud Order of the Director of Consumer Affairs.

/2:a 1 '--------,--------~=--c~~~-/-1 TN SMOG -Cl-IEC . ;

7 I

DATED:

OWNER 25 . Respondent

26 II

27 //

28 II

7

Stipulnted Revocation of License (Case No. 77/15-5619

Exhibit A

Accusation No. 77/15-5619

1 .

2

3

4

5

6

7

8

9

I • 10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

~

'-

XAVlER BECERRA Attomey General of California JANICEK. LACHMAN Supervising Deputy Attorney General DANIEL D. MCGEE Deputy Attorney General SL'E.te Ba1·No. 218947

1300 I Sll'eet, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (9.16) 322-6115 Facsimile: (916) 324-5567

Attorneys for Complainant

BEFORE TI-lE DEPARTMENT OF CONSUMER AFFAIRS

FOR THE BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

In the Mnttel' of l:he Accusation Against: Case No. 77/15-5619

TN SMOG- CHECK HI.EN MAN.H NGUYEN, OWNER 1.202 F. Stt"eet · FIRST AMENDED ACCUSATION Li>s Banos, CA 93635

Auto!UotivB Repnir Deale!' Reg. No. ARD 273679 Smog Clteck Station Liceuse No. RC 273679 ,Lamp Stat~on Llcense No. L.S 273679 Brake Station License No. 'BS 273679

and

BIEN MANII NGUYEN ~059 Ln<ldie Way San Jos~, CA 95121

Smog Checl( Iuspectot· License No. EO 631512 Smog CJ1eck Repair 'I'echnicinn License No. EI 631512 (forme~·Jy Advanced Emission Specialist Technician License No. EA 63151.2) Brake Adjuster License No. BA 631512 Lamp Adjuster License No. LA 631512

Respondents.

Ill

Ill

Ill

cr1

N SMOG. CHECK) FIRST AlvfENDED ACCUSATION I

·;

Complainant alleges;

2 PARTIES

3 I. Patl'ick Dorais ("Complainant') brings this First Amended Accusation solely In his

4 official capacity as the Chiefofthe Bureau of Automotive Repair ("Bureau"), Department of

5 Consumer Affa~rs. Tbis First Amended Accusation t'eplaces in its entlrety Accusation No. 77/15-

6 56 I 9 filed on Pebruary 15, 2017.

7 TN Smog~ Claeclq Hi en Man I! Nguyen, Owner

8 2. On or about July 16, 2013, the Director of Consumer Affairs C'Dlrector") issued

9. Automotive Repair Dealer Registration Number ARD 273679 ~'registration") to HienManh

10 Nguyen ("Respondent"), owner ofT N Smog- Check. The regis!l·ntion was in f\111 force and

11 effect at all times relevant to the charges brought in the First Amended Accusation and will expire

r2 on July 31, 2017-, unless renewed.

13 3, On or about Septembe1' I I, 20 I 3, the Director issued Smog Check Stntlon License

14 Number RC 273679 to Respondent. Ths smog check station license was in full fo!'ce and eff-ect

15 nt all times relevartt to the charges brought in the Flr~t Amended Accusation a11d will exptre on I

.16. July31,2017,unlessrenewed.

17 4. On or about August6, 2013 1 the Director Issued Lamp Station License Number LS

18 273679 to Respondent. The lamp stntion Hcet\se was in full force and effect at all times relevant

19 to the charges bl'ought in the First Amended Accusation and will expire on July 31, 2017, unless

20 renewed.

21 5, On or about August 6, 2013, the Director issued B1·ake Station License Number BS

22 '.2.73679 to Respondent. The brake station license wus in full force and effect at all times relevant

23 to the chElrges brought in the Fh·st Amended Accusation and ·will expire on July 31,2017, unless

24 renewed.

25 Hleu Manh ~guyeu

26 6, Or1 Ot' about November 1 G, 2009, the Director issued Advanced Emission Specialist

27

2&

Technician License Number BA 631512 to Respondent. Respondent's ndva_nced emission

specialtst technician license was due to expire on July 31, 20 13, .Pursuant to Title 16, Culifornin

·ll-----~~-2--~--+ (T N SMOG· CHECK) FIRST A!'v!ENDBD ACCU.SATlON-

1

2

3

4

5

6

7

I . 8

9

to

ll

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

II

Code of Regulations, section3340.28, subdivision (e), the 1ice11se was renewed, pursuant to

Respondent's election, as Smog Check Inspector ~icense Numbe•· EO 631512 and Smog Check

Repair Technidan License Number EI63!512 ("technrcian licenses"), effective July 18, 2013. 1

Respondent's technician licenses will expire on July 3 I, 2017, unless renewed.

7. On or about December 10, 2012, the Director iss~ted Brake Adjuster Llce11se Number

BA 631 S 12 m Respondent. The brake adjustet•license. expll'ed on July 31, 2016, an.d has not been

renewed.

8. On or about December 11,2012, the Director issued !--ampAdjustet• License Number

LA 631512· to Respondent. The lamp adjuste1· license expired on July 3l, 2016, and was canceled

on September 4, 2016.

·JURISDICTION

9. Business and Professions Code ("Bus. & Prof. Code'') section 9884.7 provides that

the Direct01; may revoke an nut0motivc repair dealer registration.

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

vafld reg1strat'ton shall not deprive the Director of jurisdiction to proceed with a disciplin!lry

proceeding against an automotive repair de flier or to render n decision temporarily o1· peru1anently

invalidating (suspending or revoking) n registration, ·

II. Bus. & Prof. Code section 9889.1 provides, in pertinent rart, that the Director may

suspend or revoke any license issued under Articles 5 and 6 (commencing with section 9887.1) of

the Automotive Repair Act.

· 12. Bus. & Prof. Code section9889.7 provides, in pettinent pa1t, that the expit·atlon or

suspension of a license by operation of law·or by Ol'der 9r decision of the Directot· or a cotu't of

law, or the voluntary sutTende•· of a license shall not depl'!ve the Directol' of jurisdiction to

proceed with any disciplinary proceedings.

Ill

1 Effective August 1, 2012, title 16, CaHfomia Code of Regulations, sections 3340.28, 3340.29, and 3340.30.wet·e amended to implement a liceuse restructtu·e ft·om the Advanced Emission Specialist Technician (EA) license and Basic Area (EB) Technician license to Smog Check Inspector (EO) Ucense and/OL' Smog Check Repair Technician (EI) license,

: N SMOG • CHECK) FIRST AMENDRD ACCUSA TJON I I

I

I I·

13. Health and Safety Code ("Health & Saf. Code") section 44002 provides, in pertinent

2 part, that the Director has all the powers and authority granted under the Automotive Repair Act

3 . for enforcing thti Motor Vehicle Inspection Program.

4

5

6

7

B

9

10

II

12

B

f4

15

16

17

18

!9

20

21

22

23

24

25

26

27

28

II

14. Health & Saf. Code section 44072.6 provides, In pertinent part, that the expiration or

' suspension ofa license by operation of law, ·or by order or deolsion of the Director of Consumer

Affairs, or a court of Jaw, or the voluntary surrender of the .license shall not deprive the Director

of jurisdiction to proceed with disciplinary action.

15. Health & Saf. Codo section 44072,8 states that when a license has been revoked or

suspended following a henr.ing under thls article, any additional license issued under this chaptet'

in the t~ame of the licensee mny be Iik~wise revoked or suspended by the director.

