JURISDICTION - bar.ca.gov · 13 .JOCSAN REYES, D13A EXPRESS SMOG CHECK 14 170 Depot Drive #2 Corona, CA 92882 15 16 17 18 19 20 21 22 23 ... 3 the Motor Vehicle Inspecti on Program

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XAVIER B ECERRA Attorney General of California GREGORY J. SALUTE Supervising Deputy Attorney General KEVIN W. M ESSER Deputy Attorney General State Bar o. 228548

600 West Broadway. Suite 1800 San Diego, CA 92 10 I P.O. Box 85266 San Diego, CA 92 186-5266 Telephone: (6 19) 738-9080 Facsimile: (619) 645-206 1

Attorneysfor Complainant

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9 BEFORE THE

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DEPARTMENT OF CONSUMER AFFAJRS FOR THE BUREAU OF AUTOMOTIVE REPAIR

STATE OF CALIFORNIA

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12 In the Matter of the Accusation Aga inst:

13 .JOCSAN REYES, D13A EXPRESS SMOG CHECK

14 170 Depot Drive #2 Corona, CA 92882

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Automotive Repair Dealer Registration No. ARD 283848, Smog Check-Test Only Station License No. TC 283848;

JOCSAN REYES 170 Depot Drive #2 Corona, CA 92882

Smog Check Inspector No. EO 633127, Smog Check Repair Technician No. EI 633127, (Former Advanced Emission Specialist No. EA 633127);

and

LUIS RENE ZAMORA 24 4208 Giles Court

Riverside, CA 92503 25

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Smog C heck Inspector No. EO 635335;

Respondents.

Case No. 79/ 16-20343

ACCUSATION

(JOCSAN REYES, DBA EX PRESS SMOG CHECK; JOCSAN REYES, and LUIS RENE ZAMORA) ACCUSATION

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Complainant al leges:

PARTIES

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

4 the Chief of the Bureau of Automot ive Repair, Department of Consumer Affairs.

5 2. On or about June I 0, 20 16, the Bureau of Automotive Repair (Bureau) issued

6 Automotive Repair Dealer Registration Number ARD 283848 to Jocsan Reyes, dba Express

7 Smog Check (Respondent Express Smog Check). The Automotive Repai r Dealer Registration

8 was in fu ll force and effect at all times relevant to the charges brought herein and will expire on

9 June 30, 2018, unless renewed.

10 3. On or about Ju ly 8, 20 16, the Bureau issued Smog Check Test Only Station License

11 Number TC 283848 to Respondent Express Smog Check. The Smog Check Test Only Station

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

13 expire on June 30, 2018, unless renewed.

14 4. On May 16, 20 II , the Bureau issued Advanced Emission Specialist (EA) Technician

15 License Number EA 633 127 to Jocsan Reyes (Respondent Reyes) . It was due to expire on July

16 31, 20 13, however it was cancell ed on July 26, 20 13. Pursuant to Californ ia Code of Regu lations,

17 tit le 16, section 3340.28, subdivision (e) 1, the license was renewed, pursuant to Reyes' election,

18 as Smog Check Inspector (EO) License No. 633 127 and Smog Check Repair Technician (El)

19 License No. 633127, effecti ve July 26, 20 13. The Smog Check Inspector (EO) License and the

20 Smog Check Repair Technician (EI) License were in fu ll force and effect at all times relevant to

21 the charges brought herein . The Smog Check Inspector (EO) License will expire on Ju ly 31,

22 20 19, unless renewed. The Smog Check Repair Technician (EI) License expired on July 31,

23 20 15, and has not been renewed.

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1 Effective August I, 201 2, Cal ifornia Code of Regulations, title 16, sections 3340.28, 3340.29, and 3340.30 were amended to im plement a license restructure from the Advanced Emission Special ist Technician (EA) license and Basic Area (EB) Technician license to Smog Check Inspector (EO) license and/or Smog Check Repa ir Technician (El) license.

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(JOCSAN REYES, DBA EXPRESS SMOG C HECK; JOCSAN REYES, and LUIS RENE ZAMORA) ACCUSATION

5. On or about March 22, 20 13, the Bureau issued Smog Check Inspector Number EO

2 635335 to Luis Rene Zamora (Respondent Zamora). The Smog Check Inspector (EO) License

3 will expire on May 3 1, 2019, unless renewed.

4 JURISDICTION

5 6. This Accusat ion is brought before the Director of the Department of Consumer

6 Affairs (Director) for the Bureau of Automotive Repair, under the authority of the fo llowing laws.

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

8 7. Section 11 8, subdivision (b), of the Code provides that the suspension, expiration,

9 surrender, or cancell ation of a li cense shall not deprive the Director of jurisdiction to proceed

10 with a disciplinary action during the period within which the li cense may be renewed, restored,

I 1 reissued or reinstated.

12 8. Section 9884.13 of the Code provides, in pertinent part, that the expiration of a valid

13 registration shall not deprive the director or chief of jurisdiction to proceed with a disciplinary

14 proceeding against an automoti ve repair dealer or to render a decision invalidating a registration

15 temporaril y or permanentl y.

