dra~guezbar.ca.gov/pdf/accusations/rc-17583_2017_09_08_dec.pdf9 to the issuance of subpoenas to...

BEFORE THE DIRECTOR DEPARTMENT OF CONSUMER AFFAIRS

BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

In the Matter of the Accusation Against:

JAMES WILBUR JUSTUS DBA JAMES AUTOMOTIVE SERVICE 2208 Imperial Ave San Diego, CA 92 10-3915

Automotive Repair Dealer Registration No. ARD 17583, Smog Check Station License No. RC 17583;

and

JAMES WILBUR JUSTUS 171 21st Street San Diego, CA 92102

Smog Check Inspector No. EO 93246, Smog Check Repair Technician No. EI 93246;

Case No. 79/15-22668

Respondents.

DECISION

The attached Stipulated Settlement and Disciplinary Order is hereby accepted and adopted as the Decision of the Director of the Department of Consumer Affairs in the aboveentitled matter.

This Decision shall become effective ~ 'ne X: 8 I d-0 I 7

DATED: _ Jf-h ----'--f t---:.1/c.......:..._J __ _ I I dRA~GUEZ

Assistant Deputy Director Legal Affairs Division Department of Consumer Affairs

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XAVIER BECERRA Attorney General of California GREGORY J. SALUTE Supervising Deputy Attorney General . KEVIN W. MESSER Deputy Attorney General State Bar No. 228548

600 West Broadway, Suite 1800 San Diego, CA 9210 I P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 738-9080 Facsimile: (619) 645-2061

Attorneys for Complainant

BEFORE THE DEPARTMENT OF CONSUMER AFFAIRS

FOR THE BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

12 In the Matter of the Accusation Against: Case No. 79/15-22668

13 JAMES WILBUR JUSTUS DBA JAMES AUTOMOTIVE SERVICE

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2208 Imperial Ave San Diego, CA 92102-3915


and

JAMES WILBUR JUSTUS 171 21st Street San Diego, CA 92102

Smog Check Inspector No. EO 93246, Smog Check Repair Technician No. EI 93246;

Respondents.

STIPULATED SETTLEMENT AND DISCIPLINARY ORDER

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

entitled proceedings that the following matters are true:

PARTIES

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

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

-·--··----- ·- ···--··---- --------- -·---- ------1-Stipulated Settlement and Disciplinary Order (Case No. 79/15-22668)

Xavier Becerra, Attorney General of the State of California, by Kevin W. Messer, Deputy

2 Attorney General.

3 2. James Wilbur Justus dba James Automotive Service (Respondent) is represented in

4 this proceeding by attorney Mr. Frank Clowney, Esq., whose address is 600 B St., Ste 2300,

5 San Diego, CA 92101-4598.

6 3. In or about 1972, the Bureau issued Automotive Repair Dealer Registration No.

7 ARD 17583 to Respondent. The Automotive Repair Dealer Registration was in full force and

8 effect at all times relevant to the charges brought in Accusation No. 79115-22668 and will expire

9 on April30, 2017, unless renewed.

10 4. On or about August 17, 1993, the Bureau issued Smog Check Station License No. RC

11 17583 to Respondent. The Smog Check Station License was in full force and effect at all times

12 relevant to the charges brought in Accusation No. 79115-22668 and will expire on April 30, 2017,

13 unless renewed.

14 5. In 1996, the Bureau of Automotive Repair issued Advanced Emission Specialist (EA)

15 Technician License Number EA 93246 to James Wilbur Justus. It was due to expire on July 31,

16 2012, however it was cancelled on July 24, 2012. Pursuant to California Code of Regulations,

17 title 16, section 3340.28, subdivision (e), the license was renewed, pursuant to James Wilbur

18 Justus' election, as Smog Check Inspector (EO) License No. 93246 and Smog Check Repair

19 Technician (EI) License No. 93246, effective July 24, 2012. The Smog Check Inspector (EO)

20 License and the Smog Check Repair Technician (El) License were in full force and effect at all

21 times relevant to the charges brought in Accusation No. 79/15-22668 and will expire on July 31,

22 2018.

23 JURISDICTION

24 6. Accusation No. 79115-22668 was filed before the Director of Consumer Affairs

25 (Director), for the Bureau, and is currently pending against Respondent. The Accusation and all

26 other statutorily required documents were properly served on Respondent on March 8, 2017.

27 Respondent timely filed its Notice of Defense contesting the Accusation. A copy of Accusation

28 No. 79/15-22668 is attached as Exhibit A and incorporated by reference.

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Stipulated Settlement and Disciplinary Order (Case No. 79/15-22668)

ADVISEMENT AND WAIVERS

2 7. Respondent has carefully read, fully discussed with counsel, and understands the

3 charges and allegations in Accusation No. 79/15-22668. Respondent also has carefully read, fully

4 discussed with counsel, and understands the effects of this Stipulated Settlement and Disciplinary

5 Order.

6 8. Respondent is fully aware of its legal rights in this matter, including the right to a

7 hearing on the charges and allegations in the Accusation; the right to confront and cross-examine

8 the witnesses against them; the right to present evidence and to testify on its own behalf; the right

9 to the issuance of subpoenas to compel the attendance of witnesses and the production of

10 documents; the right to reconsideration and court review of an adverse decision; and all other

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

12 9. Respondent voluntarily, knowingly, and intelligently waives and gives up each and

13 every right set forth above.

14 CULPABli)TY

15 10. Respondent admits the truth of each and every charge and allegation in Accusation

16 No. 79/15-22668

17 11. Respondent agrees that his Automotive Repair Dealer Registration No. ARD 17583;

18 Smog Check Station License No. RC 17583; Smog Check Inspector (EO) License No. 93246;

19 and Smog Check Repair Technician (EI) License No. 93246 are subject to discipline and he

20 agrees to be bound by the Director's imposition of discipline as set forth in the Disciplinary Order

21 · below.