16, Title 16, California Code ofRegula1ions e'CCR"), section 3340.28, subdivision (e),

states that "(u]pon renewal of an unexpired Basio Area Tecnnlcian license or an Advanced

Emission Speciallst Technician license issued prior to the effective date of this regulation, the

licensee may apply to r(!new as a Smog Check Inspector, Smog Check Repair Technician, or.

both.

Ill

STATUTORY PROVISIONS

17. Bus. & Prof. Code sect! on 9884,7 states, in pertinent part:

(a) Tho pirector, where tlH~ automotive repah· dealer cnm;ot show there was n bona fide error, m!ly deny, suspend, revoke or place on pt'obatron the t·egislration of an automotive repair dealer for any of the following acts or omissions related to the conduct of the business of the automotive repair deal or, which are done by the automotive repair dealel' or any automotive technictan, emplo;yee, partner, officer, or member of the ~1.1tcmotive repair dealer.

. . (I) Making ot· authorizing in any manner or by uny means who.tevet· any

statement wl'itten or oral which is untrue or misleading, and which is knownj or which by the exercise ofreasonable care should be known, to be untl'ue ormisieadh)g.

(3) Faillng 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.

(4) Any other conduct that constitutes fraud.

(T ~SMOG. CHECK) FIRST AMENDED ACCUSATION f I

1

2

3

4

5

6

7

8

9

ro II

12

13 :

14

15

16

, .... 17

18

l9

20

21

22

23

24

25

26

27

28

II

Ill

Ill

(6) Failure in any material respect to comply with the provisions of this chapter oJ• regulations adopted pursuant to it.

(c) Notwithstanding fmbdivlsion.(b), the dii-ector may sus~end, revoke or place on probation the registration fot· all places of business operated m this state by an automotive repai1· dealer upon a findi11g that the automotive repair dealer has, or is, engaged in a course of repeated and wHiful vi"olatlons ofthis chapter, or regulations adopted pursuant ,to it.

I 8. Bus. & Prof. Code section 9884.9, subdivision (a), states, in pertinent prut:

The automotive rep!lir dealer shall give to the customer a wdtten estimated pt'ice fnr labor and parts twcessat·y for a specific job. No work s!ta.U be · done 1111d no charges shall accrue before authorlzatiol1 to proceed is obtained from the customer ..•.

19. Bus. & Pro-f. Code section 9889.3 states, in pertinent p11rt:

The director may suspend, revoke, ot· take other disofpilnary action against a license as provided in this article (Article 7 (commencing with section 9889.1) ofthe Automotive Repah· Act] if the licensee or any pat1ner, officer, o1· director thereof:

(a) VIolates any section of the Business and Professions Code which relates to !lis or her licensed activities. ·

(c) Vtolates any ofthe regulations promulgated by the director pursuant · to this chapter. .

. \d) Commits any act involving dishonesty, fraud,_ or deceit whereby another is iruured. · . :

(h) Violates or attempts to violate the provislo11s of this chapter relating to the particular activity for whioh he or she is Hcetlsed .. ,

20. Bus, & Prof. Code section 9887.1 states, In pertinent patt:

' The direotol' shall have the authority to issue licenses fo1· official lamp and brnke adjusting stations and sha11 license tamp and brake adjusters, 1l1e licenses shalt be issued in uccordance with this cbapter ru'ld regulations adopted by the director pursuant thereto ... Licenses may be renewed upon application and payment of the renewal fees if the application for renewal is made within the 30-day period prior to the dare of explt·ation. Persons whose licenses have expired shalt Immediately cease the activity reqlrlring a lice!lse ...

,: N SMOO- CHBCK) PIRST AMEND EO ACCUSAT!ON I I -------------------------------

I 2

3

4

5

6

7

I . 8

9

'10

11

12

13

14

15

16

17

IS

19

2(}

21

22.

23

24

25

26

27

28 I, I

II

21. Bus. & Prof. Code section 9888.3 states:

No pe1·son shall operate an "official" lamp or brake adjusting station unless a license tbcrefot· has been issued by the director. No person shall issue, or cause or permit to be issued, any certificate purporting to be an officlallan1p adjustment certificate unless he or she is a Jic~nsed lamp adJuster or an officinl brake adjustment certificate unless he or she is a licensed brake adjuster.

22. BllS. & Prof. Code sectic>n 9889.9 stnt~s that "(w]henmlY license has been revoked or

suspended following a hearl11g under the prov[sions oftl1ls c;rticle [Article 7 (commencing with

section 9889.1) of the Automotive Repair Act], any addltionalllcense issued under Articles 5 and

6 of this chaptel' in Hte name of the licensee may be likewise revoked or suspended by ·the

dit-ector.''

23. Bus. & Prof, ·Code section 22, subdivision (a), states:

· "Board'' as used in any provision of this Code, refers to the board in which the administration of the r,rovlsion is vested, and unless otherwise expressly provided, shall include "bureau,' "commissiotl,11 "committee," ''department," "division," ''examining committee," "program," and "agency."

24. Bus. & Prof. Code section 477, sltbdivision (b), states, in pertinent part, that a

"lioense11 Includes "registration'' nnd "certificate."

25. Health & Snf. Code section 44072.2 states, ill pertinent part:

The director may suspend, revoke, or take other disciplinary uction against a llccnsc as provided in this article If the llcensec, or any partner, officer, or tlil:ectol' thereof, does any of the: following:

(d) Comntits any act involving dishonesty, fraud, or deceit whereby another is inJured •.•

26. Title 16, CCR, scotian 3305, subdivision (a), state$, in pertinent part, that [a]ll

adjusting, inspecting, servicing, and repaidng ofbra!ce systems and lamp systems for the purpose

of issuing any certificate Of COlllpliance Ol' adjUStment Shall be performed in official stations, by

official adjusters.,."

27. Title 16, CCR, section 3308 states:

. An official station shali stop performing the functions for which it has been licensed when it no longer has the ~ervictls .of a licensed ncljustet·, or when its station llcerm.l has expired or has been surrendered, suspended, or revoked. 'The

(T

6N SMdG- CHECK) I:'IRST AMENDED ACCUSATlON f. I

2

3

4

5

6

7

8

9

10

11

12

l3

14

j5

station must dispose of materials related to its formerly licensed activity accordit1g to these provisions. .

\a) A11 official station that no longer has the service-s of a licensed adjuster shall immedtately remove or cover the official stntton sign lh accordance wiU1 subsection (b) of this section, If the station does not employ a licensed adjuster within 60 days, the station shall surrender Its official st1:1tlon li,_ense to the bureau and shall return to the bureau,all unused ceitlficates of adjustments bought by the station to carry out the function for which It Is no longer llcensed. .

(b) An official station that is no longer e.utlwrlzed to perform the function for which it has been licensed shaH remove or cover the sign pertaining to·the · licens~ function. A station that has a multipurpose sign_shall cover those portions of the sign that pe1tain to the functions for wh1ch It Is no; longer licensed.

(c) When nr1 official station liceuse has expired ot' has been surrendered; suspended, or revoked, the station shall retum to the bureau all unused ceztificates purchased by the station to carry out the function for which lt is no longer licensed.

COST RECOVERY

28. Bu~. & Prof. Code section 125.3 provides, in pettinent part, that a Eloard may request ·

the administrative law judge to direct a Jicentlnte found to have committed a violation or

violations ofthe licensing act to pay a sum not to e:<_ceed the reasotl.llble costs of the investigation

and enfotc~ment of the case.

"SECREI SflOPPER11 OPERATION

16 29. The Bureau received on eriforcement tip that TN Smog- Check was perfonntng

17 improper brake and lamp l.nspections.

