4n - bar.ca.govbar.ca.gov/pdf/accusations/tc-285283_2018_04_18_dec.pdf · ard registration and smog...

BEFORE THE DIRECTOR OF THE DEPARTMENT OF CONSUMER AFFAIRS

BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

In the Matter of the, Accusation Against:

AI-LIEN THI LE, OWNER, DBA MONTEREY TEST ONLY Automotive Repair Dealer Registration No. ARD 285283 Smog Check Test Only Station License No. TC 285283

and

LAM TON NGUYEN Smog Check Inspector License No. EO 634579 Smog Check Repair Technician License No. EI 634579

Respondents.

Case No. 79/17-3528

OAR No. 2017120134

DECISION

The attached Proposed Decision of the Administrative Law Judge is hereby accepted and adopted by the Director of the Department of Consumer Affairs as the Decision in the aboveentitled matter only as to Respondent AI-LIEN THI LE, OWNER, DBA MONTEREY TEST ONLY.

This Decision shall become effective /4n f 18 , 2_018 I

DATED: _"'--'?; /~7__,_/~J ( __ I I GRACEARUPO RODRIGUEZ

Assistant Deputy Director Legal Affairs Division Department of Consumer Affairs

BEFORE THE DEPARTMENT OF CONSUMER AFFAIRS

FOR THE BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

In the Matter of the Accusation Against:

AI-LIEN THI LE, OWNER, dba MONTEREY TEST ONLY Automotive Repair Dealer Registration No. ARD 285283, Smog Check Test Only Station License No. TC 285283,

and

LAM TON NGUYEN, Smog Check Inspector License No. EO 634579 Smog Check Repair Technician License No. EI . 634579 . .

Respondents.

Case No. 79/17-3528

OAH No. 2017120134

PROPOSED DECISION

Administrative Law Judge Karen Reichmann, State of California, Office of Administrative Hearings, heard this matter on December 19, 2017, in Oaldand, California.

Deputy Attorney General Brett A. Kingsbury represented complainant Patrick Dorais, Chief of the Bureau of Automotive Repair, Department of Consumer Affairs. •

No appearance was made by or on behalf of respondents Ai-Lien Thi Le, Owner, doing business as Monterey Test Only, or Lam Ton Nguyen. Upon proof of compliance with Government Code sections 11505 and 11509, the hearing proceeded as a default pursuant to Government Code section 11520. 1

1 The accusation includes allegations and two causes for discipline against smog technician Lam Ton Nguyen. These matters were resolved as part of a stipulated settlement agreement shortly after the hearing,ancl are not included in this proposed decision.

The matter was submitt~d for decision on December 19, 2017.

FACTUAL FINDINGS

1. Complainant Patrick Dornis, Chief of the Bureau of Automotive Repair,· Department of Consumer Affairs (Bureau), brings the accusation solely in hill official capacity. '

. 2. Respondent Ai-Lien Thi Le, doing business as Monterey Test O11ly; operated a smog inspection facility in San Jose. Respondent holds Autom9tive Repair Derler .·.

·. Registption No, ARD 285283 and Smog Check Test Only Station License No. TC 2852$3. The ARD registration and smog check station license were issued in November 2016. The ARD registration and smog check station license are currently suspended; The Bureau · retains jurisdiction to discipline the ARD registration and smog check station license, .. pursuant to Business and Professions Cod~ section 118, subdivision (b). ·

3. Lam Ton Nguyen is a licensed as.a smog check inspector and ~mog,check • repair technic~an. He was employed a~ the facility to perform .smog inspections.

4. · Bmeau program representative Kim Smith performed an i~;estigati~ninto .· suspected fraudulent smog inspections performed at respondent's facility. Smith reviewed the Bureau's database of smog inspections and,discover,ed that the data for respondent's

. facility contained a higli ,number of the type of discrepancies which indicate the use of a fraudulent technique referred to as clean plugging. Clean plugging is the illegal practice of substituting one vehicle for another during the on-board diagnostic portion of a smog inspection.

5. Smithwas able to establish that clean plugging occurred by analyzing data provided by V(;)hib)e computers during smog inspection using the on~boai:d inspection system (OIS), which is the system used to test most 2000 and newer gasoline-powered vehicles and ·

. 1998 and newer dieselcpoweted vehicles. During' an OIS inspection; the computer system of the vehicle being.tested is connected to the Bureau's database by means ofa data acquisition device. All vehicles manufactured after 2005, and many manufactured earlier, have an

· . electrn11ic vehicle identification number (e VIN), which should be identical to the•vehicle · identification number physically present on the vehicle. If the vehicle has an e VIN stored in its compqter,the e VIN is transmitted during the OIS inspection. Vehicles also transmit a communication protocol during the OIS inspection, which is the language used by. the vehicles computer. The protocol is programmed during the manufacturing process and does not change. Vehicles of the same make, model, and year will the 1lse the same protocol. A PID (parameter identifkation) count is also transmitted during an OIS inspection. The PID

. count is the. number of data points reported by the vehicle's computer. Each ma1<e, model, and year of vehicle will have an expected PID count (or range of.PID counts.)

2

In his investigation report, Smith analyzed and documented 15 separate instances of clean plugging, which occurred at respondent's facility between January 11, 2017, and May 2, 2017. In each case, a certificate of compliance was issued to a vehicle that was not actually inspected. ·

6. On September 5, 2017, complainant filed a petition for an Interim Suspension Ordet (ISO) against respondent and Nguyen. The petition alleged that respondent Nguyen . performed 15 fraudulent smog inspections by clean plugging while employed at respondent's facility.

· A hearing on the petition was held on November 1, 2017. Respondent and Nguyen . did not appear. An order was issued that day, temporarily suspending-respondent's ARD registration and smog check station license and Nguyen's smog check inspection and smog check repair technician licenses. A decision was issued oh November 6, 2017.