23 12. This stipulation shall be subject to approval by the Director or the Director's designee.

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

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

26 stipulation and settlement, without notice to or participation by Respondent or its counsel. By

27 signing the stipulation, Respondent understands and agrees that they may not withdraw its

28 agreement or seek to rescind the stipulation prior to the time the Director considers and acts upon

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Stipulated Settlement and Disciplinary Order (Case No. 79115-22668)

it. If the Director fails to adopt this stipulation as the Decision and Order, the Stipulated

2 Settlement and Disciplinary Order shall be of no force or effect, except for this paragraph, it shall

3 be inadmissible in any legal action between the parties, and the Director shall not be disqualified

4 from further action by having considered this matter.

5 13. The parties understand and agree that Portable Document Format (PDF) and facsimile

6 copies of this Stipulated Settlement and Disciplinary Order, including Portable Document Format

7 (PDF) and facsimile signatures thereto, shall have the same force and effect as the originals.

8 14. This Stipulated Settlement and Disciplinary Order is intended by the parties to be an

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

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

11 negotiations, and commitments (written or oral). This Stipulated Settlement and Disciplinary

12 Order may not be altered, amended, modified, supplemented, or otherwise changed except by a

13 writing executed by an authorized representative of each of the parties.

14 15. In consideration of the foregoing admissions and stipulations, the parties agree that

15 the Director may, without further notice or formal proceeding, issue and enter the following

16 Disciplinary Order:

17 ORDER

18 IT IS HEREBY ORDERED that Automotive Repair Dealer Registration No. ARD 17583,

19 Smog Check Station License No. RC 17583, Smog Check Inspector (EO) License No. 93246, and

20 Smog Check Repair Technician (EI) License No. 93246 issued to Respondent James Wilbur

21 Justus db a James Automotive Service are revoked and accepted by the Director of Consumer

22 Affairs.

23 1. The revocation of Respondent's licenses and the acceptance of the revoked licenses

24 by the Bureau shall constitute the imposition of discipline against Respondent. This stipulation

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

26 the Bureau of Automotive Repair.

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Stipulated Settlement and Disciplinary Order (Case No. 79115-22668)

2 . Respondent shall lose all rights and privileges as an Automotive Repair Dealer, Smog

2 Check Station, Smog Check Inspector, and Smog Check Repair Technician in Califo~ia as of the

3 effective date o f the Director's Decis ion and Order.

4 3. Respondent shall cause to be delivered to the Bureau his pocket licenses and, if one

5 was issued, his wall certificates on or before the effective date of the Decision and Order.

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

7 the State of California, the Bureau shall treat it as a new application for licensure. Respondent

8 must comply with all the laws, regulations and procedures for licensure in effect at the time the

9 application is filed, and all of the charges and allegations contained in Accusation No. 79/15-

10 22668 shall be deemed to be true, correct and admitted by Respondent when the Director

11 determines whether to grant or deny the petition.

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

13 amount of$5,397.83 before the application or petition for a new or reinstated license is made.

14 ACCEPTANCE

15 I have carefully read the above Stipulated Settlement and Disciplinary Order and have fully

16 discussed it with my attorney, Mr. Frank Clowney, Esq. I understand the stipulation and the

17 effect it will have on my Automotive Repair Dealer Registration, Smog Check Station License,

18 Smog Check Inspector License, and Smog Check Repair Technician License. I enter into this

19 Stipulated Settlement and Disciplinary Order voluntarily, knowingly, and intelligently, and agree

20 to be bound by the Decision and Order of the Director ofCorrumer Affairs.

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22 DATED:

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JA~f~ WILBJ JR JUSTUS DBA JAMES AUTwVtOTIVE SERVICE Respondent

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Sttpulated Sett lement and Dtsctphnary Order (Case No. 79115-22668)

Exhibit A

Accusation No. 79/15-22668

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XAV IER BECERRA Attorney General of California GREGORY J. SALUTE Supervising Deputy Attomey General KEVIN W. MESSER Deputy Attorney General State Bar No. 228548

600 West Broadway, Suite 1800 San Diego, CA 9210 I P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 738-9080 Facsimile: (619) 645-2061

Attorneys for Complainant

BEFORE THE DEPARTMENT OF CONSUMER AFFAIRS

FOR THE BUREAU OF AUTOMOTIVE REP AIR STATE OF CALIFORNIA

In the Matter of the Accusation Aga inst:

JAMES WILBUR JUSTUS DBA JAMES AUTOMOTIVE SERVICE 2208 Imperial Ave San Diego, CA 92102-3915


and

JAMES WILBUR JUSTUS 171 21St Street San Diego, CA 92102

Smog Check Inspector No. EO 93246, Smog Check Repa ir Tech nician No. EI 93246

Respondents.

7~ lt5 ~ z z 1>6 8 Case No. 7/'

ACCUSATION

25 Complainant alleges:

26 PARTIES

27 l. Patrick Dorais (Complainant) brings this Accusation so lely in his official capacity as

28 the Chief of the Bureau of Automotive Repai r, Depattment of Consumer Affai rs.

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( JANrES WILBUR JUSTUS DBA JAI\IlES AUTOMOTLVE SERVICE and JAMES WILBUR JUSTUS) ACCUSATION

1 2. In 1972, the Bureau of Automotive Repair issued Automotive Repair Dealer

2 Registration Number ARD 17583 to James Wilbur Justus dba James Automotive Service

3 (Respondent James Automotive). The Automotive Repair Dealer Registration was in full force

4 and effect at all times relevant to the charges brought herein and will expire on April 30, 2017,

5 unless renewed.

6 3. On or about August 17, 1993, the Bureau of Automotive Repair issued Smog Check

7 Station License Number RC 17583 to Respondent James Automotive. The Smog Check Station

8 License was in full force and effect at all times relevant to the charges brought herein and will

9 expire 011 April30, 2017, unless renewed.