16 9. Section 9884.20 of the Code states:

17 "All accusations against automotive repair dealers shall be tiled within three years after the

I 8 performance of the act or omission all eged as the ground for disciplinary action, except that with

19 respect to an accusation alleging fraud or misrepresentation as a ground for di sc ipl inary action,

20 the accusation may be til ed within two years after the discovery, by the bureau, of the alleged

21 facts constituting the fraud or misrepresentation."

22 10. Section 9884.22 of the Code states:

23 "(a) Notwithstand ing any other provision of law, the director may revoke, suspend, or deny

24 at an y time any registration required by thi s article on any of the grounds for disciplinary action

25 prov ided in thi s arti cle. The proceedings under thi s article shall be conducted in accordance with

26 Chapter 5 (commencing with Section 11 500) of Part I of Division 3 of Tit le 2 of the Government

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

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3 (JOCSAN REYES, DBA EX PRESS SMOG CH ECK; JOCSAN REYES, and LUIS RENE ZAMORA)

ACCUSATION

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

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

3 the Motor Vehicle Inspection Program.

4 12. Section 44072.4 of the Health and Safety Code states:

5 "The director may take disciplinary action against any licensee after a hearing as provided

6 in thi s article by an y or the lo llowing:

7 "(a) Imposing probation upon terms and condi tions to be set forth by the director.

8 "(b) Suspending the license.

9 "(c) Revoking the license."

10 13. Section 44072.6 of the Health and Safety Code provides, in pertinent part, that the

11 expiration or suspension of a license by operation of law, or by order or dec ision of the Director

12 of Consumer Affairs, or a court of law, or the vo luntary surrender of the license shall not deprive

13 the Director of jurisdiction to proceed with disciplinary action.

14 14. Sect ion 44072.7 of the Health and Safety Code states:

15 "All accusations against li censees shall be fil ed within three years after the act or omission

16 alleged as the ground for di sciplinary acti on, except that with respect to an accusation alleging a

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

18 the discovery by the bureau of the all eged facts constituting the fraud or misrepresentation

·19 prohibited by that section."

20 15. Section 44072.8 of the Health and Safety Code states:

2 1 "When a license has been revoked or suspended fo llowing a hearing under this article, any

22 add itional license issued under thi s chapter in the name of the li censee may be likewise revoked

23 or suspended by the director."

24 16. California Code of Regu lations, tit le 16, section 3340.28, subdivision (e) states that

25 "[u]pon renewal of an unexpired Basic Area Technician license or an Advanced Emiss ion

26 Specia list Technician license issued prior to the effective date of thi s regulation, the licensee may

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

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(JOCSAN REYES, DB A EXPRESS SMOG C HECK; JOCSAN RE YES, and LUI S RENE ZAMORA) ACCUSAT ION

STATUTORY PROVISIONS

2 17. Section 22 of the Code states:

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

4 administration of the provision is vested, and unless otherwise express ly provided, shall include

5 'bureau,' 'commission,' 'committee,' 'department,' 'division,' 'examining committee,' 'program,' and

6 'agency.'

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

8 Committee on Boards, Commiss ions, and Consumer Protection, as prov ided for in Division 1.2

9 (commencing with Section 473), is taken over by the department, that program shall be

10 des ignated as a 'bureau.'"

II 18. Section 23.7 of the Code states:

12 "Unless otherwise expressly prov ided, license means license, certificate, registration, or

13 other means to engage in a business or profess ion regulated by this code or referred to in Section

14 I 000 or 3600."

15 19. Section 9884.7 ofthe Code states:

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"(a) The di rector, where the automoti ve 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

automoti ve repai r dealer. which are do ne by the automoti ve repair dea ler or any automotive

technician, employee, partner, offi cer, or member of the automotive repair dealer.

" ( I ) Making or authori zing in any manner or by any means whatever any statement written

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

care should be known, to be untrue 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.

5 (JOCSAN REYES, DBA EX P RESS SMOG CH EC K; JO CSAN REY ES, and LUIS RENE ZAMORA)

ACCUSAT ION

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2 "(c) Notwithstanding subdi vision (b), the director may suspend , revoke, or place on

3 probation the registration for all places of business operated in thi s state by an automotive repair

4 dealer upon a fi nding that the automoti ve repair dealer has, or is, engaged in a course of repeated

5 and willful violations of thi s chapter, or regulations adopted pursuant to it."

6 20. Section 440 12 of the Health and Safety Code states:

7 "The test at the smog check stations shall be performed in accordance with procedures

8 prescribed by the department and may require loaded mode dynamometer testing in enhanced

9 areas, two-speed idle testing, testing utiliz ing a vehicle's onboard diagnostic system, or other

10 appropriate test procedures as determined by the department in consultation with the state board .