7. The accusation was filed on November 9, 2017. Respondent did not file a notice of defense.

8. The evidence established that the following 15 cars were clean-plugged at respondent's facility, all using Nguyen's license, and were fraudule11tly issued certificates of

• • , • • I

compliance: . · · . . _· · · ·

a. Clean Plug 1: On January, 11, 2017, certificate of compliance number .ZN292441C was issued to a 2000 Chevrolet Silverado C2500. This vehicle reported the protocol and PID count that did not match the protocol and PID count that should be tra11Smitted by this type of vehicle. The 2000 Chevrolet Silverado was previously inspected on December 3, 2016, and transmitted the expected protocol and PID count for this type of vehicle. The vehicle failed the previous inspection.

b. Clean Plug 2: On January 16, 2017, certificate of compliance #ZN659209C was issued to a 2001 Ford Escape XLT. The vehicle did not report an e VIN and transmitted a protocol and PID count that did not match the p!'otocol and PID count transmitted by this type of vehicle. The vehicle was previously inspected onJannary 4, 2017, and on August 8, 2016. During both of the previous inspections, the vehicle reported an e VIN and transmitted the expected protocol and PID count for this type of vehicle. The vehicle failed the Jariuary 4, 2017 inspection.

c. Clean Plug 3: On January 25, 2017, certificate of compliance number ZN659242C was issued to a 2002 Ford Explorer Eddie Bauer. The vehicle did not report an e VIN and transmitted a protocol and PID count that did not match the protocol and PID count transmitted by this_ type of vehicle. This vehicle was previously tested on August 10, 2015, and on June 30, 2014. During the two previous inspections, the vehicle reported an e VIN and transmitted the expected protocol and PID count for this type of vehicle. · ·

3

. d. . · Clean Plug 4: On January 31, 2017; certificate of complia11~e number ZP131255C was issued to a 2003 Mazda 6 S. The vehicle did not report <1n, eVINand transmitted a protocol and PID count that did not match the protocol and PID count translll_itted by this type Qf vehicle. This.vehicle wasprevionsly tested on August 17, 2015. During the previou~ inspection, the vehicle reported an e VIN and the expected protocol and PID coun_t for this type of v_ehicle. · ·

e. Clean Plug 5: On January 31, 2017, certificate of compliance number ZP131257C was issued to a 2002 Chevrolet Camarn •. The vehicle did not report an e VIN and. tra11sinitted a protocol_ 11nd PID. c:ourit that did not m&tch ,thi; protocol and , . PID count that. sli6µld be, transmitted by this type of vehicle. T)1is,vehicle was previously inspected on January 5, 2015. At that iime, the vehicle reported an eVIN . and the expected protocol and PID count for a 2002 Chevrolet Camaro.

' ,' •,. • • . ·1 • • '

f. Clean Plug 6: On February 9, 2017, certificate of compliance n_timber, ZP406014C was issued to a 2001 Chevrolet Silverado C1500. The vehicle did not report <111 eVIN, aswould be yxpected pf t1)is make.and model of vehicle, and transmitfed<i prqtocol and PID co_uilt_that did not matchthepr9foc61 and,PID cou11t . that should be transmitted by this type of vehicle .. This vehicle was previously inspected on October 3, 2016, and November 11, 2014, During the two previous inspyctions, the vehiclerep01;ted aneVINm:id r,(:)portei:!tlw expected protocol and PID

. count. · · · · ·

..• . g .. > Clean Plug 7: On February 9,, 2017, certificate Qf compli~nce number . ZP4060f6C\Vf\~ issuedto a.200:l(JMC Savaiia Cutaway G35QQ. 'IJeyehicle.did not repoi·t an e VI)'!"; 1\S w,ould be e:xpected of this make 'and modelpfvehicle, ,and . transmitted a protocoi and PID cmmt that did not match the protocoland PID count that should be trnnstnit!ed by thistype of vehicle. This vehidewas previously

.. inspected on February 25, 2015, 1md transmitted an eVIN.and the expected protocol and PID count. ·. . . -

h. Ckan Plug 8: On February 10, 2017, certificate of complianc~ number ZP406020C was iss11ed to a 2002 Chevrolet Tn1ilblazer. The vehicle did not report an e VIN, as would be expected.of this make and model of vehicle, and transmitt.ed a protocol and Plb counlthat did not match the protocol and PID count that should be transmi\ted by this type o.f vehicle. This vehicle was previ(.msly inspected on February 12, 2015.,During the previous inspection the vehicle reported an eVIN and reported the.protocol and PID count expected for this make and model of vehicle.

' ' '

i. Clean Plug 9: On February 15, 2017, certificate of compliance number ZP406036C was issued to a 2001 Chevrolet Suburban Kl500. The vehicle did not rep~rt an e VIN, as ~ould be expected of this mak~ and model 9f vehicle, and transmitted a protocol and PID count that did not match the protocol and PID count

4

that should be transmitted by this type of vehicle. This vehicle was previous! y inspected on January 10, 2017, and on February 24, 2015. During the previoµs inspections, the vehicle reported an e VIN and transmitted the protocol and PID count expected for this type of vehicle. The vehicle failed the January 10, 2017, inspection.

j. Clean Plug 10: On February 16, 2017, certificate of compliance number ZP406043C was issued to a 2002 Cadillac De Ville. The vehicle did not report an e VIN, as would be expected of this make and model of vehicle, and transmitted a • ptotocol.artd 'PID count that did not niatch the protocol and PID count that .should be transmitted by this type of vehicle. This vehicle was previously inspected on November 12, 2015. During the previous inspection, the vehicle reported aneVIN and transmitted the protocol and PID count expected for this type of vehicle.

k. Clean Plug 11: On February 16, 2017, Certificate of compliance number ZP406047C was issued to a 2001 Ford Ranger. The vehicle did not report an e VIN, as would be· expected of this make· and model of vehicle, and transmitted a protocol and PID count that did not match the protocol and PID count that should be 'transmitted by this type of vehicle. This vehicle was previously inspected on January 19, 20i 7 and August 31, 2015. During the previous inspections, the vehicle reported an eVIN and transmitted the protocol and PID count expected for this make and model. The vehicle failed the January 19, 2017, inspectiort. ·