10 4. In 1996, the Bureau of Automotive Repair issued Advanced Emission Specialist

11 (EA) Technicia11 License Number EA 93246 to James Wilbur Justus (Respondent Justus). It was

12 due to expire on July 31, 2012, however it was cancelled on July 24, 2012. Pursuant to California

13 Code of Regulations, title 16, section 3340.28, subdivision (e), the license was renewed, pursuant

14 to James Wilbur Justus' election, as Smog Check Inspector (EO) License No. 93246 and Smog

15 Check Repair Technician (EI) License No. 93246, effective July 24, 2012. 1 The Smog Check

16 Inspector (EO) License and the Smog Check Repair Technician (EI) License were in full force

17 and effect at all times relevant to the charges brought herein and will expire on July 31,2018.

18 JURISDICTION

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

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

21 All references are to the business code unless otherwise stated.

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6. Section 118, subdivision (b), ofthe Code provides that the suspension, expiration,

surrender, or cancellation of a license shall not deprive the Director of jurisdiction to proceed

with a disciplinary action during the period within which the license may be renewed, restored,

reissued or reinstated.

1 EfT:ective August I, 2012, California Code ofRegLtlations, title 16, sections 3340.28, 3340.29, and 3340.30 were amende.d to implement a license restructure from the Advanced Emission Specialist Technician (EA) license and Basic Area (EB) Technician license to Smog Check Inspector (EO) license and/or Smog Check Repair Technician (EI) license.

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(JAMES WILBUR HJSTUS DBA JAMES AUTOMOTIVE SERVICE and JAMES WILBUR JUSTUS) ACCUSATION

1 7. Section 9884.13 of the Code provides, in pertinent part, that the expiration of a valid

2 registration shall not deprive the director or chief of jurisdiction to proceed with a ctisciplinary

3 proceeding against an automotive repair dealer or to render a decision invalidating a registration

4 temporarily or permanently.

5 8; Section 9884.20 of the Code states:

6 "All accusations against automotive repair dealers shall be filed within three years after the

7 performance of the act or omission alleged as the ground for disciplinary action, except that with

8 respect to an accusation alleging fraud or misrepresentation as a ground for disciplinary action,

9 the accusation may be filed within two years after the discovery, by the bureau, of the alleged

10 facts constituting the fraud or misrepresentation."

11 9. Section 9884.22 of the Code states:

12 "(a) Notwithstanding any other provision of law, the director may revoke, suspend, or deny

13 at any time any registration required by this article on any of the grounds for disciplinary action

14 provided in this article. The proceedings under this article shall be conducted in accordance with

15 Chapter 5 (commencing with Section 11500) of Part I of Division 3 of Title 2 of the Government

16 Code, and the director shall have all the powers granted therein.

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

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

20 the Motor Vehicle Inspection Program.

21 11. Section 44072.4 of the Health and Safety Code states:

22 "The director may take disciplinary action against any licensee after a headng as provided

23 in this article by any of the following:

24 "(a) Imposing probation upon terms and conctitions to be set forth by the director.

25 "(b) Suspending the license.

26 "(c) Revoking the license."

27 12. Section 44072.6 of the Health and Safety Code provides, in pertinent part, that the

28 expiration or suspension of a license by opemtion oflaw, or by order or decision of the Director

3 ( JAIVJES WILBUR JUSTUS DBA JAMES AUTOMOTIVE SERVICE and JAMES WILBUR JUSTUS) .

ACCUSATION

1 of Consumer Affairs, or a com1 of law, or the voluntary surrender of the license shall not deprive

2 the Director of jurisdiction to proceed with disciplinary action.


4 "All accusations against licensees shall be filed within three years after the act or omission

5 alleged as the ground for disciplinary action, except thai: with respect to an accusation alleging a

6 violation of subdivision (d) of Section 44072.2, the accusation may be filed within two years after

7 the discovery by the bureau of the alleged facts constituting the fraud or misrepresentation

8 prohibited by that section."


10 "When a license has been revoked or suspended following a hearing under this article, any

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

12 or suspended by the director."

13 15. Califomia Code of Regulations, title 16, section 3340.28, subdivision (e) states that

14 "[u]pon renewal of an unexpired Basic Area Technician license or an Advanced Emission

15 Specialist Technician license issued prior to the effective date of this regulation, the licensee may

16 apply to renew as a Smog Check Inspector, Smog Check Repair Technician, or both."

17 STATUTORY PROVISIONS

18 16. Section 22 of the Code states:

19 "(a) 'Board' as used in any provisions of this Code, refers to the board in which the

20 administration of the provision is vested, and unless otherwise expressly provided, shall include

21 'bureau/ 'comt~lssion/ 'committee/ 1depart111ent,' 'division/ 'examining com·mittee,' 'program,' and

22 'agency.'

23 "(b) Whenever the regulatory program of a board that is subject to review by the Joint

24 Committee Qll Boards, Commissions, and Consumer Protection, as provided for in Division 1.2

25 (commencing with Section 4 73), is taken over by the department, that program shall be

26 designated as a 'bureau.'"

27 17. Section23.7 of the Code states:

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4 II-----,-(Jo-AME=·"' .. S"'WI=LccBccU"'R:-cJU:o-. "'s:::ru=s·"'D""'B-;A-coJA7 M=EccS-c-A'UTOMOTIVE SERVICE and JAMES WILBUR JUSTUS)

ACCUSATION

"Unless otherwise expressly provided, license means license, certif1cate, registration, or

2 other means to engage in a business or profession regulated by this code or referred to in Section

3 1000or3600."

4 18. Section9884.7 ofthe Code states:

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

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

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

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

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

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

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

care should be known, to be untme or misleading.