II The department shall implement testing using onboard diagnostic systems, in lieu of loaded mode

12 dynamometer or two-speed idle testing, on model year 2000 and newer vehicles only, beginning

13 no earlier than January 1, 201 3. However, the department, in consultation with the state board,

14 may prescribe alternati ve test procedures that include loaded mode dynamometer or two-speed

15 idle testing for vehicles with on board diagnostic systems that the department and the state board

16 determine exhibit operational problems. The department shall ensure, as appropriate to the test

17 method, the following:

18 "(a) Emiss ion control systems required by state and federal law are reducing excess

19 emissions in accordance with the standards adopted pursuant to subdivisions (a) and (c) of

20 Section 440 I 3.

2 1 "(b) Motor vehicles are preconditioned to ensure representati ve and stabili zed operation of

22 the vehicle 's emission control system.

23 .. (c) For other than diesel-powered vehicles, the vehicle's exhaust emissions of

24 hydrocarbons, carbon monoxide, carbon diox ide, and ox ides of nitrogen in an idle mode or loaded

25 mode are tested in accordance with procedures prescribed by the department. In determining how

26 loaded mode and evaporati ve e missions testing sha ll be conducted, the department shal l ensure

27 that the emission reduction targets for the enhanced program are met.

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(JOCSAN REYES, DBA EXPRESS SMOG CHECK; JOCSAN REYES, and LUIS RENE ZAMORA) ACCUSATION

"(d) For other than diese l-powered vehicles, the vehicle's fuel evaporati ve system and

2 crankcase ventilation system are tested to reduce any nonexhaust sources of vo latile organic

3 compound emiss ions, in accordance with procedures prescribed by the department.

4 "(e) For diese l-powered vehicles, a visual inspection is made of emission control devices

5 and the vehicle's exhaust emiss ions are tested in accordance with procedures prescribed by the

6 department, that may include, but are not lim ited to, onboard diagnostic testing. The test may

7 include testing of emiss ions of any or all of the pollutants specified in subdivision (c) and, upon

8 the adoption or applicable standards, measurement of emiss ions of smoke or particulates, or both .

9 "(f) A visual or functional check is made of emission control devices specified by the

10 department, including the catalytic converter in those instances in which the department

11 determines it to be necessary to meet the findings of Section 4400 I. The visual or functional

12 check shall be perfo rmed in accordance with procedures prescribed by the department.

13 "(g) A determination as to whether the motor vehicle complies with the emission standards

14 for that vehicle's class and model-year as prescribed by the department.

15 "(h) An ana lysis of pass and fail rates of vehicles subject to an on board diagnostic test and a

16 tailpipe test to assess whether any vehicles pass ing their onboard diagnostic test have, or would

17 have. fa il ed a tailpipe test, and whether any vehicles fa iling thei r onboard diagnostic test have or

18 would have passed a tai lpipe test.

19 "(i) The test procedures may authorize smog check stations to refuse the testing of a vehicle

20 that would be unsafe to test, or that cannot physically be inspected, as specified by the department

21 by regulation. The refusa l to test a vehicle for those reasons shall not excuse or exempt the

22 vehicle from compl iance wi th all app licable requirements of this chapter."

23 21. Section 440 15(a)(b) of the Health and Safety Code states:

24 "(a) A li censed smog check station shall not issue a certificate of compliance, except as

25 authorized by thi s chapter, to any vehicle that meets the fo llowing criteri a:

26 "(1) A vehi c le that has been tampered w ith.

27 "(2) A veh icle identified pursuant to subparagraph (K) of paragraph (3) of subdivision

28 (b) of Section 44036. A vehic le identified pursuant to subparagraph (K) of paragraph (3) of

7 (JOCSAN REYES, DBA EXPRESS SMOG C HECK; JOCSA N REYES, and LUIS RENE ZAMORA)

ACCUSATION

subdivision (b) of Section 44036 shall be directed to the depar1ment to determine whether an

2 inadvertent error can ex plain the irregularity, or whether the vehicle otherwise meets smog check

3 requirements, allowing the certificate for compliance to be issued, or the veh icle shall be

4 reinspected by a referee or another smog check station.

5 "(3) A vehicle that, prior to repairs, has been initially identified by the smog check

6 station as a gross polluter. Certification of a gross polluting vehicle shall be conducted by a

7 designated test-onl y fac ility, or a test-and-repair station that is both licensed and certified

8 pursuant to Sections 44014 and 44014.2.

9 "(4) A vehicle described in subdivision (c).

10 "(b) If a vehicle meets the requirements of Section 440 12, a smog check station licensed to

II issue certi licates sha ll issue a cert ificate of compliance or a cer1 ificate of noncompliance."

l2 22. Section 44032 of the Health and Safety Code states:

13 "No person shall perform, for compensation , tests or repairs of emission control devices or

14 systems of motor vehicles required by this chapter unless the person performing the test or repair

15 is a qualified smog check technician and the test or repair is performed at a licensed smog check

16 station. Qualified technicians shall perform tests of emiss ion control devices and systems in

17 accordance with Section 440 12."