1. Clean Plug 12: On February 17, 2017, certificate of compliance number ZP406048C was issued to a 2001 GMC Yukon. ·The vehicle did not report an eVIN, as would be expected of this m~ke and model of vehicle, and transmitted a protocol and PID count that did not match the protocol and PID count that should be transmitted by this type of vehicle. This vehicle was previously inspected on April 23, 2015. During the previous inspecti011, the vehicle reported a1i eVIN and the · protocol and PID count expected for this make and model of vehicle.

m. Clean Plug 13: On March 17, 2017, certificate of compliance number ZR383294C was issued to a 2003 Dodge Ram 1500 ST. The vehicle did not report an e VIN, as would be expected of this make and model of vehicle, and transmitted a protocol and PID count that did not match the protocol and PID count that should be transmitted by this type of vehicle. This vehicle was·previously illspected on April 20, 2016. During the previous inspection, the vehicle reported an eVIN and the protocol and PID count expected for this type of vehicle: ·

n. Clean Plug 14: On March 18, 2017, certificate of compliance number · ZR383295C was issued to a 2003 Chevrolet Trailblazer. The vehicle did not report · · an e VIN, as would be expected of this make a11d model of vehicle, and transmit(ed a

protocol and l:'ID count that did not match the protocol and PID count that should be transmitted by this type of vehicle. This vehicle was previously inspected on December 12, 2016, and on February 23, 2015. During the previous inspections, the

5

vehicle repmtedan eVIN andtransmitted.the protocol and PID count expected for this make and model. The vehicle failed the December 12, 2016, inspection .. ,

o. Clean Plug 15: On May 2, 2017, certificate of compliance number ZV065(i01Cwas issued to a2003 ChevroletTahoe C1500, The vehide did not report a11 eVIN, as would be.expected of this make and model of vehigle, and transmitted a protocol and P1D count that di,d not rriatch the protocol a11d PID count that ~hould be transmitted by this type .of vehicle. This vehicle was preyiously inspected on August 26, ~015, and on Febnrnry 9, 2Q15. Dudng the previous inspections,Jhe vehjcle reported an e VIN and transmitte.d the protocol and PID count expected for this type of vehicle ..

· Co'its

•. .. 9. . .. Complai11ant seeksa total of$8,431.79in investigationandprnsecution costs. The Department ofJµstice Sl\bmfrte~J a. d~claration establish,ing that it will bill the Bureau $4,575.0Ofor legal services. in adc:Utkm, the Bureau submitted a dec\arntion certifying investigation costs in the a1nount of $;!,8,56.79 .. The. declaration is signed by Mark Femaridez: J,1rogr<1m J'vlanas;er I, of the Bureall' s Enforce111ent Operations Branch,;an.d specifies that 49 hours were ::,pent by a Program Representative II in fiscal .year 2016-,2017 in the investigation of this matter, The costs sought are deemed to be reasonable.

LEGAL CONCLUSIONS

, L. The burdenpf,i>rocifin this proceeding is on complainant, ~nd the standard of proof is a Ptepondern11ce. of the evide11ce, . (Imports Performancev,Dept. elf Co'!sum~r Affairs, Bureau o/Autqmqtiv~Repair; (2011) 201 Cal.App.4th 911.) ·

Causes for Discipline a gains~ Respondent's ARD registration

. MjSLEADINGSTATEfy!ENTS (FIRST CAUSE FOR DISCIPLINE) .

2, Business and Prnfessions ,Code section 9884.7, s11bdivision (a)(l), a~thorizes the Buteau to discipline the registration of an automotive repair dealer ifit made or·., · authorized statements which it.knew, or should have known by the exercise of reason(lble care, were untrue or misleading. By untruthfully reporting to the Bureau, between January 11, 2017, an.cl May 2, 2017, that 15 cars which had been clean plugged had been properly inspected and by certifying that these vehicles were in compliance, respondent Le. as owner of Monterey TestOnly made untrue apq mislending statements. Cause exists to discipline respondent's a11tomotive repair dealer registration in light of the matters set for\h in Finding 8. . . . ...

6

FRAUD (SECOND CAUSE FOR DISCIPLINE)

3. Business and Professions Code section 9884.7, subdivision (a)(4), authorizes the Bureau to discipline the registration of an automotive repair dea!edf it commits acts constituting fraud .. The 15 acts of de.an plugging which occurred between January 11, 2017, and May 2, 2017, and the issuance of fraudulent certificates of compliance to these vehicles, constituted fraud. Cause eJdsts to discipline respondent's automotive repair dealer registrati011 in light of the matters set forth in Finding 8.

Causes for Discipline agains:t Respondent's Smog Check Station License

VIOLATION OF MOTOR VEHICLE INSPECTION PROGRAM (TI-IIRD CAUSE FOR DISCIPLINE)

· 4. Health and Safety Code section 44072.2, subdivisions (a) and (t), authorizes the Bureau to discipline the smog check station license ofa licensee who violates rules and regulations governing licensees. Respondent violated the Bureau's regulations by failing to ensure that smog inspections were performed in accordance with statutes, regulations and procedures; issuing certificates of compliance to vehicles without ]laving performed proper inspections of these vehicles; entering false information into the emissions inspection system; and failing to conduct the required smog tests and inspections on these vehicles. (Health & Saf. Code,§ 44012; Cal. Code Regs, tit 16, §§ 3340.24, subd .. (c), 3340.41, subd. ( c), and 3340.42.) Cause exists to disciplirn:i' respondent's smog check station license in light of the matters set forth in Finding 8. · ·

DISHONESTY, FRAUD; OR DECEIT (FOURTH CAUSE FOR DISCIPLINE)

5. Health and Safety Code section 44072.2, subdivisimi(d), \(Uthorizes the Bureau to discipline the smog check station license of a licensee who commits any act involving dishonesty, fraud, or deceit whereby another is injured. The 15 fraudulent smog inspections performed at respondent's facility involved dishonest, fraudulent, and deceitful acts which caused injury to the People of the State of California. Cause exists to suspend or revoke respondent's smog check station license, in light of the matters set forth in Finding 8.