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"(4) Any other conduct that constitutes fraud.

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"(6) Failure in any material respect to comply with the provisions of this chapter or

regulations adopted pursuant to it.

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"(c) Notwithstanding subdivision (b), the director may suspend, revoke, or place on

probation the registration for all places ofbusiness operated in this state by an automotive repair

dealer upon a finding that the automotive repair dealer has, or is, engaged in a course of repeated

and willful violations of this chapter, or regulations adopted pursuant to it."


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

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

26 following:

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5 (JAMES WILBUR JUSTUS DBA JAMES AUTOMOTIVE SERVICE and JAMES WILBUR JUSTUS)

ACCUSATION

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"(a) Violates ru1y section of this chapter [the Motor Vehicle Inspection Program (Health

and Saf. Code,§ 44000, et seq.)] and the regulations adopted pursuant to it, which related to the

licensed activities.

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"(d) Commits ru1y act involving dishonesty, fraud, or deceit whereby another is injured.

It !!

20. Section 44072.10 of the Health and Safety Code states:

"(a) Notwithstanding Sections 44072 and 44072.4, the director, or the director's designee,

pending a hearing conducted pursuant to subdivision (e), may temporarily suspend any smog

check station or technician's license issued under this chapter, for a period not to exceed 60 days,

if the department determines that the licensee's conduct would endanger the public health, safety,

or welfare before the matter could be heard pursuant to subdivision (e), based upon reasonable

evidence ofany of the following:

"(1) Fmud.

"(2) Tampering.

"(3) Intentional or willful violation of this chapter or >my regulation, standard, or procedure

of the department implementing this chapter.

"(4) A pattern or regular practice of violating this chapter or any regulation, standard, or

procedure of the department implementing this chapter.

"

"(c) The department shall revoke the license of any smog check technician or station

licensee who fraudulently certifies vehicles or participates in the fraudulent inspection of

vehicles. A fraudulent inspection includes, hut is not limited to, all of the following:

"(!) Cleru1 piping, as defined by the department.

"(2) Tampering with a vehicle emission control system or test analyzer system.

"(3) Tampering with a vehicle in a manner that would cause the vehicle to falsely pass or

falsely fail an inspection.

6 ll-----c-7e7 ·· o:-=:~~=-o ··~==· · ·~=-c:c:=-==c-1

(JAMES WJLBU:R JUSTUS DBA JAMES AUTOMOTIVE SERVICE and JAMES WILBUR JUSTUS) ACCUSATION

1 "(4) Intentional or willful violation of this chapter or any regulation, standard, or procedure

2 of the department implementing this chapter,"

3 REGULATORY PROVISIONS

4 21. California Code of Regulations, title 16, section 3395.4, states:

5 "In reaching a decision on a disciplinary action under the Administrative Procedure Act

6 (Government Code Section 11400 et seq.), including formal hearings conducted by the Office of

7 Administrative Hearing, the Bureau of Automotive Repair shall consider the disciplinary

8 guidelines entitled 'Guidelines for Disciplinary Penalties and Terms of Probation' [May, 1997]

9 which are hereby incorporated by reference. The 'Guidelines for Disciplinary Penalties and

10 Terms of Probation' are advisory. Deviation from these guidelines and orders, including the

11 standard tenus of probation, is appropriate where the Bureau of Automotive Repair in its sole

12 discretion determines that the facts ofthe particular case warrant such deviation -for example: the

13 presence of mitigating factors; the age ofthe case; evidentiary problems."

14 COSTS

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

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

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

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

19 renewed or reinstated. If a case settles, recovery ofinvestigation and enforcement costs may be

20 included in a stipulated settlement.

21 CLEAN PLUGGING

22 23. At all times alleged in this Accusation, Respondent Justus was acting in the course

23 and within the scope of a technician, employee, partner, officer, or member of James Automotive

24 Service.

25 24. The On-Board Diagnostics- Generation II (OBD II) communication protocol

26 describes the specified communication "language" used by the OBD II system electronic control

27 unit to communicate to scan tools and other devices such as the On, Board Diagnostic Inspection

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7 (JAMES WILBUR JUSTUS DBA JAMES AUTOMOTIVE SERVICE and JAMES WILBillUUSTUS)

ACCUSATION

System (OIS). The communication protocol is programmed into the OBD II system electronic

2 '· control unit during manufacture and does not change.

3 25. Parameter Identifications (PID) are data points reported by the OBD II system

4 electronic control unit to the scan tool or OIS. Examples ofPIDs are engine speed (RPM)1

5 vehicle speed, engine temperature, and other input and output values utilized by the OBD II

6 system electronic control unit. The PID count is the number of data points reported by the OBD

7 II system electronic control unit and is programmed during manufacture.

8 26. The Vehicle Identification Number (VIN) that is physically present on all vehicles is

9 also required to be programmed into the vehicle's OBD II on 2005 and newer vehicles, and on

10 many occasions was programmed into the OBD II system electronic control unit in earlier model-

11 years. This electronically programmed VlN, also known as the "eVIN," is captured by BAR

12 during a Smog Check, and should match the physical VIN on the vehicle,

13 27. During a Bureau representative's review of Respondents' certified test results in the

14 Vehicle Information Database (VlD) for inspections purportedly performed on the OIS between

15 from July 2016 to October 2016, ten (10) vehicles identified below had deviatiom in one or more

16 of the following: eVlN, inconect vehicle communication protocol, and/or incorrect PJD count.