18 30. On or about April2, 2015, an undercover operator of the Bureau ("operator") took the

19

20

21

22

23

24

25

26

27

28

Bureau's 2007 Toyota toT N Smog- Clleck and met with Respondent. The operator requested

smog, bl'ake, and lamp inspections on the vehicle. Respondent had the opel'ator sign a repair

ol"der, but did not provide hlm with a copy. The operator ebserved Respondent perfonn the smog

inspection· on the vehicle. Respondent then IL1rned on the vehicle's lumps, and showed the ·

operatOl' that the left front headltght was not working with th(;) high beams activated. Respondent

told the. operator to hav~ !he lights fixed and to return to the facility for the brake und hmip_

inspections. The operator paid Respondent $40 for the smog check inspection and r~eived

copies of an invoice at1d veh[cle inspection repo1t. The operator left the facility. 'The Bureau

found that tbe left front headlamp on the vehicle WflS not working and determined that there was a

cut wire behind the head lamp, which they repaired.

11--~~--7 -----1-(T N SMOG· CHECK) FillST AMEND EO ACCUSATION

I 31. At a.pproximate ly 1020 hours that same day, the operator returned the vehicle to the

2 facility and met with Respondent. The operator told Respondent that hls brother fixed the

3 headlamp and it was working correctly. Respondent performed the lamp inspection on the

4 vehicle. After chec.ldrtg the lamps, Respondent drove the vehicle to the next block, made au.

5 turn, and returned to th~ facility. The operator.nl;)vel' observed Respondent remove the wheels

6 from the vehicle or inspect the brakes. Respondent had the operator sign another repair order, but

7 did not give him a copy. Respo(ident then filled out the bmke and lamp certificates. The operator

8 pald Respondent $60 and recel ved the invoice copy oft he repair order and copies of Certificate of

9 Bl'ake AqjustmelltNo. and Certificate ofLrunp Adjustment No. ,

lQ F!RST CAUSE l!PR DISCJJ!LINE

11 (Untrue or Misleading Statements)

12 32. Respondent's J"egistration is subject to dlscipll11ary action pursuant to Bus, & _PL·of.

13 Code section 9884.71 subdivision (a)(l), in that Respondent made or authorized a statement which

14 . he knew or In the exercise of reasonable care should h~ve known to be untrue or misleading, as

15 follows: Respondent cer.liti~d under penalty ofpetjury on Brake Certificate No. that

16 h~ performed the appllcab!e inspection of the brake system on the Bureau's 2007 Toyota as

17 specified by the Bureau and in accordance wlth Title 16 of the Califomia Code of Regulations

18 and the Business and Professions Code. In fact, Respondent failed to perform a complete brake

19 iospection on tbe vehicle.

20 SECOND CAUSE FOR DISC(PLINE

21 (Failure to P.t'ovldc Custon1er with Copy of Signed Document)

22 . 33, Responclent' .s registration fs subject to discipllnary actioll pursuant to Bus. & Prof.

23 Code section 9884.7, subdivision (a)(3), in that Respondent failed to provide tlte operutor with

24 copies ofthe repair Ol'dGrs.

25 THIRD CAUSE FOR DISCIPLINE

26 (Frnud)

27 34. Respondent's registt·alion is subject to disciplinary actlon pursmwt to Bus. & Prof.

28 Code section 9884.7, subdivision (a)(4), in that Respondent committed an act constituting fh'IUd,

:It-~--~--~"'---~----"-"-----+ (1' N SMOG " CHECK) FIRST AMENDED ACCUSATION

I I

I .

1 · as follows: Respondent obt£1ined payment from the operntor for perfo11ning the applicable

2 inspection of the brake system on the Bureau's 2007 Toyota as specified by the Bureau nnct ln

3 accordance with the Vehicle Code. ln fact, Respondent failed to perf01m the brake inspection in

4 compliance with Bureau Regulations or the Vehicle Code.

5 J,i'OURTH CAUSE FOR DISClPLIIm,

6 (ll'allul·e to Comply with the Bus. & Pl'of, Code)

7 35. Respondent's registration ·is subject to disciplinaty action pursuant lo Bus. & Prof.

8 C'.ode section 9884.7, subdivision (a)(6), ln that Respondent failed to oomply with sectlo11 9&84.9,

9 subdivision (a), of that Cod~ in a material respect, ns follows; Respondent failed to provide the

10 operator with R wl'itten estimate for the smog, brake and lump inspections on tho Bureau's 2007

Jl Toyota.

12 JJ'lllTH CAUSE FOR DISCIPLINE

13 (Violations of Regulations)

14 36. Respondent's registration is subject to disciplinary action purswmt to Bus, & Prof.

15 Code section 9884.7, subdivision (a)(6~, lt1 that Respondent falled to comply witb provisions of

16 Title ~6, California Code of Regulations, in the: following material respects:

17 a. . Titre 16, CCR, section 3305, subdivision (R): Respondent falled to perform the

18 inspection of the bra~e system on tbe Bureau's 2007 Toyota in accordance with the

19 specifications, instructions, and directives issued by the Bureau and the vehicle manufacturer, as

20 set forth In paragraph 32 above. .

21 ·b. Tltlc 16. CCR, section 3321, snbdlv!sion (c}.!2): Respondent issued Brake

22 Cctilfkate No. us to the Bllreau's 2007 Toyota when the brnkc system on the vchic!e

23 nacl not been completely tested Ol' inspected,

24 /!!

25 Ill

26 II!

27 fll

28 Ill I

I . (:"N SMOG. CHECK) FIRST AMENDED ACCUSATION I I

SlXTTI CAUSE FOR DISCIPLINE

2 (Failure to Comply with the Bus. & Prof. Code)

3 37. Respondent's brake station and brake adjuster licenses are subject to disciplinary

4 action pursuant to Bus. & Prof. Code section 9889.3; subdivisions (a) and (h), in that Respo11dent

5 violated Bus. & Prof. Code section 9884.9, subdivision (a), relatlng to his licensed activities, ns

6 set forth in paragraph 35 above.

7 SEVENTH CAUSE FOR DISCIPLINE

8 (li'nllllre to Coniply with Regulations)

9 3 8. Respondent's brake station and brake ~cUuster licenses are subject to disciplinary

10 action purswmt to Code section 9889.3, subdivision (c), in that Respondent failed to comply with ·

11' Title l-6, CCR, sections 3305, subdivision (a), at1d 3321, subdivision (c)(2), as set forth in

12 paragraph 36 above.

13 EIGHTH CAUSE FOR J)ISCIPLINE

14 (Dishonesty, Fraud, or Deceit)

15 39. Respondent's brake and lamp station Rnd bmke and lamp ac!juster licenses are subject

t 6 to disciplinruy action pursuant to Bus. & Prof. Code section 98 89.3, subdivision (d), in that

17 Respondent committed ~;~cts invo!vh1g dishonesty, fraud, or deceit whereby another was injured,

18 as set forth in paragraphs 32 and 34 above,

19 Nl.NTH CAUSE FOR DISCIPLINE

20 (Dishonesty, Ji'raud, ot· Deceit)

21 · 40. Respondent's .smog check station and technician licenses are subject to disciplinary

22 action pursuant to Health & Saf. Code section 44072.2~ subdivision (d), in that Respondent

23 committed dishonest, fraudulent or deceitf\d acts whereby !In other is injured, as set forth in

24 paragraphs 3.2 and 34 above.

25 · Ill

26 Ill

27 Ill

28 Ill

~~----------------(-~-~-S-M_O_G_· C-H~E·C_K_) -FI-R-ST_A_ME_ND._ED_A_CC_U_S_A~T-10-N-f I

:4

3

4

5

6

7

8

9

10 .