18 23. Section 44035 of the Health and Safety Code states:

19 "(a) A smog check station's license or a qua lified smog check technician's qualification

20 may be suspended or revoked by the department, after a hearing, for failure to meet or maintain

2 1 the standards prescribed for qualification, equipment, performance, or conduct. The department

22 shall adopt rules and regulations governing the suspension, revocation, and reinstatement of

23 licenses and qualifi catiOflS and the conduct of the hearings.

24 "(b) The department or its representatives, including quality assurance inspectors, shall be

25 provided access to licensed stations for the purpose of examining property, station equipment,

26 repair orde rs, emi ss io ns eguipment mainte nance records, and any emi ss io n inspection items, as

27 defined by the department."

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(JOCSAN REYES, DB A EXPRESS SMOG CHECK; JOCSAN REYES, and LUIS RENE ZAMORA) ACCUSATION

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24. Section 44072.2 of the Health and Safety Code states:

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

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

following:

"(a) Violates any secti on of this chapter [the Motor Ve hicle 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 any act involving dishonesty, fraud , or deceit whereby another is injured.

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25. Section 44072.1 0 of the Health and Safety Code states:

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

13 pending a hearing conducted pursuant to subdivision (e), may temporaril y suspend any smog

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

IS if the department determi nes that the I icensee's conduct wo uld endanger the pub! ic health, safety,

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

17 ev idence of an y of the following:

18 "( J)Fraud.

19 "(2) Tampering.

20 "(3) Intentional or will ful violation of this chapter or any regulation , standard, or procedure

2 1 of the department implementing this chapter.

22 "( 4) A pattern or regular practice of violat ing thi s chapter or any regulation, standard, or

23 procedure of the department implementing this chapter.

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

26 licensee who fraudu lently cert ifies vehic les o r participates in the fraudulent inspection of

27 vehicles. A fraudulent inspection includes, but is not limited to, all ofthe fo llowing:

28 "( I) Clean piping, as defined by the department.

9 (JOCSAN REYES, DBA EXPRESS SMOG CHECK; JOCSAN REYES, and LUIS RENE ZAMORA)

ACCUSATION

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

2 "(3) Tampering with a vehicle in a manner that would cause the veh icle to false ly pass or

3 falsely fa il an inspection.

4 "(4) Intentional or will ful violation of this chapter or any regu lation, standard, or procedure

5 of the department implementing this chapter."

6 REGULATORY PROVISIONS

7 26. California Code of Regulations, title 16, section 3340.35(c), states:

8 "(c) A licensed station shall issue a certificate of compliance or noncompliance to the

9 owner or operator or any vehicle that has been inspected in accordance with the procedures

10 specified in section 3340.42 of this article and has all the required emission control equipment

II and devices insta lled and functioning correctly. The fo llowing conditions shall apply:

12 " ( I ) Customers shall be charged the same price for certificates as that paid by the

13 I icensed station; and

14 "(2) Sales tax shall not be assessed on the price of certificates."

15 27. California Code of Regulat ions, tit le 16, section 3340.4 1(c), states:

16 "(c) No person shall enter into the em issions inspection system any vehicle identification

17 in formation or emission control system identification data for any vehicle other than the one

18 being tested. Nor shall any person knowingly enter into the emissions inspection system any false

19 informat ion about the vehicle being tested."

20 28. California Code of Regulations, title 16, section 3340.42, states:

2 1 "Smog check inspection methods are prescribed in the Smog Check Manual, referenced by

22 section 3340.45.

23 "(a) All vehicles subject to a smog check inspection, shall receive one of the fo llowing test

24 methods:

25 "( I ) A loaded-mode test shall be the test method used to inspect 1976 - 1999 model-

26 year vehic le, except diese l-powered, registe red in the enhanced program areas o f the state. The

27 loaded-mode test shall measure hydrocarbon, carbon monox ide, carbon dioxide and oxides of

28 ni trogen emiss ions, as contained in the bureau's specifications referenced in subsection (a) of


ACCUSATION

Section 3340. 17 of this article. The loaded-mode test shall use Acce leration Simulation Mode

2 (ASM) test equipment, including a chassis dynamometer, ce11ified by the bureau.

3 On and after March 31, 20 I 0, exhaust emiss ions from a vehic le subject to this

4 inspection shall be measured and compared to the emiss ions standards shown in the Vehicle

5 Look-up Table (VL T) Row Specific Emissions Standards (Cutpoints) Table, dated March 20 I 0,

6 which is hereby incorporated by reference. ff the emissions standards for a specific vehicle are

7 not included in thi s table then the exhaust emissions shall be compared to the emissions standards

8 set forth in TABLE I or TABLE II, as applicab le. A vehicle passes the loaded-mode test if all of

9 its measured emissions are less than or equal to the applicable emiss ion standards specified in the

I 0 applicable tab le.