17 This indicates that the vehicles receiving smog certificates were fraudulently tested during the

18 smog check inspection by a method known as Clean Plugging. 2 A detailed explanation of each

19 fraudulent smog check is as follows:

20 a, Clean Plug 1

21 OIS test data indicates that on July 7, 2016, a 2006 Volkswagen was tested and a smog

22 certificate was issued lmder licensed Smog Inspector #E093246 by Respondent Justus. The OlS

23 Test Detail for the 2006 Volkswagen showed the e V!N not reported, the communication protocol

24 listed as 19140808, and the PlD count as 19/10. Bureau review of the comparative OIS Test Data

25 of the Expected OBD··II Values for similar 2006 Volkswagen vehicles showed the eVIN is

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2 To "clean plug" a vehicle, the technician uses another vehicle's properly functioning OBD II system, or another source, to generate passing diagnostic readings for the purpose of issuing fraudulent smog certificates of compliance to vehicles that are not in smog compliance or not present during the certified test.

8 ----( JAMESWILBUR JUSTUS DBA JAMES AUTOMOTIVE SERVICE alld JAMES WILBUR JUSTUS)

ACCUSATION

1 reported, the expected communication protocol as ICAN11bt5, and a PID count of37/l5 or

2 37/14. The discrepancies in the OIS Test Detail prove the OIS Data Acquisition Device was not

3 connected to the 2006 Volkswagen, resulting in the issuance of a fraudulent Smog Certificate of

4 Compliance. 3

5 b. Clean Plug 2

6 QIS test data indicates that on July 30,2016, a 2009 Chevrolet was tested and a smog

7 certificate was issued under licensed Smog Inspector #E0932.46 by Respondent Justus. The OIS

8 Test Detail for the 2009 Chevrolet showed thee VIN was not reported, 1he communication

9 protocol as .JVPW1850, and the PID count was 20/3. Bureau review of the comparative OIS Test

10 Data of the Expected OBD-II Values for similar 2009 Chevrolet vehicles showed the eVIN as

11 reported, the expected communication protocol as ICAN!l bt5, and. a PID count of 45/7/8. The

12 discrepancies in the OIS Test Detail prove the QIS Data Acquisition Device was not connected to

13 the 2009 Chevrolet being certified, resulting in the issuance of a fraudulent Smog Certificate of

14 Complim1ce.4

15 c. Clean Plug 3

16 OIS test data indicates tlmt on August 2, 2016, a 2008 Cadillac was tested and a smog

17 certificate was issued under licensed Smog Inspector #E093246 by Respondent JustcJs. The OIS

18 Test Detail for the 2008 Cadillac showed the eVlN was not reported, the communication protocol

19 asJVPWI850, and the PID cotmt was 20/3. Bureau review of the comparative OIS Test Data of

20 the Expected OBD-ll Values for similar 2008 Cadillac vehicles showed the eVIN as reported, the

21 expected communication protocol as ICANllbt5, and a PID count of 44/7/8 or 43/7/8. The

22 discrepancies in the OIS Test Deta:ll prove the OIS Data Acquisition Device was not connected to

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3 This vehicle had a previous test performed at a different station on May 18, 2015. The OIS Test Detail for the vehicle on this date properly reported the eVIN, il1e correct communication protocol (ICANll bt500), and the correct PID count (37/lS), values consistent with comparative vehicles.

4 This vehicle had a previous test performed at a different station on August 12, 2015. The OIS Test Detail for the vehicle on this date properly reported thee VIN, the correct communication protocol (ICAN11bt500), and the correct PlD cmmt (45/7/8), values consistent with comparative vehicles.

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(JAMES WILBUR JUSTUS DBA JAMES ATJ'fOMOTIVE SERVICE and JAMES WILBUR .fUSTUS) ACCUSATION

1 the 2008 Cadillac being certified, resulting in the issuance of a fraudulent Smog Certificate of

2 Compliance.5

3 d. · Clean Plug 4

4 OIS test data indicates that on August 11,2016, a 2007 Chevrolet was tested and a smog

5 certificate was issued under licensed Smog Inspector #E093246 by Respondent Justus. The OIS

6 Test Detail for the 2007 Chevrolet showed the eVIN was not reported, the communication

7 protocol as .TVPW1850, and the PID count was 20/3. Bureau review of the comparative OIS Test


9 reported, the expected communication protocol as KWPF8FE9, and a PJD count of36/1 or 36.

10 The discrepancies in the OIS Test Detail prove the OIS Data Acquisition Device was not

11 connected to the 2007 Chevrolet being certitled, resulting in the issuance of a fi·audulent Smog

12 Certificate of Compliance.6

13 e. Clean Plug 5

14 OIS test data indicates that on August 16, 2016, a 2007 Chevrolet was tested and a smog

15 certi!lcate was issued under licensed Smog Inspector #E093246 by Respondent Justus. The OIS

16 Test Detail for the 2007 Chevrolet showed the e VIN was not reported, the communication

17 protocol as JVPW1850, and the PID count was 20/3. Bureau review of the comparative OIS Test


19 repotted, the expected communication protocol as ICAN11bt5, and a PID count of38/7. The

20 discrepancies in the OIS Test Detail prove the OIS Data AcqLtisition Device was not connected to

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5 This vehicle had a previous test performed at a different station on September 26, 2014. The OIS Test Detail for the vehicle on this date properly reported the eVIN, the correct communication protocol (ICANl 1 bt500), and the correct PID count (44/7/8), values consistent with comparative vehicles.