Other Matters

6. Business and Professions Code section 9884.7, subdivision (c), provides that the Bureau may discipline respondent's registration upon a finding that he has engaged in a course of repeated and willful violations of the laws and regulations pertaining to an automotive repair dealer. Cause for discipline under this provision has been established, in light of the matters set forth in Factual Finding 8 and Legal Conclusions 2 and 3.

7. Health and Safety Code section 44072.8 provides that if the Bureau revokes a license, any additional license issued in the name of that licensee may also be revoked.

7

8, The Bureau reviewed dataofsmoginspections performed atresp011dent's facility and documented cjean plugging of 15 vehicles. These fraudulent inspections took place during a short period of time spanniug fro,m Januaxy 11 to May 2, 2017 .. Several of the vehicles had recently failed a smog inspection. Respondent had only been licensed for a .few. months before this unlawful activlly began. The fraudulent conduct is egregious a:nd undermines the integrity oft!}e B11reau'~·.·smog inspection program .. The ¢ondµct posed a risk of harm to the public in that vehicles were certified that were not appropriately tested and were possibly 11ot in compli<1nce with C::aljfqrnia emissions regulations.

Respondent failed to appear at hearing td present evidence. In light of the severe natureof the rnisconduc;t1,revocation of respondent's AR:O registration and smog check station Hc,ense is nec:essary fpr \he rnotection of the public. , ·

.- . - ..

Costs.

9. . '~µsihiss and Profes~io~S Gode se~!ion .125,3 authorizes the, Bmeau to rec:;over its reasonable costs of investigation anp t,nforcement, In Zuckerman v. Board of " Chiropractic Eiamine,rs (2002)29 CaL4th 32, the CaliforniaSupreme Cotirt setsforth •. • .· .

. standa1·ds by which q li~ensing board)'nusLexercise its discretion to reduce or eliminate cost awards to ensure that licensees with potentially meritorious clajmsare not deterred from.· . exercising theirright to an administrative hearing. Those standards indude whethetthe

' . { . - .

licensee has been successful. at hearing. in getting the charges dismissed or reduced, ,the·. licensee's good faith belief in the merits of his or her position, whether the licensee ha:s raised a colorabhi challenge to the woposed discipline, the financial ability of the· licensee to pay, and whether the sc9pe ofthe investigation Wl!S &ppropriate to the&llegedmisconduct, Reduction of e;osts is not warranted in this .case,

8

ORDER

1. Automotive Repair Dealer Registration No. ARD 285283, issued to respondent Ai-Lien Thi Le, Owner, doing business as Monterey Test Only, is revoked. Any other automotive repair dealer registration issued to respondent Le is revoked.

2. Smog Check Station License No. TC 285283, issued to respondent Ai0Lien Thi Le, doing business as Monterey Test Only is revoked. Any other smog station license issued to respondent Le is revoked.

3. RespondentAi-Lien Thi Le shall pay to the Bureau costs associated with its investigation and enforcement pursuant to Business and Professions.Code section 125.3 in the amount of $8,431.79 ..

DATED: December 28, 2017

KAREN REICHMANN Administrative Law Judge Office of Administrative Hearings

9

,.

(

(

(

1

2

3

4

5

6

7

8

9

10

XAVIER BECERRA Attorney General of California JOSHUA A. ROOM Supervising Deputy Attorney General BRETT A KINGSBURY . Deputy Attorney General State Bar No. 243744

455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: ( 415) 703-1192 Facsimile: (415) 703-5480

Attorneysfor Complainant

BEFORE THE DEPARTMENT OF CONSUMER AFFAIRS

FOR THE BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

11----------------~ 11 In the Matter of the Accusation Against:

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

AI-LIEN THI LE - OWNER, D.B.A. MONTEREY TEST ONLY 2845 Monterey Road, #21 San Jose, CA 95111

Automotive Repair Dealer Registration No. ARD 285283 Smog Check, Test Only, Station License No. TC 285283

and

LAM TON NGUYEN 2137 S. 10th Street San Jose, CA 95112

Smog Check Inspector License No. EO 634579 Smog Check Repair Technician License No. EI 634579,

Respondents.

If----------------~

Complainant alleges:

ACCUSATION

PARTIES

27 1. Patrick Dorais (Complainant) bdngs this Accusation solely in his official capacity as

28 the Chief of the Bureau of Automotive Repair (Bureau), Department of Consumer Affairs.

1

(Al-LIEN THI LE D.B.A. MONTEREY TEST ONLY) ACCUSATION

(

(

(

I

2

Automotive Repair Dealer Registration

2. On or about November 9, 2016, the Bureau issued Automotive Repair Dealer

3 Registration (registration) Number ARD 285283 to Ai-Lien Thi Le, Owner, d.b.a. Monterey Test

4 Only (Respondent Shop). The Automotive Repair Dealer Registration was in full force and effect

5 at all times relevant to the charges brought herein .and will expire on November 30, 2018, unless

6 renewed.

7 Smog CheckStation License

8 3. On or about November 30, 2016, the Bureau issued Smog Check, Test Only, Station

9 License (smog station license) Number TC 28528fto Respondent Shop. The Smog Check, Test

IO Only, Station License was in full force and effect at all times relevant to the charges brought

11 herein and will expire on November 30, 2017, unless renewed.

12 Smog Check Inspector and Smog Check Repair Technician Licenses

13 4. On or about August 1, 2012, Advanced .Emission Specialist Technician License No.