II "(2) A two-speed idle mode test shall be the test method used to inspect 1976- 1999

12 model-year vehicles, except diese l-powered, registered in all program areas of the state, except in

13 those areas o r the state where the enhanced program has been implemented. The two-speed idle

14 mode test shall measure hydrocarbon, carbon monoxide and carbon diox ide emissions at high

15 RPM and again at idle RPM, as contained in the bureau's specifications referenced in subsection

16 (a) of Section 3340.17 of thi s article. Exhaust emissions from a vehicle subject to thi s inspection

17 shall be measured and compared to the emission standards set forth in this section and as shown

18 in Table Ill. A vehicle passes the two-speed idle mode test if all of its measured emissions are less

19 than or equal to the app li cable em iss ions standards specified in Table Jl].

20 "(3) An OBD-focused test, shall be the test method used to inspect gasoline-powered

21 vehicles 2000 mode l-year and newer, and diesel-powered vehicles 1998 model-year and newer.

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

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

24 receive the fo llowing:

25 " (I) A visual inspection of emiss ion control components and systems to verify the

26 vehicle's emiss io n contro l systems are properly installed.

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II (JOCSAN REYES, DBA EXPRESS SMOG CHECK; JOCSAN REYES, and LUIS RENE ZAMORA)

ACCUSATION

"(2) A functional inspection of emiss ion control systems as specified in the Smog

2 Check Manual, referenced by section 3340.45, which may include an OBD test, to verify their

3 proper operation.

4 "(c) The bureau may require any combination of the inspection methods in sections (a) and

5 (b) under any of the following circumstances:

6 "( I) Vehicles that the department randoml y se lects pursuant to Health and Safety

7 Code section 44014.7 as a means of identifying potential operational problems with vehicle OBD

8 systems.

9 "(2) Vehicles identified by the bureau as being operationally or physically

10 incompatib le with inspection equipment.

I I "(3) Vehicles with OBD systems that have demonst rated operational problems.

12 "(d) Pursuant to section 39032.5 of the Health and Safety Code, gross polluter standards are

13 as follows:

14 "( I) A gross polluter means a vehic le with excess hydrocarbon, carbon monoxide, or

15 ox ides of nitrogen emiss ions pursuant to the gross polluter emissions standards included in the

16 tables described in subsection (a), as applicable.

17 "(2) Vehicles with emission leve ls exceeding the emission standards for gross

18 polluters during an initi al inspection will be considered gross polluters and the provisions

19 pertaining to gross polluting vehicles wi ll apply, including, but not limited to, sections 44014.5,

20 44015, and 44081 of the Health and Safety Code.

21 "(3) A gross polluting vehicle shall not be passed or issued a certificate of compliance

22 until the vehicle's emiss ions are reduced to or below the applicable emissions standards for the

23 vehicle included in the tables described in subsection (a), as applicable. However, the provisions

24 described in section 44017 of the Health and Safety Code may apply.

25 "(4) Th is subsection applies in all program areas statewide to vehicles requiring

26 inspecti on pursuant to secti o ns 44005 and 440 II of the Hea lth and Sa fety Code."

27 29. Cali fornia Code of Regulations, title 16, section 3340.45, states:

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12 (JOCSAN REYES, DBA EXPRESS SMOG CHECK; JOCSAN REYES, and LUIS RENE ZAMORA}

ACCUSATION

"(a) All Smog Check inspections shall be performed in accordance with requirements and

2 procedures prescribed in the fo ll owing:

3 "( I) Smog Check Inspection Procedures Manual , dated August 2009, which is hereby

4 incorported by reference. This manual shall be in effect unti I subparagraph (2) is implemented.

5 "(2) Smog Check Manual, dated 201 3, wh ich is hereby incorporated by reference.

6 This manual shall become effective on or after January I, 20 13."

7 30. California Code of Regu lations, title 16, section 3395.4, states:

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

9 (Government Code Sect ion 11 400 et seq.), including formal hearings conducted by the Office of

10 Administrati ve Hearing, the Bureau of Automotive Repair shall consider the disciplinary

II guide lines entitled ·Guidelines fo r Disciplinary Penalties and Terms of Probation ' [May, 1997]

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

13 Tenns of Probation ' are adv isory. Deviation from these guidelines and orders, including the

14 standard terms of probation, is appropriate where the Bureau of Automotive Repair in its sole

15 di scretion determines that the facts of the particular case warrant such deviation -for example: the

16 presence of mitigating factors; the age of the case; ev identiary problems."

17 COSTS

18 31. Section 125.3 of the Code provides, in perti nent part, that the Bureau may request the

19 administrative law judge to direct a I icentiate found to have committed a violation or violations of

20 the I icensing act to pay a sum not to exceed the reasonable costs of the investigation and

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

22 renewed or reinstated. If a case settles, recovery of in vestigation and enforcement costs may be

23 included in a stipu lated settlement.

24 CLEAN PLUGGING

25 32. At all times all eged in thi s Accusation, Respondents were acting in the course and

26 w ithin the scope o f a technic ian, empl oyee, partner, offi cer, o r member of Express Smog C heck.