11

12

13 i I

14

15

16

17

18

19

20

21

22

Z3

24

25

26

27

28

II

UNDERCOVER OPERATION #1; 7002 CHEVROLET

4 I. Ou or about November 19, 20 !5, the undercover operator, identified in paragraph 30

above ("operator"), took the B11reau's 2002 Chevrolet toT N Smog- Check and met with

Respondent. The operator requested smog, brake, and lamp inspections on the vehicle, The l'ight

front and left rear breke rotors on the Bureau-documented vehlcle were below the manLJfacturer's

minimum thickness specifications and both front headlamps were out of adjustment. Respondent

did not provide the operator with a written estimate for the inspections. The operator observed

Respondent perform a smog inspection on the vehide. Respondent then turned the hendlamps on,

walked around the vehicle looking at all of the lamps, ~:~nd c.heckcd' the lamps with what appeared

to be nn aiming device, Respondent drove the vehicle down the street to the next block, made a

U-turn, and returned to the rep~tir facllity. The operator neve1· observed Respondent remove the

wheels on the vehicle·. Respondent had the opet~ator sign a repair order, but did not give him a

CQpy. Respondent then fllled out the brake and lEimp certificates. The operator.paid Respondent

$ll0 and received th~ Invoice copy of the t•epair order and copies of a vehicle lnspection re.port,

Certificate ofBI'Bke Adjustment No. , and Certificate of Lamp Adjustment No.

. The operator left the facility.

42. On or about November 25, 20 l5, the Bureau inspected the vehicle and found that the

headlamps were adjusted coo-~ctly; however, none of the wheels bad been removed, indicating

that A complete bmke inspection had not been perFormed on th.e vehicle. Fwiher, the right front

and left rear brake. rotors were not within manufacturer's specifications ..

TENTH CAUSE FOR DJSC{rLINE

(Ulltl'ue or M!alcad!ng Stntewents)

43. Respondent's regiswition is subject to disciplinary action pursuant to Bus. & Prof.

Code section 9884.7, subdivision (e,)(l ), in that Respondent made or authorized a statement which

he L{llew or in the exercise of reasonable care should have known to be untrue or misleading. as

follows: Respondent ce1tifted under penalty ofpe1jury on BrE~k.e Ce1tificate No. that

he perfotmed the npplicuble inspection, adjustment, or repair ofthe brake system on the Bureau's

2002 Chevrolet. lu fact, Respondent failed to perform a complete brake inspection on the

11 ~ (TN SMOO- CHECK) FIRST AMENDED ACCUSATION

I i

' I

• I

t. l-

2

3

4

5

6

7

8

9

10

11

1;2

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

I!

vehicle, Further, Respondent failed to detem1ine th~t the right front and left rear brake rotors

were not within manufacturer's specifications.

ELEVENTH CAUSE FOR DXSCIPLINE .

(Fallure toProvlde Customer with Copy of Signed Document)

44. Respondent's registt·ation is subject to disclplinaty action pursuant to Bus. & Prof.

Code section 9884.7, subdivision (a)(3), in that Respondent failed to provide the 'operator with a

copy of the repair ot-det.

TWELFTH CAUSE FOR DISCrpLlNE

(Fraud)

45. Resportdct,t's registration is subject to discipll.nnry action pursuant to Bus. & Prof.

Code section 9884.7, subd!vlsion (a)(4), in that Respondent oommitted au act constituting fi·aud,

as follows: Respondet1t obtained payment from the operator for performing the applicable

inspection, adjustm,ent, Ol'tepair ofthe brake system on the Bureau's 2002 Chevrolet as specified .

by the Bureau and in accotd811Ce with the Vehicle Code. In fact, Respondent failed to perform

the necessary inspection, adjustment, or repairs in oompllance with Bureau Regulations or the

Vehicle Code.

TH.lRTEENTH CAUSE FO.R DISCIPLINE ·

(Failure t-o Comply with toe B11s. & Prof. Code)

46. Respondent's registration is subject to disciplilmy action pursuant to Bus. & Prof.

Code section 9884·.7, subdivision (n)(6), Jn that Respondent failed to comply with section 9884.9,

subdlviston (a), ofthat Code in nmatet'inl respect, 1\S follows: Respondent fai.led to provtde'the

operato,r with n written estimate for tl\e smog, brake and lump inspections on the Bureau's 2002

Chevrolet.

J/1

Ill

Ill

Ill

Ill

(TN SMOG· CHECK) FIRST AMENDED ACCUSATION I

FOURTEENTH CAUSE FOR DISCIPLINE

(Violations of Regulations)

47. Respondent's registration is subject to disciplinary action pursuant to Bus. & Prof.

Code section 98M. 7, subdivision (a)(6), in that Respondent failed to comply with provisions of

Tltle 16, Cl\llfom!a Code of Regulations, in the following material respects:

a. Title 16, CCR, section 3305, S\th~livlsion (rt): R~spondent failed to perform tl1e

inspection of the brake system on the Bureau's 2002 Chevrolet in accordance wjth the

specltications, instructions, and directives Issued by the Bureau and the vehicle manufacturer, as

set forth in paragraph 43 above.

b. Title 16. CCH, section 3321, subdivision (c)(2): Respondent issued Bt•ake

Certificate No. as to the Bureau's 2002 Chevrolet when the brake system on the

vel1icle had not been completely tested or inspected.

FIFTEENTH CAUSE FOR DISCIPLINE

(Failure to Comply with the Bus. & Prof. Code)

48 .. Respondent's brake statio11 and brake adjuster licenses are subject to disciplinary

uction pursuant to Bus. & Prof. Code section 9889.3, subdivisions (a) and (h), in that Respondent

violated Bus. & Prof .. Codesection 9884.9, subdivision (a), relating to his licensed activities, as

set forth in paragraph 46 above.

SIXTEENTH CAUSE FOR DISCIPLINE

(Failure to Comply with Regulations)

49. Respondent's brake station and brake adjuster licenses are subjeot to disciplinary

nctlot\ pursuant to Code section 9889.3, subdivision (c), in that Respondent failed to corn ply with

Title 16, CC~ sections 3305, subdivision (a), and 33.2 I, subdivision (c)(2)) as set forth in

paragt·aph 4 7 above.

SEVENTEENTH CAUSE FOR DISCIPL1NE

(Dishonosty, Fraud, or O~ceit)'

50. Respondent's brake and lamp station and brake nnd lamp adjuster licenses are sllbject ·

to disclpllnu1y action putsuw1t to Bus. & Prof. Code !lection 9889.3, subdivision (d), in tl1t1t

13 (TN SMOG- CHECK) FrRST AMENDED ACCUSATION I

2

3

4

5

6

7

s 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

II

Respondent committed acts Involving dishonesty, fraud, or deceit whereby another was injured,

as set forth in par11graphs 43· and 45 above.

EIGHTEENTH CAUSE FQR DISCIPLINE

(Dishonesty, Fraud, or Deceit)

51. Respondent's smog check station ~nd technlchm licenses are subject to disciplinary

action pursuant to Health & Snf. Code section 44072.2, subdivision (d), in that Respondent

committed dishonest, fra:Jdulent or deceitful acts whereby another is injured, as set forth in

paragraphs 43 and 45 above.

UNDERCOVER OPERATION #2: 2002 FORD

52. On or about December II, 2015, the undercover operator, Identified in para, graph 30

above ("operator"), took the B~Jreau' s 2002 Ford toT N Smog- Check BJld met with Respondent.