6 This vehicle had a previoLts test performed at a different station on May 20, 2015. The OIS Test Detail for the vehicle on this date properly reported the eVIN, the correct communication protocol (KWPF8FE9), and the correct PID count (36/1 ), values consistent with comparative vehicles. · ·

10 (JAMES WILBUR fUSTUS DBA JAMBS AUTOMOTIVE S'ERV!CE and JAMES WILBUR JUSTUS)

ACCUSATION

1 the 2007 Chevrolet being certified, resulting in the issuance of a fl·audulent Smog Certificate of

2 Compliance/

3 f. Clean Plug 6

4 OIS test data indicates that on September 26,2016, a 2007 Chrysler was tested and a smog


6 Test Detail for the 2007 Chrysler showed the e YIN was not reported, the communication protocol

7 as JVPWI850, and the PID count was 20/3. Bureau review of the comparative OIS Test Data of

8 the Expected OBD-II Values for similar 2007 Chrysler vehicles showed the eVIN as reported, the

9 expected communication protocol as ICANll bt5, and a PID count of 32/8 or 32. The

10 discrepancies in the OIS Test Detail prove the OIS Data Acquisition Device was not connected to

11 the 2007 Chrysler being certified, resulting in the issuance of a fraudulent Smog Ce1tificate of

12 Compliance.8

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g. Clean Plug 7

OIS test data indicates that on September 29,2016, a 2008 Ford was tested and a smog

certificate was issued under licensed Smog Inspector #E093246 by Respondent Justus. The CHS

Test Detail for the 2008 Ford showed thee YIN was not reported, the commtmication protocol as

.TPWM1850, and the PID count was 20. Bureau review of the comparative OIS Test Data of the

Expected OBD-IT Valu.es for similar 2008 Ford vehicles showed the eVIN as reported, the

communication protocol as ICAN1lbt5, and a PID count of 35. The discrepancies in the OIS Test

Detail prove the OIS Data Acquisition Device was not connected to the 2008 Ford being ce1tified,

resulting in the issuance of a fraudulent Smog Certificate of Compliance.9

7 This vehicle had a previous test performed at a different station on July 13,2015. The OIS Test Detail for the vehicle on this date properly reported the eVIN, the correct communication protocol (lCANllbt500), and the correct PID count (38/7), values consistent with comparative vehicles.

8 This vehicle had a subsequent test perfonned at James Automotive Service on July 6, 2016 and the vehicle failed inspection. The OIS Test Detail for the vehicle on this date properly reported the eVIN, the correct communication protocol (ICAN11 bt500), and the correct PID count (32/8), values consistent with comparative vehicles.

9 This vehicle had a previous test performed at James Automotive Service on September 6, 2016 and the vehicle failed inspection. The OIS Test Detail for the vehicle on this date

(con tinned ... ) 11

(JAMES WILBlW JUSTUS DBA JAMES AUTOMOTIVE SERVICE and JAMES WILBUR JUSTUS) ACCUSATION

,_

1 h. Clean Plug 8

2 OIS test data indicates that on October 3, 2016, a 2006 Ford was tested and a smog

3 certificate was issued under licensed Smog Inspector #E093246 byRespondent Justus. The OIS

4 Test Detail for the 2006 Ford showed the eVIN not reported, the communication protocol as

5 JVPW\850, and the PID count was 2013. Bureau review of the comparative OIS Test Data of the

6 Expected OBD-11 Values for similar 2006 Ford vehicles showed the eVIN is reported, the

7 expected communication protocol as ICAN!l bt5, and a PID count of 42 or 44. The discrepancies

8 in tbe OIS Test Detail prove the OIS Data Acqt!isition Device was not connected to the 2006 Ford

9 being certified, resulting in the issuance of a fraudulent Smog Certificate of Compliance.10

10 i. Clean Plug 9

11 OIS test data indicates that on October 10, 2016, a 2006 Mazda was tested and a smog

12 certificate was issued under licensed Smog Inspector #E093246 by Respondent Justus, The OIS

13 Test Detail for the 2006 Mazda showed tbe eVlN was not reported, the communication protocol

14 is listed as KWPF8}'EF, and tbe PID count was 2111. Bureau review of the comparative OIS Test

15 Data of the Expected OBD-TI Values similar 2006 Mazda vehicles showed the eVIN is reported,

16 they had the expected communication protocol ICANIJ bt5, and a PID count of 38. The

17 discrepancies in the OIS Test Detail prove the OIS Data Acquisition Device was not connected to

18 the 2006 Mazda being certified, resulting in the issuance of a fraudulent Smog Certificate of

19 Compliance, 11

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( ... continued) properly reported the eVIN, the correct communication pt·otocol (TCAN1lbt500), and the conect PID count (35), values consistent with comparative vehicles.

10 This vehicle had a previous test performed at James Automotive Service on May 7, 2015. The OIS Test Detail for the vehicle on this date properly reported the eVIN, the correct communication protocol (ICAN11bt500), and the correct PID count (44), values consistent with comparapve vehicles.

1 This vehicle had a previous test performed at a different station on February 6, 2015. The OIS Test Detail for the vehicle on this date properly reported thee VlN, the correct communication protocol (ICAN1lbt500), and the correct PID count (38), values consistent with comparative vehicles.

12 II------,-(J;-;Ac:-ME=s'"'w=IL"'B"'U"'R-c:m"'·· "'sro=s"'D"'B"'A-,-,.JA"'rv:-:m"", "'s '""A.UTOMOTIVE SERVICE and JAMES WILBUR JUSTUS) .

ACCUSATION

i-

1 j. Clean Plug 10

2 OIS test data indicates that on October 10,2016, a 2008 Dodge was tested and a smog


4 Test Detail for the 2008 Dodge showed the e YIN was not reported, the communication protocol

5 is listed as JVPW1850, and the PID count was 20/3. Bureau review of the comparative OIS Test

6 Data of the Expected OBD-II Values for similar 2008 Dodge vehicles showed the eVIN is

7 reported, they had the expected communication protocol ICANIJ.bt5, and a PID count of 44. The

8 discrepancies in the OIS Test Detail prove the OIS Data Acquisition Device was not com1ected to

9 the 2008 Dodge being certified, resulting in the issuance of a fraudulent Smog Certificate of

10 Compliance.

11 FIRST CAUSE FOR DISCIPLINE

12 (Untrue or Misleading Statement)

13 28. Complainant re,alleges and incorporates by refcrenee the allegations set forth above

14 in the foregoing paragraphs.