14 EA 634579 was issued to Lam Ton Nguyen (Respondent Technician). Pursuant to California

15 Code of Regulations, title 16, section 3340.28(e), the license was cancelled on August 27, 2014,

16 and Respondent Technician's license was renewed as two licenses: Smog Check Inspector

17. License No. EO 634579 and Smog Check Repair Technician License No. EI 634579. 1 The Smog

18 Check Inspector License and Smog Check Repair Technician License will expire on August 31,

19 2018, unless renewed.

20 JURISDICTION

21 5. This Accusation is brought before the Director of the Department of Consumer

22 Affairs (Director) for the Bureau of Automotive Repair under the authority of the following laws.

23 6. Section 9884.13 of the Business and Professions Code (Code) provides, in pertinent

24 part, that the expiration of a valid registration shall not deprive the Director or Bureau Chief of

25

26

27

28

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

2

(AI-LIEN THI LE D.B.A. MONTEREY TEST ONLY) ACCUSATION

(

(

1 jurisdiction to proceed with a disciplinary proceeding against an automotive repair dealer or to

2

3

4

5

6

7

render a decision invalidating a registration temporarily or permanently.

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

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

or a court_ of law, or the voluntary surrender of the license, shall not deprive the Director of

jurisdiction to proceed with disciplinary action.

8. Section 44002 of the Health and Safety Code provides, in pertinent part, that the

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

9 the Motor Vehicle Inspection Program.

1 O STATUTORY AND REGULATORY PROVISIONS

1 1 9. Section 9884.7 of the Code states, in pertinent part:

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

13 error, may deny, suspend, revoke, or place on probation the registration ofan automotive repair

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

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

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

17 "(!) Making or a·uthorizing in any manner or by any means whatever.any statement written

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

19

20

21

22

23

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

"

"(4) Any other conduct that constitutes fraud.

"

10. Section 44012 of the Health and Safety Code requires that tests at smog check

24 stations be performed in accordance with procedures prescribed by the department.

25 1 I. Section 44059 of the Health and Safety Code states, in pertinent part:

26 "The willful making of any false statement or entry with regard to a material matter in any

27 oath, affidavit, ce1tificate of compliance or noncompliance, or application form which is required

28

3


(

C

(

1 by this chapter or Chapter 20.3 (commencing with Section 9880) of Division 3 of the Business

2

3

4

5

6

7,

8

9

10

11

12

and Professions Code, constitutes perjury and is punishable as provided in the Penal Code."

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

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

provided in this ai1icle if the licensee, or any partner, officer, or director thereof, does any of the

following:

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

related to the licensed activities.

"

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

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

13. California Code ofRegulatipns, title 16, section 3340.24(c) states: "The bureau may

13 SIJ!Spend or.revoke .the license of or pursue other legal action against a licensee, if the licensee

· 14 falsely or fraudLtlently issues or obtains a certificate of compliance or a certificate of

15 noncompliance."

16 14. California Code of Regulations, title 16, section 3340.30 states, in pertinent part:

17

18

19

20

21

22

23

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

requirements at all .times while licensed:

"(a) Inspect, test and repair vehicles, as applicable, in accordance with section 44012 of the

Health and Safety Code, section 44035. of the Health and Safety Code, an.d section 3340.42 of this

article.

"

15. California Code of Regulations, title 16, section 3340.41 (c) states: "No person shall

24 enter into the emissions inspection system any vehicle identification information or emission

25 control system identification data for any vehicle other than the one being tested. Nor shall any

26 person knowingly enter into the emissions inspection system any false information about the

27 vehicle being tested."

28 16. California Code of Regulations, title 16, section 3340.42, provides, in pe1tinent-part:

4


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

2 section 3340.45.

3 "(a) All vehicles subject to a smog check inspection, shall receive one of the following test

4 methods:

5

6 "(3) An OED-focused test,.shall be the test method used to inspect gasoline-powered

7 vehicles 2000 model-year and newer, and diesel-powered vehicles 1998 inodel-year and newer.

8 The OBD test failure criteria are specified in section 3340.42.2.

9 "(b) In addition.to subsection (a), all vehicles subject to the smog check program shall

10 receive the following:

I I "(I) A visual inspection of emission control components and systems to verify the vehicle's

12 emission control systems are properly installed.

13 "(2) A functional inspection of emission control systems as specified in the Smog Check

( 14 Manual, referenced by section 3340.45, which may include an OBD test, to verify their proper .

15 operation."

16 COSTS

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

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

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

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

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

22 included in a stipulated settlement.

23 FACTUAL BACKGROUND

24 18. On March 9, 2015, the Bureau implemented a statewide regulatory change "requiring

25 the use of the On Board Diagnostic Inspection System (BAR-OIS) instead of the Emission

26 Inspection System (EIS) for the smog testing of 2000 model year and newer gas powered and

27 hybrid vehicles.

28 Ill

5


( 1 19 .. The new BAR-OIS smog inspection utilizes a Data Acquisition Device (DAD), a

2 computer, a bar code scanner, and printer. The DAD is a scan tool that retrieves data from a

3 vehicle's On Board Diagnostic-generation II (OBD II) computer. The DAD connects the BAR-

4 OIS computer to the vehicle's diagnostic link connector (DLC) to retrieve the data from the

5 vehicle. The bar code scanner is used to input technician_information, the vehicle identification

6 number (VIN), and DMV renewal information. The printer is used to print Vehicle Inspection

7 Reports.

8 20. Data retrieved and recorded during an BAR-OIS smog check may include: the eVIN,

9 which is the digitally stored VIN programmed into the vehicle's Powertrain Control Module

1 O (PCM); the communication protocol, which is the manufacturer/vehicle's specific "language" that

11 the PCM uses to relay information; and the number of Parameter Identifications (Pills), which is

12 the number of specific data values that vehicle's PCM provides related to e~ission controls.