Tile operator req~1c::stcd smog, brake, and lamp inspections on the vehicle. The right front and left

rear bra.ke rotors on the Bureau-documented velliole were below the manufacturer's minimum

thickness specifications and both ft·ont head I !Imps were out ofacljustment. R~spondent did not

provide the opcrutoL' wltb a written c:stimat" l'ol' the it~spect!ons. The operator observed

Respondent perform a smog inspection on the vehicle. Respondent then turned the head lamps on,

walked Rround the vehicle lookin~ at all of the lamps, and checked the lamps with what appeared

to be an uiming device. Ref!pondent drove the vehicle down the street to the nex.t block, made a

U-turn, and retitmed to the repalr facility. The operator never observed Respondent remove the

wheels on the vehlcle. Respondent had the operator sign a repair order, but did not pwvide him

with a copy. Respondent then .filled out the brake and lamp certificates. The op~mtor paid

Respondent $100 and rccelved the invoice copy of the repair ordel' and copies of a vehicle ·

lnspectiolll'¢porl, Cerlifloate of Br&ke Adjustment No .. , and Certificate of Lump

Adjustment No. . The operator letl the facility. ·

53. On or ubo~1t December 22, 2015, tbe: t3ttre(l.u inspected the vehicle EJnd found that the

headlamps hAd been adj~Jsted; ·hoWtlVlH, they wer·e not ndjlTsted to mamtfact~trer's specifications.

Ftlrlher, none of the wheels had bcont•ct:noved, indlcatlng that a complete brake i11spect\on had

Ill

(TN SMOG· CHECK) FIRST AMENDED ACCUSATION

not been petfol'med on tbe vehiclt'l, and the right front and left rear brake rotors were not witl.1in

2 manufacturer's specifications.

3 NINETEENTH CAUSE FOR DlSCIPLli'ill

4 (Untl'ue or Misleading St!ltements}

S 54. Respondent's registration is subject to disciplinal'y action pursuant to Bus. & Prof.

(5 Code section 9884.7, subdivision (a)(l), in·tbat Respondent made or autllo~ized statements which

7 he knew or in the exercise of reasonable care should have known to be untrue or misleading, as

8 follows:

9 a. Respondent certified under penalty of peljury on Brake Cet·tificate No.

10 that ho performed the applicable inspection, a<ljustment, Ol'l'epait· of the brake system 011 the·

11 Bureau's 2002 ~ord. In fact, Respondent {~!led to perform a complete b1·akl! inspection on the

12 vehicle. Furthet·, Respondent failed to determine that the right front and left rear brake rotors

13 were not withln manufacturer's specifications.

14 b. Respondent ce1iified under penalty of petjury on Lamp Cetiificate NG. . .

15 thtlt the applicable a<{justment had been pe1·formed on tl1e lighting system on the Bureau's 2002

16 Ford. In filet, Respondent failed to adjust the heAd!amps to manufacturer's specifications.

17 TWENTIETH CAUSE FOR DISCIPLINE

J 8 (Fai!UJ;e to P.rovid e Cus to mel' wltll Copy of Signed DocUiuent)

J 9 55. Respondent's registration is subject to disciplinary action pursuant to Bus. & Pl'Of.

20 Code section 9884.7, subdivision (a)(3), in that Respondent failed to provide the operator wlth a

21 copy of the 1·epah· order.

22 TWENTY-.lt'IHST CAUS!)I FORDISCJJ?LINE

23 (Fmud)

24 56, Re.spondent's registration is subject to disciplinary action plll'suant to Bus. & Prof.

25 Code section 9884.7, subdivision (a)(4), in that Respondent comlllittecl an act constituting fl•aud,

26 as follows: Respondent obtained payment from the operator for pet'fotming the applicable

27 Inspection, adjustment, or repalr of the bm~e and lighting systems on the Bureau's 2002 Ford ns

28 specified by the Bun~au and ln accordance with the Vehicle Code. In fnct, Respondent. failed to

11-----· _l.'l ----l

(TN SMOG- CHECK) FlRST AMENDED ACCUSATION

I

2

3

4

j

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ll

perform the necessary inspe~;tion, adjustment, or repairs in compllanco with Bw·enu Regulations

or the Vehicle Code.

T:WENTY-SECOND CAUSE FOR DlSCIPJ.,INE

.(Failure to Comply with the Bus, & Prof. Code)

57. Respondent's regi·stration is subject to discipllnat·y action pursuant to Bus. & Prof.

Code section 9884.7, subdivision (a)(6), in thElt Respondent failed to comply with section 9&84.9?

su~ivision (a), of that C9de ln a matedalrespeat, as follows: Respondent failed to provide the

operato1· with a written estimate for the ·smog, brake and lamp inspections on the Bureau's 2002

Ford.

· TW.ENTY-TijiRIJ CAUSE FOR DISCIPLINE

(Violations of Regulations)

58. Respondent's registration is subject.to disciplinary action pul'suant to Eius. & Prof.

CodD se~tion 9884.7, subdivision (a)(6), in that Respondent failed to comply with p1·ovisions of

Title 16, California Code of Regu!ntions, In the fa llowi11g materia1l'espects:

a. Title 16, CCR, section 33051 subdlylsion {n): Respondent failed to petform the

inspection ofthe brake system and inspection or o.djustment of the lighting system on the

Bureau's 2002 Ford in accordance with the specifications, instructions, and directives Issued by

the Bureo.ti and the vehicle munufacturer.

b. Section 3ll6, subdivision (d)C2l: Respondent issued Lamp CettlfiGnte No.

as to the Bureau's 2002 Ford when all of the lamps, lighting equipment, and/or

relatea electl'iMl systems on the vehicle were not in compliance with Bureau regulations.

c. Title 16, CCR. section3321. subdivision (c)(2): Respondent Issued Brake

Ce1tiflcate No. as to the Bureau's 2002 Ford when the bral~e system on the vehicle

had not been completely tested or inspected,

TWENTY"FOURTH CAUSE FOR DISCIP!-JNE

(FAilure to Comply with the Bus. & Prof. Code)

59. Respondent's bmke and !amp station atld brake and lnmp adjuster licenses are subject

to disciplinary nctlon pursuant to Bus. & Prof. Code section 9889.3, subdivisions (a) and (h), in·

16 . I (TN SMOG- CHECK) FIRST AMENDED ACCUSATION I

I that Respondent violated Bus. & Prof. Code section 9884.9, subdivision (a), relating to his

licensed activities, as set foiih in paragraph 57 above.

TWENTY-FIFTH CAUSE FOR DISCIPLINE

.{Failure to Comply with Regulations)

60. Respondent's brake and lamp station and brake and lamp adjuster licenses are subject

to disciplinary action pursuant to Code section 98B9.3, subdivision (o), in that Respondent failed

to con1ply with Title 16, CCR, sections 3305, subdivision (a), 3316, subdivision (d)(2), and .3321,

subdivision. (c)(2), as set fmih in paragraph 58 above.

TWENTY-SIXTH CAUSE FOR DISCIPLINE

(Dishonesty, Fraud, or Deceit)

61. Respondent's brake and lamp station nnd brake and lamp adjuster licenses n1·e subject

to disciplinary aotion pursuant to Bus. & Prof. Code section 9889.3, subdivision (d), in that

Respondent committed acts involving dishonesty, fraud, or decelt whereby another was injured,

as set forth in pamgl'aphs S4 and 56 above.

TW:{l!NTY-SEVENTH CAUSE FOR DlSClPLINE

(Di~honesty, Fraud, or Deceit)

62. Respondent's smog check station and technician licenses are subject to disciplinary

action pursu~mt to Health & Saf. Code section 44072.2, subdivision (d), in that Responcknt

committed dishonest, fraudulent or cleceilful acts whereby another is injured, as set fMh ill

pa~·agt·apbs 54 and 56 above.