15 29. Respondent James Automotive's Registration is subject to disciplinary action under

16 section 9884.7, subdivision (a)( I), in that Respondent made or authorized statements which

17 Respondent knew or in the exercise of reasonable care should have known to be tmtrue or

18 misleading.

19 30. Respondent cettified that the vehicles listed in paragraph 27, subparagraphs a.

20 through j., had passed inspection and were in compliance with all applicable laws and regulations,

21 when in fact and in truth, Respondent inspected the vehicles using the clean plugging method to

22 issue fraudulent certincatcs of compliance.

23 SECOND CAUSE :FOR DISCIPLINE

24 (Violations of Motor Vehicle Inspection Program)

25 31. Complainant re-alleges and incorporates by reference the allegations set forth above


27 32. Respondent .James Automotive's Smog Check Station License is subject to

28 disciplinary action under Health and Safety Code sections 44072.10, subdivisions (a) and (c) and

13 --"'( J;-,A7ME=S-;;W-;;IL"'B"'l""Jlo-U00U._STUS DBA JAMES AUTOMOTIVE SERVJCE and JAJ\!JES WILBUR JUSTUS)

ACCUSATION

1 44072.2, subdivision (a), in that Respondent failed to comply with the following sections oftl1at

2 Code:

3 a. Section 44012: failed to perfarm the tests of the emission control systems and

4 devices on the vehicles listed in paragraph 27, subparagraphs a. through j., in accordance with

S procedures prescribed by the Department,

6 b. Section44015, subd. (a) and (b): issued a certificate of compliance for tbe vehicles

7 listed in paragraph 27, subparagraphs a. through j ., without properly testing and inspecting them

8 to determine if they were in compliance with Health & Safety Code section44·012.

9 c. Section 44035: failed to meet or maintain the standards prescribed for qualification,

10 equipment, performance, or conduct by f1jling to properly perform a smog inspection on tbe

11 vehicles listed in paragraph 27, subparagraphs a. throughj., or certifying that such tests had been

12 performed, when in fact they were never performed.

13 THIRD CAUSE FOR DISCIPLINE

14 (Failure to Comply with regulations .Pursuant to the Motor Vehicle Inspection Program) ·


16 in tbe foregoing paragraphs.

17 34. Respondent James Automotive's Smog Check Station License is subject to

18 disciplinary action under Health and Safety Code sections 44072.10, subdivisions (a) and (c) and

19 44072.2, subdivision (a), in tlmt Respondent failed to comply with the following sections of Title

20 16, California Code of Regulations:

21 a. Section 3340.35, subdivision (c): failed to inspect and test the vehicles listed in

22 paragraph 27, subparagraphs a. throughj., in accordance with the procedures specified in section

23 3340.42 ofthe Regulations and failed to ensure that the vehicles had all the required emission

24 control equipment and devices installed and functioning correctly.

25 b. Section 3340.41, subdivision (c): lmowing1y entered into the Emissions Inspection

26 System false information about the vehicles listed in paragraph 27, subparagraphs a. throughj.,

27 providing results fot• smog inspections which were not actually performed.

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14 (JAMES WILBUR rlTsrus DBA JAMF,S.AiTro"'M"'·""o"'TI"'.V:o:E""S.ERVICE and JAMES WILBUR JUSTUS)

ACCUSATION

1 c. Section 3340.42: failed to conduct the required smog tests on the vehicles listed in

2 paragraph 27, subparagraphs a. throughj., in accordance with the Bureau's specifications.

3 d. Section 3340.45: failed to conduct the required smog tests on the vehicles listed in

4 paragraph 27, subparagraphs a. through j ., in accordance with the Smog Check Manual, dated

5 2013.

6 FOURTH CAUSE FOR DISCIPLINE

7 (Dishonesty, Fraud, or Deceit)



10 36. Respondent James Automotive's Registration is subject to disciplinary action under

11 Code section 9884.7, subdivision (a)(4) and Respondent James Automotive's Smog Check

12 Station License is subject to disciplinary action under Health and Safety Code sections 44072.10,

13 subdivision (a) and (c) and 44072.2, subdivision (d), in that Respondent committed dishonest,

14 fraudulent, or deceitful acts whereby another is injured by issuing a smog certificate of

15 compliance for the vehicles listed in paragraph 27, subparagraphs a. throughj., without

16 per~orming bona fide inspections of the emission control devices and systems on the vehicles,

17 thereby depriving the People of the State of California of the protection afforded by the Motor

18 Vehicle Inspection Program.

19 I<II<'TH CAUSE FOR DISCIPLINE

20 (Violation of Motor Vehicle Inspection Program)

21 3 7. Complainant re-al!eges and incorporates by reference the allegations set forth above


23 38. Respondent Justus' Smog Check Inspector License and Smog Check Repair

24 Teclmician License are subject to disciplinary action under Health and Safety Code sections

25 44072.10, subdivisions (a) and (c) and 44072.2, subdivision (a), in that Respondent failed to

26 comply with the following sections of that Code:

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15 (JAMES Wll"BUR.JU'ccs"''T='u"'S"'D"'B"'A,-."'!A"'ME-=."'.,,S,-' A'"'UTOMOTIYE SERVICE tmd JAMES WILBUR JUSTUS)

ACCUSATION

1 a. Section 44012: failed to perform the tests of the emission control systems and

2 devices on Hte vehicles listed in paragraph 27, subparagraphs a. throughj., in accordance with

3 procedures prescribed by the Department.

4 b. Section 44015, subd. (a) and {b): issued a certificate of compliance for the vehicles

5 listed in paragraph 27, subparagraphs a. through j ., without properly testing and inspecting them

6 to dtltermine if they were in compliance with Health & Safety Code section 44012.