13 21. As part of BAR-OIS smog inspections, the technician also perfom1s a visual and

( 14 functional test on the vehicle. The BAR-OIS software makes the determination whether or not

15 the vehicle passes the inspection based on the results of the data and the visual and functional

16 tests. If the vehicle passes the inspection, a certificate of compliance is.issued. The information

17 from the smog inspection is then transmitted to the Vehicle Information Data (VID), The

18 technician affirms a statement for each inspection that the inspection complied with all applicable

19 laws and regulations .

.20 22. · The Bureau can access the VID to view test data on smog check inspections

21 performed at any Smog Check Station. The Bureau can also search for, retrieve, and print the test

22 record for any particular vehicle which has been tested.

23 23. The Bureau has become aware of several methods used by Smog Check stations and

24 Smog Check technicians to issue improper/fraudulent smog certificates of compliance. One

25 method is known.as clean plugging. Clean plugging involves using another vehicle's properly

26 functioning OBD II system, or another source, to generate passing diagnostic readings for a

27 vehicle that is not in smog compliance or not even present for testing.

28

6


(

(

(

I 24. The Bureau initiated an investigation of Respondent Shop and Respondent

2 Technician. Beginning on or about January 11, 2017, and continuing until about May 2, 2017,

3 Respondent Shop and Respondent Technician were found to have performed fifteen fraudulent

4 smog inspections using clean-plugging methods.

5 25. A Bureau representative reviewed data for the 15 vehicles at issue. The data revealed

6 that the fifteen vehicles purportedly tested by Respondent Shop and Respondent Technician were

7 not and could not have been connected to the DAD when they were being certified because the

8 OBD-II data purportedly transmitted by those vehicles could not have been transmitted by those

9 vehicles.

10 26. Respondents clean plugged and issued fraudulent certificates of compliance to the

11 following fifteen vehicles:2

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ll,----~-----------------------------

CLEAN 2000 Chevrolet Silverado C2500, VIN: 1GCFC29T5YZ203578

PLUG# 1 llt-----+--------~---.-------.--------,--------,

Ill

Ill

I II

Ill

Ill

Ill

I II

Cert.# ZN292441C eVIN Number ·-- ----------··· ··-· ------- --- -- -

Fraudulent Inspection . None

1111117

Expected Value None

Prior Inspection 12I03ll6 None

Protocol PID Count

1914 16

JVPW 22

JVPW 22

2 For PID Count and communication protocol, the "Expected Value" is the value generated by like vehicles.

7

(Al-LIEN THI LE D.B:A. MONTEREY TEST ONLY) ACCUSATION

( I CLEAN 2001 Ford Escape XLT, VIN: .1FMCU04191KF77793

2 PL!JG # 2

3 Cert.# ZN659209C eVIN 1'/l!mber Protocol PID Count

4 Fraudulent Inspection None 1914 16

5 1/16/17 .

6 Expected Value 1FMCU04191KF77793 JPWM 20or23 '

7 Prior Inspection 1/4/17 1FMCU04191KF77793 JPWM 20

8 Prior Inspection 8/8/16 1FMCU04191KF77793 JPWM 20

9

10 CLEAN 2002 Ford Explorer Eddie Bauer, VIN: 1FMDU64W42UB34394

11 PLUG# 3

12 C~rt. II Zl'l652242C ·~VIN N11mber Protocol PID C!:!lll!t


C 14

15

1/25/17

Expected Value 1FMDU64W42UB34394 )PWM 22

16 Prior Inspection 8/10/15 1FMDU64W42UB34394 )PWM 22 '

17 Prior Inspection 6/30/14 1FMDU64W42UB34394 )PWM 22

18

19 CLEAN 2003 Mazda 6 S, VIN: 1YVFP80D935M57009

20 PLUG# 4

21 Cert.# ZP131255C gl'lr-1 N!!m!lgr Pcotoi:ol e!D Clll!llt

. 22 I Fraudulent Inspection None 1914 16

23 i/31/2017

'

24 Expected Value 1YVFP80D935M57009 ICAN11bt5 39 or 39/8

25 Prior Inspection 1YVFP80D935M57009 ICAN11bt5 39/8

26 8/17/2015

27

( 28

8

(Al-LIEN THI LE D.B.A. MONTEREY TEST ONLY) ACCUSATlON

( CLEAN 2002 Chevrolet Camara, VIN: 2G1FP22K522129202

2 PLUG# 5

3 Ce[t. # ZP13125ZC eVIN Number ProtocoJ PID C!!!rnt

4 Fraudulent Inspe.ction NONE 1914 16

5 1131/17 .

6 Expected Value 2G1FP22K522129202 JVPW 20

7 Prior Inspection 115115 2G1FP22K522129202 JVPW 20

8

9 CLEAN 2001 Chevrolet Silverado CISOO, VIN: 1GCEC19T71Z166738 . 10 PLUG# 6

11 Cert.# ZP'1Q6014C fVIN Number frotocol PID C21mt


13 219117

( 14 Expected Value 1GCEC19T71Z166738 JVPW 22 or 23

15 Prior Inspection 1013116 1GCEC19T71Z166738 JVPW 23

16 Prior Inspection 11/11114 1GCEC19T71Z166738 JVPW 23

17

18 CLEAN 2001 GMCSavana Cutaway G3500, VIN: 1GDHG31R911166618

19 PLUG# 7

20 Cert.# ZP406016C eVIt,l N11mber Prot!lCQl fll2 Cm1nt


22 219117

23 Expected Value 1GDHG31R911166618 JVPW 22

24 Prior Inspection 2125115 . 1GDHG31R911166618 JVPW 22

25

26 I I I

27 I I I ( 28 Ill

9

(Al-LIEN THI LE D.B.A. MONTEREY TEST ONLY) A CCU SA TION

( --

I CLEAN 2002 Chevrolet Trailblazer, VIN: 1GNDT13S922269382

2 PLUG# 8

3 Ce[t,11 ZP406020C eVIN Nym!l~r Protocol PIDC1mnt

4 Fraudulent Inspection ·None 1914 16

5 2110117

6 Expected Value 1GNDT13S922269382 JVPW 18 .

7. Prior Inspection 2112115 1GNDT13S922269382 JVPW 18

8

9 CLEAN 2001 Chevrolet Suburban K1500, VIN: 3,GNFK16T21G183093

10 PLUG# 9

II .Cert.# ze±Q6Q36C ell!IS N!!mller Protorol ·:e1ncount


13 2115117

( 14

15

I

Expected Value 3GNFK16T21G183093 JVPW 22 '