27 33. The On-Board Diagnostics- Generation II (OB D II) communication protocol

28 describes the specified communication " language" used by the OBD 11 system electronic control

13 (JOCSAN REYES, DB A EX PRESS S MOG C HECK; JOCSAN REY ES, and LUIS RENE ZAMORA)

ACCUSATION

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

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

3 control unit during manufacture and does not change.

4 34. Parameter Identifications (PID) are data points reported by the OBD 11 system

5 electronic contro l unit to the scan tool or OIS. Examples of PIDs are engine speed (RPM ),

6 vehicle speed, engine temperature, and other input and output values utili zed by the OBD II

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

8 ll system electronic control unit and is programmed during manufacture.

9 35. The Vehicle Identificati on Number (YIN) that is phys ically present on all vehicles is

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

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

12 years. This electronicall y programmed YIN, also known as the ·'eVIN," is captured by BAR

13 during a Smog Check, and should match the physical YIN on the vehic le.

14 36. During a Bureau representative ' s rev iew of Respondents certified test results from

15 July 30, 20 16 to February 15, 2017, twe lve (12) veh icles identified below had a pattern of

16 differences between the veh icle communication protocol and PID count that was transmitted as

17 part ofthe smog inspection. These differences ind icate that the veh icles receiving smog

18 certificates were fraudulently tested during the smog check inspection by a method known as

19 Clean Plugging.2 A detailed ex planation of each fraudulent smog check is as follows:

20 a. Clean Plug # 1

21 OlS Test Data ind icates that on July 30,2016, a 2008 Nissan 350Z, YIN

22 JN I BZ34D58M703 128, was tested by and smog certificate ZF917309C was issued under

23 licensed Smog Check Techn ician EO 635335, Lui s Zamora. The OIS Test Data for the 2008

24 Nissan 350Z showed an incorrect eV I was transmitted as JN I BZ3AD58M703128, the

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communication protocol was transmitted as 19140808, and the PID count was 7. Similar Vehicle

2 To "clean plug" a vehicle, the technician uses another vehicle's properly functioning OBD Il system, or another source, to generate passing diagnostic read ings for the purpose of issuing fraudu lent smog certifi cates of compliance to vehicles that are not in smog compliance or not present during the certifi ed test.

14 (JOCSAN REYES, DBA EX PRESS SMOG C HECK; JOCSAN REYES, and LU IS RENE ZAMORA)

ACCUSATION

OIS Test Data for 2008 Nissan 350Z vehicles show they transmit the correct eVIN, they have an

2 expected communication protocol I CAN II bt5, and they transmit a Pro count of 43.

3 The di screpancies in the OIS Test Data prove the OIS Data Acquisition Device (DAD) was

4 not connected to the 2008 Nissan 350Z being certified, causing the issuance of a fraudulent Smog

5 Certificate of Compliance.

6 b. Clean Plug #2

7 OIS Test Data indicates that on August 15, 20 16, a 2008 Chevrolet Silverado C 1500, YIN

8 2GCEC 13J58 12526 11 , license number 2333 1 E I , was tested by and smog certificate ZF917319C

9 was issued under licensed Smog Check Techn ician EO 635335, Lui s Zamora. The OIS Test Data

10 for the 2008 Chevrolet Silverado C l500 showed the eVfN was transmitted as

11 2GCEC 13J58 12526 11 , the communication protocol was transmitted as 19 140808, and the PID

12 count was 8. Simi lar Vehicle OlS Test Data for 2008 Chevrolet Sil verado C 1500 vehicles show

13 they transmit the correct eVIN, they have an expected communication protocollCAN llbt5 , and

14 they transmit a PlD count of 44/7/8 or 46/4/5

15 The discrepancies in the Ol.S Test Data prove the OIS DAD was not connected to the 2008

16 Chevrolet Sil verado C 1500 being certified, causing the issuance of a fraudulent Smog Certificate

17 of Comp liance.

18 c. C lean Plug #3

19 OlS Test Data ind icates that on August 24, 201 6, a 20 14 Ram, Ram Truck 2500 SL T, VfN

20 3C6UR5DL4EG203718, was tested by and smog certificate ZF9 17324C was issued under

2 1 licensed Smog Check Techn ician EO 635335, Luis Zamora. The OlS Test Data for the 20 14

22 Ram, Ram Truck 2500 SL T showed the eVJN was transmitted as 3C6UR5DL4EG2037 l 8, the

23 communication protocol was transmitted as 19140808, and the PJD count was 8. Similar Vehicle

24 OJS Test Data for 20 14 Ram, Ram Truck 2500 SL T vehicles show they transmit the correct

25 eVJN, they have an expected commun ication protocol !CAN II bt5, and they transmit a PlD count

26 of 58 or 59.

27

28

15 (JOCSAN REYES, DBA EXPRESS SMOG CHECK; JOCSAN REY ES, and LUIS RENE ZAMORA)

ACCUSATION

The di screpancies in the OlS Test Data prove the OIS DAD was not connected to the 2014

2 Ram, Ram Truck 2500 SL T being certified , causing the issuance of a fraudulent Smog Certificate

3 of Compliance.