UNDERCOYER OPERATION #3: 2005 PONTIAC

63, On or about January 8, 2016, the und.et:covet· operator, identified in paragruph 30

above (<~operator"), took the Bureau's 2005 Pontiac toT N Smog- Check and lt1Ct with

Respondent. The operata!' requested smog, brake, and lamp inspections on the vehlcle. The right

front and left rea~ brake rotors un the Btnenu-documented vehicle were below the manufacturer's

min!mum thickness specifications and both fl'o tlt head lamps were out of ac!J ustnumt. Respondent

did not provide the operator witb a written estimate for tl~e Inspections. The operator observed

Respondent perform a smog inspection on the vehicle. Respondent then tumed the headlamps on,

(TN SMOG· CHECK) fiRST Al'v,IBNDED ACCUSATION

I 2

3

4

5

6

7

8

9

10

II

12

13

14

15

'16

17

!8

'19

20

21

22

23

24

25

26

2·7

28

II

walked around the vehicle looking at n.ll of the lamps, and checked the lamps with what appeared

to be an ain.1ing device. Respondent drove the vehicle down the street to the next bloqk, made a

U-turn, and returned to the repah· facility. The operator never observed Respondent remove tbe

w11eels on the vehicle. Respondent had the operatot· sign a repair order, but d1d not give him a

copy. Respondent then filled out the brake an.d lamp certificates. The operator paid Respondent

$100 and received the in voice copy of the repair order and copies of a vehicle inspection report,

Certificate of Brake Adjustment No. , and Ce1tificate of Lamp Adjustment No.

. The operator left the facility.

64. On ot· about January 13, 2016, the Bureau inspected the vehicle and found that the

headlamp& were adjusted correctly; however, none of the wheels had beeitremoved,lndicating

thai a complete brake inspection hnd not bee11 pel'fonnecl on the vehicle. FUJthel', the l'ight front

and left rear brake rotoJ'S were not within mauuf!lcturer's specifications.

TWENTY -EIGHTH CAUSE FOR DISCIPLINE

(Untrue or Misleading Statements)

65, Respondent's registration is subject to disciplinary action purswmt to Bus. & Prof.

Code section 9884.7, subdivision (t1.)(1 ), in that Respondent made or authorized a statement which

he knew or in the exercise of reasonable care should hav~ known to be untrue or misleading, as

follows: Respondent certified under penalty of pe1jury on Brake Certificate No. that he

performed the applicRble inspectlon, adjustment, or repair of the bt·ake system on the Bureau's

2005. Pontiac. In fact, Respondent failed to perf:orm a complete brake inspection on the vehicle.

Fmther, Respondent failed to determine that the rJght fmnt and left rent· brake rotors wero not

within rnnnufacturds specifications.

T}YENTY-NINTH CAUSE FOR DJSCl.PLINE

(Failure to Provlde Customer with Copy of Signed D ocumeut)

66. · Respondent's registration is subject to disciplinary action pursuat\t to Bus. & Prof.

Cod~ section 9884.7, subdivision (a)(3), in that Respondent failed to provide the operator with a

copy of the l'epair ot•der.

If/

18 ('TN SMOG. CHECK) FIRST ArvfENDED ACCU~ATION I

I l

2

3

4

5

6

7.

B

9

10

II

12

13

14

IS

16

17

18

19

20

21

22

23

24

25

26

27

28

II

THIRTIETH CAUSE FOR DISCIPLINE

(Fraud)

67. Respondent's registration Is subject to disciplinary action pursuant to Bus. & Prof.

Code section 9884.7, subdivision (a)(4), in that Respondent comm1Fted an act constituting fraud,

as follows: Respondent obtained payment from the operator for performing the appltoable

inspoction, adj ustme11t, ot· repair oft he brake system on the Bureau's 2005 Pontiac as specified by

the Bureau and in acco!'dance with tbe Vehicle Code. In fact, Respondent failed to perform the

necessary inspection, aqjusttnent, or repairs in compliance with Bureau Regulations or the

Vehicle Code.

THIRTY-FIRST CAU§E FOR DISCIPLINE

(Failure to Comply wi~h tho Bus. & Prof. Code)

68. Respondent's registration is subject to disciplinary action pursuant to Bus. & Prof.

Code section 9884,7, subdivision -(a)(6), in that Respondent failed to comply with section 9884.9,

subdivision (a), of that Code In a material respect, r.s follows: Respondent failed to provide the

operator with a written estimate for the smog, brake and lamp inspections on the Bureau's 2005

Pontiac.

THIRTY -SECOND CAUSE FOR DlSCIPLINE

(Violations of Rcg_ulatious)

69. Respondent's registration is subject to dlsclpllnary action pursuant to Bus, & Prof.

Codo section 9884.7, subdivision (a)(G), In that Respondent failed to comply with provisions of

Title 16, California Code ofRegu[ations, in the following material respects;

o.. Title 16, CCR, section 33Q5, subdll:l§!on (n:},r Respondent failed to perform the

inspection oftbe brake system on tbe Bureau's 2005 Pontlac in accordance with the

specifications, lnstn.Jctions, and \lirectives issued by the Bureau and the vehicle mamtfacturer, as

set forth in paragraph 65 nbove,

b. Title Hi, CCR. section 3321, subdlvisltm (c)(2}: Respondent i$sued Brnke

Certificate No. as to the B~!reau's 2005 Pontiac when the bmke system on the vehicle

hn.d not been completely tested oL·l.nspected.

19

(TN SMOG- CHECK) FIRST AMENDED ACCUSATION

2

3

4

5

5

7

I . 8

9

10

II

12

.l3

14

15

16

17

18

l9

20

21

22

23

2.4

25

26

27

28

II

STATION INSPECTION OF NOVEMBER 8, 2016

74. On or about Novembe1~ 8, 2016, a representative of the Bureau conducted a statlon

inspection at1' N Smog -Check ns Respondent bad moved to a new location, requlrhig an

inspect1on of the facility and lamp and brake eqtJipment and reference materials. The

representative determined tl10t Respondent did not employ a licensed lamp or brak~ aqjuster and

that Respondent's brake and lntt1p adjuster licenses had expired on July 31, 20 I 6, as set forth in

paragraphs 7 and 8 above. Respondent failed the lamp and bmke inspections. lbe representative

re\'iewed tl1e station's brake and lamp cel'tificat~ books with Respondent as well as the individual

brake and tamp c!)rtifioates that had been issued. Respondent admitted to the representative that

he was tbe only person who had signed and issued the brake and lamp certificates. 111e

representative found that Respondent continued to certify vehicles after hls brake and lamp

adjuster licenses had expired and that Respondent l1nd illegally issued 39 lamp and brake

certliicatcs, as set fotih below. Tbe representative instrllcted R.espo!ident to cover all official

lamp and brake inspection signs until he employed a licensed brake and_lamp adjuster at tl1e

station. The brake and lamp certificates that Respondent Issued while unlicensed were:

;wnmp Cel'tillcate No. ll11te ofissuance

LA 2245612. LA22456J3 LA2245614 LA 2245615 LA 2245616 LA 2245617 LA 2245618 LA 2245619 LA 224562.0 LA 2245621 LA 2245622 LA 2245623 LA 2245624 LA 2245625 LA 2245626 LA 2245627 l,A 2245628 LA 2245629 LA 2245630 LA 2245631 . Ill