Prior Inspection ll10l17 3GNFK16T21G183093 JVPW 22

16 Prior Inspection 2124115 3GNFK16T21G183093 JVPW 22

17

18 CLEAN 2002 Cadillac De Ville, VIN: 1G6KD54Y02U196689

19 PLUG# 10

20 Cert.# ZP406Q43C eVIN N11m!ler erotocgl PID Cmrnt


22 2116117.

23 Expected Value 1G6KD54.Y02U196689 JVPW 21

24 Prior lnspecUon 11112115 1G6KD54Y02U196689 JVPW 21

25 i I

26 Ill

27 Ill

( 28 Ill

10 .


( CLEAN 2001 Ford Ranger, VIN: 1FTYR10U61PA79006

2 PLUG# 11

3 Cert. ll ZP406047C gVIN N111nb~r: PrQtQtQl PIDC1mnt

4 Fraudulent lnspection None 1914 16

5 2116117

6 Expected Value 1FTYR10U61PA79006 JPWM 19

7 Prior Inspection lll9ll7 1FTYR10U61PA79006 JPWM 19

8 Prior Inspection 8131/15 1FTYR10U61PA79006 JPWM 19 .

9

IO · CLEAN 2001 GMC Yukon, VIN: 1GKEK13T41J229129

II PLUG# 12

12 Cert, H ZP406048C gVIN N11mber ProtO!'::Ql PIDCgynt


( 14 2117117

15 . Expected Value 1GKEK13T41)229129 JVPW 22 or 23

16 Prior Inspection 4123115 1GKEK13T41)229129 JVPW 23

l7 · ..

18 CLEAN 2003 Dodge RAM 1500 ST, VIN: 1D7HA18D13S215799

19 PLUG# 13

20 Cert.# ZR383224G eVIN N11mlrnr ProtQtQl PID CQ!!!U


22 3117117

23 Expected Value 1D7HA18D13S215799 JVPW 1813

24 Prior Inspection 4l20ll6 1D7HA18D13S215799 JVPW 1813

25 '

26 Ill

27 Ill

28 ' Ill

11


( 1 CLEAN 2003 Chevrolet Trailblazer, VIN: 1GN.DS13SX32169134

2 PLUG# 14

3 Cert. It ZB.383295C cllIN Nym!.Jct PrQtQtQl PIDC-QUDt

4 Fraudu_Ient Inspection None 1914 20

5 3/18/17

6 Expected Value 1GNDS13SX32169134 JVPW 18

7 Prior Inspection 12/12/16 1GNDS13SX32169.134 JVPW 18

8 _Prior Inspection 2123115 1GNDS13SX32169134 JVPW 18

9

10 CLEAN 2003 Chevrolet Tahoe ClSOO, VIN: 1GNEC13T43R207720

11 PLUG# 15

12 Cert.# ZV0656Q1C eVIN Nl!mber frQtQ,QI em CQl!nt


( 14

15

5/2/17

Expected Value 1GNEC13T4-3R207720 JVPW 22

16 Prior Inspection 8126/15 1GNEC13T43R207720 JVPW 22

17 Prior Inspection 219/15 1GNEC13T43R207720 JVPW 22

18

19

20 FIRST CAUSE FOR DISCIPLINE

21 (Misleading Statements - Registration)

22 27. Respondent Shop has subjected its registration to dfocipline under Code section

23 9884.7(a)(l), in that Respondent Shop made statements which it knew or which by the exercise of

24 reasonable care it should have known were untrue or misleading, as set forth above in Factual

25 Background. Respondent Shop purported to test the fifteen vehicles and certified that the fifteen

26 vehicles passed inspection and were in compliance with applicable laws and regulations. In fact,

27 Respondent Shop conducted the inspections on those vehicles using clean-plugging methods.

( 28 Ill

12


( 1

2

3

4

5

6

7

8

9

10

11

12

13

C 14

15

16

_; 17

18

19

20

21

22

23

24

25.

26

27

( - 28

SECOND CAUSE FOR DISCIPLINE

(Fraud - Registration)

28. Respondent Shop has subjected its registration to discipline under section

9884.7(a)(4) of the Code, in that it committed acts which constitute fraud, as set forth above in

Factual Background.

THIRD CAUSE FOR DISCIPLINE

(Violation of the Motor Vehicle Inspection Program - Station License)

29. Respondent Shop has subjected its station license to discipline under Health and

Safety Code section 44072.2(a) and (c), in that it violated sections of the Health and Safety Code

and applicable regulations, as set forth above in Factual Background, as follows:

a. Health and Safety Code Section 44012: Respondent Shop failed to ensure that the

emission control tests were performed on the vehicles in accordance with procedures prescribed

by the department. C

b. California Code of Regulations, title 16, Section 3340.24(c): Respondent Shop

falsely or fraudulently issued electronic certificates of compliance for those vehicles without

performing bona fide inspections of the emission control devices and systems on the vehicles as

required by Health and Safety Code section 44012.

cl. · California Code of Regulations, title 16, Section 3340.41( c): Respondent Shop

entered into the emissions .inspection system vehicle identification information or emission

control system identification data for a vehicle other than the one being tested. Respondent Shop

further knowingly entered into the emissions inspection system false information about the

vehicles being tested.

cl. California Code of Regulations, title 16, Section 3340.42: Respondent Shop failed

to conduct the required smog tests and inspections on the vehicles in accordance with the

Bureau's specifications.