4 d. Clean Plug #4

5 OIS Test Data indicates that on September 24, 20 16, a 2006 Toyota Tacoma Pre Runner

6 Access Cab, YIN 5TETU62N36Z 153 154, li cense number 3138 1 X I, was tested by and smog

7 certificate ZF9 17344C was issued under licensed Smog Check Technician EO 635335, Luis

8 Zamora. The OIS Test Data fo r the 2006 Toyota Tacoma Pre Runner Access Cab showed the

9 eVIN was transmitted as 5TETU62N36Z 153 154, the communication protocol was transmitted as

tO 19140808, and the PID count was 7. Similar Vehicle OlS Test Data for 2006 Toyota Tacoma Pre

11 Runner Access Cab vehicles show they transmit the correct eV IN, they have an expected

12 communication protocoliCAN II bt5, and they transmit a PID count of 46.

13 Additional review of the OIS Test Data found that thi s 2006 Toyota Tacoma Pre Runner

14 Access Cab, V IN 5TETU62N36Z 153 154, was tested on September 12, 2016, at another smog

15 check station and failed the vis ual portion of the test as "Tampered" . OIS Test Detail from this

16 inspection documents the vehicle transmitted the correct eVIN, had the expected communication

17 protocol ICAN II bt500, and transmitted a PrD count of 46.

1.8 The discrepancies in the OIS Test Data prove the OIS DAD was not connected to the 2006

19 Toyota Tacoma Pre Runner Access Cab being certifi ed, caus ing the issuance of a fraudulent

20 Smog Certificate of Com pi iance.

2 1 e. C lean Plug #5

22 OIS Test Data indicates that on October 7, 2016, a 20 I 0 Chevrolet Aveo LS/LT, YIN

23 KL I TD5DE8AB 112384, li cense number 6MOE462, was tested by and smog certificate

24 QE814157C was issued under I icensed Smog Check Technician EO 635335, Luis Zamora. The

25 OfS Test Data for the 20 I 0 Chevrolet Aveo LS/L T showed the eVIN was transmitted as

26 KLITD5DE8A B112384, the communication protocol was transmitted as 19 140808, and the PID

27 count was 8. Similar Vehicle OIS Test Data for 20 I 0 Chevrolet Aveo LSIL T vehicles show they

28


ACCUSATION

transmit the correct eVIN, they have an expected commun ication protocol ICAN II bt5, and they

2 transmit a PID count of38, 38/7, or 38/7/ 15.

3 Additional review of the OIS Test Data found that thi s 2010 Chevrolet Aveo LS/LT, YIN

4 KL I TD5DE8AB 112384, was tested on October 6, 2016, at another station and fail ed the OBD-11

5 portion of this test due to Diagnosti c Trouble Codes POO 16 and P034 1 be ing stored in the vehicles

6 electronic control un it, and the vehicles Check Engine Light was commanded on. OIS Test Detail

7 from this inspection documents the vehicle transmitted the correct eVIN, had the expected

8 commun ication protocoiiCAN II bt500, and transmitted a PID count of38/7.

9 The di screpancies in the OIS Test Data prove the OIS DAD was not connected to the 2010

10 Chevrolet A veo LS/L T being certifi ed, causing the issuance of a fraudulent Smog Certificate of

II Compliance.

12 f. Clean Plug #6

13 OIS Test Data indicates that on November 18, 20 16, a 2007 Pontiac Grand Prix, YIN

14 2G2WP55227 120430 1, was tested by and smog certificate QG822247C was issued under

15 licensed Smog Check Technician EO 633 127, Jocsan Reyes. The OIS Test Data for the 2007

16 Pontiac Grand Prix showed no eV IN was transmitted, the commun ication protocol was

17 transmitted as 19140808, and the PID count was 8. Similar Vehicle OIS Test Data for 2007

18 Pontiac Grand Prix vehicles show they transmit the correct eVIN, they have an expected

19 communication protocol JVPW, and they transmit a PID count of 40 or 41.

20 The discrepancies in the OIS Test Data prove the OIS DAD was not connected to the 2007

21 Pontiac Grand Prix being certifi ed, causing the issuance of a fraudulent Smog Certificate of

22 Compliance.

23 g. C lean Plug #7

24 OIS Test Data indicates that on November 23, 20 16, a 2009 Toyota Prius, YIN

25 JTDKB20U99348650 I , license number 6RSX598, was tested by and smog certificate

26 QG994404C was issued under licensed Smog C heck Techni cian EO 633 127, Jocsan Reyes. The

27 OIS Test Data for the 2009 Toyota Prius shows that no eVIN was transmitted, the communication

28 protocol was transmitted as 19140808, and the PID count was 7. Similar Vehicle OIS Test Data

17 (JOCSAN REYES, DBA EXPRESS SMOG CHECK; JOCSA1 REYES, and LUIS RENE ZAMORA)

ACCUSAT ION

for 2009 Toyota Prius veh icles show they transmit the correct eV IN, they have an expected

2 communication protocol ICA N II bt5 , and they transmit a PID count of 37 or 38/21 or 38/21117.