August l, 2016 Augusts., 2016 A\rgust 8, 20 16 August 9, 20 J 6 Atigust 1·3, 2016 August 16,20\6 August 22, 2016 August 22, 2016 August 24, 2016 Atlgt!S t 26, 2016 At1gust 25, 2016 August 26, 2016 Augt1st 29, 2016 August 30, 2016 September l, 2016 Septembet· 9, 20 I G Septen1bet· 9, 2016 September l 0, 2016 September 12,2016 September 16, 201 G

LA .2245632 LA 2245633 LA 2245634 LA 2245635 LA 2245li36 LA 2245637 LA2245638 LA 2245639 LA 2245640 LA2245641 LA2245642 LA 2245643 lA 2245644 LA2245645 LA 2245646 LA 2245647 LA 2245648 LA 2245649 LA2245650

September 17, 2016 September 20, 2016 September 20, 2016 September21,2016 September 23, 2016 September 23, 20 16 September 28, 20 16 September 30, 2016 October 1 0, 2016 October II, 2015 October 13, 2016 October 17,2016. October 17,2016 October 20,2016 October25, ZOI G October 28,2016 October 31,2016 Novembet·2, 2016 November3, 2016

(~~SMOG -CHECK) FIRST AMENDED ACCUS~TtON t

; I

I ~ '

! i

I i

II I

THIRTY-THIRP CAUSE FOR DISCIPLINE

2 (Failm•e to Comply with tJta Bus. & Prof. Code)

3 70. Respondent's brake station and brake adjuster licenses are subject to dlscipl!nary

4 action pursuant to Bus. & Prof. Code section 9889.3, subdivisions (a) and (h), In that Respondent

5 violated Bus. & Prof. Code section 9884.9, subdivision (a), relating to his licensed activities, as

6 set..forth in paragraph 68 above.

7 THIRTY~FOURTH CAUSE FOR DISCIPLINE

8 (Failut·e to Comply with Regulati{}ns}

9 71. Respondent's bruke station and bmke ndjusteJ·llcenses ere Sl.lbject to disciplinary

10 actlon pursuaht to Code section 9889.3·, subdivision (c), in that Respondent failed to comply with

IT Title 16, CCR, sections 3305, subdivlslon (a), and 3321, subdivision (c)(2), as set forth in

12 paragraph 69 above.

"13

14

THIRTY -Fl"FTH CAUSE FOR DISCIPLINE

(Dishonesty, Fraud, or DtJceit)

15 72. Respond~nt's brake and lamp station and brake and lamp adjuster licenses are .subject

t 6 to disciplinary actlan·pursuant to ~us. & Prof. Code section 9889.3, subdivision (d), in that

17 Respondent committed acts involving dtshonesty, fraud, or deceit whereby another was injured,

l& as set forth in paragraphs .<55 and 67 above.

I 9 TIHRTY -SIXTH CAUSE FOR DISCIPLINE

20 (Disl10nesty, Frnud, or De~eit)

21 73. .Respondent's smog check station and technlc!an licenses al'e subject to disciplinary

22 action pursuant to Health & Saf. Code sectiol144072.2, subdivision (d), in that Respondent

23 committed dishonest, fraudulent or deceitful acts whereby another is injured, as set forth in

24 paragraphs 65 and 67 above.

25 Ill

26 Ill

27 · Ill

28 Ill

11-~--2_0 ___ . -----~1 / (TN SMOG· CHECK) FIRST AMENDED ACCUSAT£0N

2

3

4

5

6

7

I ! l 8 : 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ll

Bralte CertificRte No. Date oflssuance Brake Certificate No. Date of Issuance

BA 2273912 BA 2273913 BA 2273914 BA 2273915 BA 2273916 BA 2273917 BA 2273918 BA 2273919 BA2:473920 BA2273921 BA2273922 BA2Z73923 BA2273924 BA 2273925 BA 2273926 BA 2273927 BA2273928 BA 22739.29 BA 2273930 BA2273931

A~1gust 1,2016 August 5, 201 G August B, 2016 August 13,2016 August 9, 2016 August 16, 2016 August 22, 2016 August 22, 2016 August 24, 2016 August 26, 20 16 August 25, 2016 August 26,2016 August29, 2016 August 30, 2016 Septen1ber 1, 2016 September 9, 2016 September 9, 2016 Septembet· 1 0, 20 I G SeptembQr 12,2016 September 16, 2016

BA 2273932 BA 2273933 BA 2273934 BA 2273935 BA 2273936 BA 2473937 BA 2273938 BA 2273939 BA2273940 BA 2273941 BA 2273942 BA 2273943 BA 2273944 BA 2273945 BA 227.3946 BA2273947 SA 22739.48 BA 2273949 BA 2273950

September 17, 2016 September 20,2016 Septembel' 20, 2016 September 21,2016 September 23, 20 16 September 23, 2016 September 28, 2016 September 30,:2016 October 10,2016 October ll, 2016 October 13, 2016 October 17, 2016 October 17,2016 October 201 20 !6 October 25, 2016 October 28, 2016 October 31,2016 November 2, 2016 November 3, 2016

THIRTY-SEVENTH CAUSE FOR DISCJPLINE

(Untrue o1· Miste11diug Statements)

75. Respondent's reg!stration.Js subject to disciplinary action pursuant to Bus. & Pn'lf.

Code section 9884.7, SLibdivlslon (a)(l ). in that ReRpondertt made ot• authodzed statements which

he knew or in the exercise of reasonable care should have known .to be untrue or tuislending, as

follows;

a, Respondent certlfted lmder penalty of perjury on the lamp certiticates,lden~ified ln

pamgraph 74 above, that he porformed th~ npplicab!e inspections of the lighting systems on the

vehicles, described in the certificate-s, as specified by the Bureau and in accordance with Title 16

ofthe Califomin code of Regulation~ and the Business and Professions Code. ln fact,

Respondent issued the ce!tificntes when his lamp adjustei·IIcense had expired, in violation of Bus.

& Prof. Code S\:ctions 9887.1 nnd 9888.3 and Title I 6, CCR, section 3305, subdivision (n).

b. Respondent certified unclet· penalty of perjlH')' 0~1 the brake certificates, identified in

paragraph 74 above, that he performed the applicable inspections of the bt•akc systems 011 the

vehicles, described In the certificates, as specified by the 13urenu and in e.ccordance wW1 Title 16

of the CaBfornia Code of Regulations nnd the Buslnes~ and Professions Code. In fact,

22 (TN SMOG- CHECK) PlR.ST AMENDED ACCUSATION

Respondent issued the certificates when hfs brake adjuster license had exp[red, in violation of

2 Bus, & Prof. Code sections 9887.1 and 9888.3 and Title 16, CCR, section 3305, subdivision (a).

3 liDRTY-EIGH'rH CAUSE FORDISCIPLINJJ;

4 (Failure to Comply with the Code)

5 76. Respondent's regist1·at1on is subject to disciplinary action pursuant to Bus. & Prof.

6 Code section 9884.7, subdivision (a)(6), in that Respondent failed to comply with section~ 9887.1

7 and 9888,3 of that Code in the followl11g material respects: Respondent continued to lss~e lamp

8 nnd brake cettificates despite the fact tbat his lamp and brake adjuster licenses had ex.plred on

9 July31,2016.

10 ·THIRTY-NINTH CAUSE FOR DISCIPLINE

I 1 (Violatloris of Regulations) ·

12 77. Respondent's registration is subject to disclplinary action p111'SLIUnt to Bus. & Prof.

13 Code section 9884.7, subdlvtsfon (a)(6), in that Respondent failed to comply wlth provisions of·

14 Title 16 of the California Code: of Regulations in the following material respects:

15 a. Section 3305, subdivision (n): Respondettt continued to issue lt~mp and brake

16 ·-certificates despite the factlhat his lamp and brakfl adjuster licenses had expired on July 31, 2016.