7 c. Section 44035: failed to meet or maintain the standards prescribed for qualification,

8 equipment, performance, or conduct by failing to properly perform a smog inspection on the

9 vehicles listed in paragraph 27, subparagraphs a. through j., or certifying that such tests had been

10 performed, when in fact they were never performed.

11 d. Section 44032: failed to test emission control devices and systems in accordance

12 with Section44012 on the vehicles listed in paragraph 27, subparagraphs a. throughj.

13 SIXTH CAUSE FOR DISCIPLINE

14 (Failure to Comply with Regulations Pursuant to the Motor Vehicle Inspection Program)

15 39. Complainant re·alleges and incorporates by reference the allegations set forth above


17 40. Respondent Justus' Smog Check Inspector License and Smog Check Repair

!8 Technician License are subject to disciplinary action under Health and Safety Code sections

19 44072.10, subdivisions (a) and (c) and 44072.2, subdivision (a) in that Respondent failed to

20 comply with the following sections of Title 16, California Code of Regulations:

21 a. Section 3340.35, subdivision (c): failed to inspect and test the vehicles listed in

22 paragraph 27, subparagraphs a. throughj., in accordance with the procedures specitled in section

23 3340.42 of the Regulations and failed to ensure that the vehicles listed in paragraph 27,

24 subparagraphs a. throughj., had all the required emission control equipment and devices installed

25 and fi.mctioning correctly.

26 b. Section 3340.41, subdivision (<:}: knowingly entered into the Emissions h1spection

27 System false information about the vehicles listed in paragraph 27, subparagraphs a, throughj.,

. 28 providing results for smog inspections which were not actually performed.

16 (JAMES WJLBlJR JUSTUS DBA JAMES AUTOMOTIVE SERVICE and JAMES WILBUR JUSTUS)

ACCUSATION

c. Section 3340.42: failed to conduct the required smog tests on the vehicles listed in

2 paragraph 27, subparagraphs a. throughj., in accordance with the Bureau's specifications.

3 d. Section 3340.45: failed to conduct the required smog tests on the vehicles listed in

4 paragraph 27, subparagraphs a. throughj., in accordance with the Smog Check Manual, dated

5 2013.

6 SEVENTH CAUSE FOR DISCIPLINE

7 (Dishonesty, Fraud, or Deceit)



10 42, Respondent Justus' Smog Check Inspector License and Smog Check Repair

11 Technician License are subject to disciplinary action under Health and Safety Code sections

12 44072.10, subdivision (a) and (c) and 44072.2, subdivision (d), in that Respondent committed

13 dishonest, fraudulent, or deceitful acts whereby another is injured by issuing a smog certificate of

14 compliance for the vehicles listed in paragraph 27, subparagraphs a. throughj., without

15 performing b.ona fide inspections of the emission control devices and systems on the vehicles,

16 thereby depriving tl1e People ofthe State of California of the protection afforded by the Motor

17 Vehicle Inspection Program.

18 OTHER MATTERS

19 43. Under Code section 9884.7, subdivision (e), the Director may suspend, revoke or

20 place on probation the registration for all places of business opemtecl in this State by Respondent

21 James Automotive upon a finding that Respondent has, or is, engaged in a course of repeated and

22 willful violations of the laws and regulations pertaining to an automotive repair dealer.

23 44. Under Health & Safety Code section 44072.8, if Respondent James Automotive's

24 Smog Check Station License is revoked or suspended, the Director may likewise revoke or

25 suspend any additional license issued under Chapter 5 of the Health and Safety Code in the name

26 of Respondent James Automotive.

27 45. Under Health and Safety Code section 44072.8, if Respondent Justus' Smog Check

28 Inspector License and Smog Check Repair Technician License are revoked or suspended, any

17 (JAMES WJLBURJUS.TUS DBA Jfi':\1ES A1JTOMOT1VE SERVICE and JAMES WILBUR JUSTUS)

ACCUSATION

r

additional license issued under the Motor Vehicle Inspection Program in the name of Respondent

2 may be likewise revoked or suspended by the Director.

3 PRAYER

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

5 and that fo llowing the hearing, the Director of Consumer Affairs issue a decision: .

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

7 No. ARD 17583, issued to James Wi lbur .Justus elba James Automot ive Service;

8 2. Revoking, suspending or placing on probation Smog Check Station License No. TC

9 17583, issued to James Wilbur Justus dba James Automotive Service;

10 3. Revoking, suspending or placing on probation any addi tional I icense issued under

11 Chapter 5 of the Health and Safety Code in the name of Respondent James Wilbur Justus dba

12 James Automotive Service;

13 4. Revoking, suspending or placing on probation the registration for all places of

14 busi ness operated in thi s State in the name of Respondent James Wi lbur Justus dba James

15 Automotive Service;

16 5. Revoking, suspending or placing on probation Smog Check Inspector (EO) License

17 No. 93246 and Smog Check Repair Technic ian (EI) License No. 93246, issued to Respondent

18 James Wi lbur Justu s;

19 6. Ordering Respondent James Wilbur .J ustus elba James Automotive Service, and James

20 Wilbur Justus to pay the Bureau of Automotive Repair the reasonable costs of the investigation

2 1 and enforcement of this case, pursuant to Business and Professions Code section 125.3; and,

22

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7. Taking such other and further action as deemed necessary and proper.

24 DATED: /Y_qpqh ~ ztJ/.:f-PATRICK DORAIS

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

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( JAivlES WILBUR JUSTUS DBA JAM ES AUTOMOTIV E SERVICE and JAivlES WILBUR JUSTUS) ACCUSATION

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SD2017704045 81596838.ctoc

19 (JAMES WILBUR iUSTUS D.BAJAMES AUTOMOTIVE SERVICE and JAlVlES WILBUR WSTUS)

ACCUSATION

dra~guezbar.ca.gov/pdf/accusations/rc-17583_2017_09_08_dec.pdf9 to the issuance of subpoenas to...

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