Ill

· Ill

Ill

13

(Al-LIEN THI 'LE D.B.A. MONTEREY TEST ONLY) ACCUSATION

I

2

3

FOURTH CAUSE FOR DISCIPLINE

(Dishonesty, Fraud or Deceit - Station License)

30. Respondent Shop has subjected its station license to discipline under Health and

4 Safety Code section 44072.2( d), in that Respondent Shop committed acts involving dishonesty,

5 · fraud, or deceit, whereby another was injured, by issuing electronic certificates of compliance for

6 vehicles without performing bona fide inspections of the emission control devices and systems on

7 the vehicles, thereby depriving the People of the State of California of the protection afforded by

8 the Motor Vehicle Inspection Program. The circumstances are set forth above in detail in Factual

9 Background.

IO FIFTH CAUSE FOR DISCIPLINE

11 (Violations of the Motor Vehicle Inspection Program - Smog Check Licenses)

12 31. Respondent Technician has subjected his Smog Check Inspector and Smog Check

13 Repair Technician licenses to discipline under Health and Safety Code section 44072.2(a) and (c),

14 in that he violated sections of the Health and Safety Code and applicable regulations, as set forth

15 above ,in Factual Background, as follows:

16 a. Health and Safety Code Section 44012: Respondent Technician failed to ensure

1.7 that the emission control tests were performed on the vehicles in accordance with procedures

18 prescribed by the department.

19 b. Health and s·afety Code Section 44059: Respondent Technician willfully made

20 false entries on the electronic certificates of compliance by certifying that the vehicles had been

21 inspected as required when, in fact, they had not.

22 C. California Code of Regulations, title 16, Section 3340.30(a): Respondent

23 Technician failed to inspect and test the vehicles in accordance with Health and Safety Code

24 sections 44012 and 44035 and/or California Code of Regulations, title 16, section 3340.42.

25 d. California Code of Regulations, title 16, Section 3340.41(c): Respondent

26 Technician entered into the emissions inspection system vehicle identification information or

27 emission control system identification data for a vehicle other than the one being tested, and/or he

28

14

(Al-LIEN THI LE D.B.A: MONTEREY TEST ONLY) ACCUSATION

( knowingly entered into the emissions inspection system false information about the vehicles

2 being tested.

3 e. . California Code of Regulations, title 16, Section 3340.42: Respondent Technician

4 failed to conduct the required smog tests and inspections on the vehicles in accordance with the

5 Bureau's specifications.

6 SIXTH CAUSE FOR DISCIPLINE

7 (Dishonesty, Fraud or Deceit - Smog Check Licenses)

8 32. Respondent Technician has subjected his Smog Check Inspector and Smog Check

9 Repair Technician Licenses to discipline under Health and Safety Code section 44072.2(d), in

IO that he committed acts involving dishonesty, fraud, or deceit whereby another was injured, when .

11 he willfully made false entries on the electronic certificates of compliance and certified that the

12 vehicles had been inspected as required when, in fact, they had not, thereby depriving the People

13 of the State of California of the protection afforded by the Motor Vehicle Inspection Program.

( 14 The circumstances are described in more detail above in Factual Background.

15 OTHER MATTERS

16 33. Pursuant to section 9884.7(c) of the Code, the Director may suspend, revoke, or place

17 on probation the automotive repair dealer registrations for all places of business op<;,rated in this

18 state by Respondent Shop upon a finding that Respondent Shop has, or is, engaged in a course of

19 repeated and willful violations of the laws and regulations pertaining to an automotive repair

20 dealer.

21 34. Pursuant to Health & Safety Code section 44072.8, if Respondent Shop's station

22 license is revoked or suspended, any additional license issued under Chapter 5 of Part 5 of

23 Division 26 of the Health and Safety Code in the name of Respondent Shop may be likewise

24 revoked or suspended by the Director.

25 35. Pursuant to Health & Safety Code section 44072.8, if Respondent Technician's Smog

26 Check Inspector License or Smog Check Repair Technician License is revoked or suspended, any

27 additional license issued under Chapter 5 of Part 5 of Division 26 of the Health and Safety Code

28 in the name of Respondent Technician may be likewise revoked or suspended by the Director.

15

(Al-LIEN THI LE D.8.A. MONTEREY TEST ONLY) ACCUSATION

(

( '

(

1 PRAYER

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

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

4 1. Revoking or suspending Automotive Repair Dealer Registration Number ARD

5 285283, issued to Ai-Lien Thi Le, Owner, d.b.a. Monterey Test Only (Respondent Shop);

6 2. . Revoking or suspending any other automotive repair dealer registration issued to Ai-

7 Lien Thi Le;

8 3. Revoking or suspending Smog Check, Test Only, Station License Number TC

9 285283, issued to Respondent Shop;

lO 4. Revoking or suspending any other license issued under Chapter 5, Part 5, Division 26

11 of the Health and Safety Code in the name of Ai-Lien Thi Le;

12 5. Revoking or suspending Smog C_heck Inspector License No. EO 634579, issued to

· 13 Lam Ton Nguyen (Respondent Technician);

14

15

16

6. Revoking or suspending Smog Check Repair Technician License No. EI 634579,

issued to Respondent Technician;

7. · Revoking or suspending any other license issued under Chapter 5, Part 5, Division 26

17 of the Health and Safety Code in the name of Lam Ton Nguyen;

18 8. Ordering Respondent Shop and Respond~nt Technician to pay the Bureau of

19 Automotive Repair the reasonable co~ts of the investigation and enforcement of this case,

20 pursuant to Business and Professions Code section 125.3;

21

22

23

24

25

26

27

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

SF2017401856 28 41821028.doc

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

16

(Al-LIEN Tl-ll·LE D.BA MONTEREY TEST ONLY) ACCUSATION

4n - bar.ca.govbar.ca.gov/pdf/accusations/tc-285283_2018_04_18_dec.pdf · ard registration and smog...

Documents