17 b. S~cfion 3308: Respondent continued to perform his official func~ions as a lamp and

18

19

20

21

22

23

24

25

26

27

28

brake station, including issuing lamp and brake certificates, even though his bmke and lamp

adjuster licenses had expired on July 31, 2016.

FORTIETH CAUSE FOR DISCIPLINE

(F<~i1ure to Comply with the Bus. & Pro(. Code)

78. Respondent's brake and !amp station rmd brake and lamp acljuster licenses are subject

to disciplinary action pursuant to Bus. & Prof. Code section9889.3, subdivisions (a) and (h), In

that Respondent violated the provisions of Bus. & Pl'of. Code sections 9887.1 and 9888.3 relating

to lts licensed uctivities, as set fo1ih in paragraph 76 above.

til

Ill

Ill

\\ ____ 23 --~--+1 I! (TN SMOG- CHECK) FIRST AMENDED ACCUSATION I

FORTY ~FIRST CAUSE FOR DISCIPLINE

2 (Failure to Comply with Regulations)

3 79. Respm1dent's brake and lamp station and brake and lamp acljuster licenses are subject

4 to disciplinary action pursuant to Bus.'& Prof. Code section 9889.3, subdivision (c), in thElt

5 Respondent failed to comply with the provisioJts ofTitle 16, CCR, sections 3305, subdivision (a),

6 and 3308, as set f01th in paragraph 77 above.

7 FORTX~SECOND CAUSEFORDISCI;(>MNE

8 (Dishonesty, Fnmd, ot" Deceit)

9 BO. Respondent's smog check station and technlcian licenses are subject to disciplinary

10 aoijoo pursuatH to Health & Sa f. Code section 44072.2, subdivision (d), In that Respondent

ll committed dishonest, fhmdulent or deceitful acts whereby another is injured, as set fmih in

12 parag11tph .75 above.

13 OTHEB MATTERS

14 81. Pursuant to Bus. & Prof, Code section 9884.7, subdivision (c), the Di1'ector may

J 5 suspend, re.voke or place 011 prob<~tlon the registration for all places of business operated in this

16 state by Respondent Hien Manh Nguyen, owner ofT N Smog- Check, upon a finding that

17 Respondent has, or is, engaged !n a course of repeateD and willful violations of the Juws a11d

18 mguJutlons pertaining to an automotive repair dealer.

19 82. Pursuant to Health & Saf. Code section 44072.8, if Smog Check Station License

20 Number RC 273679, issued to Respondent Hi en Manh Nguyen, owner ofT N Smog- Check, ls

21 rev_oked or suspended, any additional license issued under Chapter 5 of the Health &. Saf. Code in

22 the name of said licensee, including, but not limited to, Smog Check lnspector License Number

23 EO 63l5l2 and Smog Check Repuir Technician License Number EI 631512 may be likewise

24 revoked oe suspended by the Director.

2~ 83. Ptu·suant to Bus. & Pl'Df, Code section 9889.9, if Lamp Station License Number

26 LS 273679, issued to Respondent Hien Manh Nguyen, ownet· ofT N Smog -·Check, is revoked

27 or suspended, any additional license issued undilt' Articles 5 nnd 6 of Chap tel' 20.3 of the Bus. &

28 Prof:~ Code h1 the name of sald licensee may be likewise t-evoked or suspended by the Director,

2tl

(TN SMOG. CHECK) FIRST AMENDED ACCUSATION

2

3

4

5

6

7

8

9

lO

11

12

13

14 .

15

16

17

18

19

20

21

22

23

24·

25

26

27

28

II

84. PursLiant to Bus. & Prof. Code section 9889.9, if Brake Station License Number

BS 273679, issued to Respondent Hien Manh Nguyenl ow net· ofT N Smog- Check, is !'evoked

OJ' suspended, any additional license issued under Articles 5 ancl6 of Chapter 20.3 of the Btls. &

Prof. Code in the name of snld licensee may be likewise t·evoked or suspended by the Dit·ector.

·ss .. Pursuantto Bus. & Prof. Code section 9889.9, !fBt·ake Adjuster License Number BA

63l512, issued to Respondent Hien Manh Nguyen, is revoked ot' suspended, any additional

license issued under Articles 5 and 6 of Chaptet· 20.3 of the Bus. & Prof. Code in the name of said

licensee may be likewise revoked or suspended by the Dit'ector.

86. Pursuant to Bus.&, Prof. Code section 9889.9, lf Lamp Aqjustel' License Number

LA 631512, issued to Respondent Hien Manit Nguyen1 is revoked ot' suspended, any additional

license Issued under Articles Sand 6 ofChaptet• 20.3 of the Bus. & Pl'of. Code in the name of said

Ucensee mu.y be.likewise revoked ot· suspended· by the Director.

PRAYER

WHEREFORE, Complainant requests that a hearing be held on !he matters herein alleged,

a~d that following the hearing, the Dit·.ectot· of Consumer A ffah·s issue .a decision:

l, Revokihg or suspending Automot'1ve Repair Dealer Registration Number ARD

273679, issued to H[en Manh Nguyen, owner ofT N Smog- Check;

2. Revoklng ot· suspending any other o.utotno(ive l'epair dcal~t· t'egistration issued to

Hien Munh Nguyen;

3. Revoking or suspending Smog Check Station License Number RC 273679, issued to

Hien Manh Nguyen, owner ofT N Smog- Check;

. 4. Revoking Ol' suspending uny ndditionallicenso issued under Chaplet· 5 of the Health

and Safety Code in the name ofHien Manh Nguyen, including, but not 1imi,ted to, Smog Check

Inspector License N1.1mber EO 631512 and Smog Check Rep"ir Technician License Number Er

63!512;

5. Revoking or suspending Lamp Station License Number LS 273 679, issued to Hi en

Manh Nguyen, ownel' of TN Smog- Check;

ill

2S . . I (TN SMOG- C{iECK) FIRST AMENDED ACCUSATION

I '

I' u I

6. Revoking or suspending Brake Station License Numbm· BS 273679, issued to HI en

2 Manh Nguyen, owner ofT N Smog- Check;

3 7. Revoking Ot' suspending Brake Adjuster License Number BA 631512, fssued to Hi en

4 Manh Nguyen;

5 8. Revoking ot• suspendii1g Lamp Adjuster License Number LA 631512, issued to Hie11

6 M!lnh Nguyen;

7 9. RevokLng or suspending any additional license issued under Articles 5 and 6 of

8 Chapter 20.3 of the Business and Professions Code in the nC\me of Hi en Manh Nguyen;

9 I 0. OL'dering Hi en Mnt1h Nguyen, lndlvldually, and as owner of TN Smog- Cheo~ to

10 pay the Dh·ector of Consumer Affairs the teasonable costs of the inve~tigation and enforcemetll of

11 this cnse, pursuant to Business and Ptofesstons Code section 125.3; and

12 II. Taking such other nttd furthc1· action·as deemed necessary and proper.

13

14

IS

16

17

18

19

20

21

22

23

24

25

26

27

28

DATED: !Wtted If; zo!f

SA201610297H

II

PATRICK DORAlS Chief Bureau of Automotive Repair Depmtment of ConsLtmer Affairs State ofCal!fornia · Complainallt

(TN SMOG· CHECK) fliRST AMENDED ACCUSATION

Date post:	21-May-2020
Category:	Documents
Upload:	others
View:	2 times
Download:	0 times

71 - California Bureau of Automotive...

Documents