3 The discrepancies in the OIS Test Data prove the OlS DAD was not connected to the 2009

4 Toyota Prius being certified, causing the issuance of a fraudulent Smog Certificate of

5 Compliance.

6 h. Clean Plug #8

7 OIS Test Data indicates that on November 23 , 2016, a 20 I 0 Kia Rio LX, YIN

8 KNADH4A30A661 0907, was tested by and smog certifi cate QG994407C was issued under

9 licensed Smog Check Technician EO 633127, Jocsan Reyes. The OlS Test Data for the 2010 Kia

10 Rio LX shows that no e VI N was transmitted, the communication protocol was transmitted as

II 19140808, and the PlD count was 5. Similar Vehicle OIS Test Data for 2010 Kia Rio LX

12 vehicles show they transmit the correct eVJN , they have an expected communication protocol

13 JCAN II bt5 , and they transmit a PID count of 16/33 or 33.

14 Additional review of the OIS Test Data found that this 20 10 Kia Rio LX, VIN

15 KNADH4A30A6610907, was tested earlier the same day at Express Smog Check by Jocsan

16 Reyes. The 20 10 Kia Rio LX failed this test because of incomplete Readiness Monitors. OJS

17 Test Detail from this inspection documents the vehicle transmitted the correct eVIN, had the

18 expected communication protocol I CAN II bt500, and transmitted a PID count of 16/33.

19 The di screpancies in the OIS Test Data prove the OIS DAD was not connected to the 2010

20 Kia Rio LX being certified, causing the issuance of a fraudulent Smog Certificate of Compliance.

21 I. Clean Plug #9

22 OfS Test Data indicates that on December 19, 2016, a 2005 Ford F250 Super Duty, YIN

23 IFTSW21P05EB09762, license number 1117681 , was tested by and smog certificate

24 ZL844927C was issued under licensed Smog Check Technician EO 633127, Jocsan Reyes. The

25 OIS Test Data for the 2005 Ford F250 Super Duty shows that no eVlN was transmitted, the

26 communication protocol was transmitted as 1.9140808, and the PlD count was 9. Similar Vehicle

27 OIS Test Data for 2005 Ford F250 Super Duty vehicles show they transmit the correct eVTN, they

28


ACCUSATION

have an expected communication protocol I CAN I I bt5, and they transmit a PlD count of24/ 13/0

2 or 25/13/0.


4 Ford F250 Super Duty being certified, causing the issuance of a fraudu lent Smog Certificate of

5 Compliance.

6 j . Clean Plug #10

7 OlS Test Data indicates that on December 29, 2016, a 2009 Nissan Maxima S, YIN

8 I N4AA51 EX9C835 ll 4, was tested by and smog certificate ZN217907C was issued under

9 licensed Smog Check Technician EO 633127, Jocsan Reyes. The OIS Test Data for the 2009

10 Nissan Maxima S shows that no eY IN was transmitted, the communication protocol was

11 transmitted as 19 140808, and the PID count was 8. Similar Vehicle OIS Test Data for2009

12 Nissan Maxima S vehicles show they transm it the correct eYIN, they had the expected

13 communication protocol I CAN I I bt5, and they transmit a PID count of 43.


15 Nissan Maxima S being certifi ed, causing the issuance of a fraudu lent Smog Certificate of

16 Compliance.

17 k. Clean Plug #11

18 OIS Test Data indicates that on February I 0, 2017, a 20 15 Nissan Versa NoteS, VIN

19 3N I CE2CPOFL402702, was tested by and smog certificate ZP 184245C was issued under

20 li censed Smog Check Technician EO 633 127, Jocsan Reyes. The OIS Test Data fo r the 2015

21 Nissan Versa NoteS shows the eYIN was transmitted as 3N I CE2CPOFL402702, the

22 communication protocol was transmitted as 19 140808, and the PlD count was 9. Similar Vehicle

23 OIS Test Data for 20 15 Nissan Versa NoteS veh icles show they transmit the correct eVIN, they

24 have an expected communication protocol I CAN II bt5 and they transmit a Pro count of 39 or

25 39116.

26 Additi onal review of the O IS Test Data found that th is 2015 N issan Versa NoteS, YIN

27 3N I CE2CPOFL402702, was tested on May 16, 20 16, at another station. The 2015 Nissan Versa

28 NoteS passed this Smog Check inspection. OIS Test Detail from this inspection documents the

19 (JOCSAN REYES, DBA EXPRESS SMOG CH ECK; JOCSAN REY ES, and LUIS RENE ZAMORA)

ACCUSATION

vehicle transmitted the correct eVfN, had the expected communication protocol ICAN ll bt500,

2 and transmitted a PID count of 39/16.

3 The discrepancies in the OIS Test Data prove the OIS DAD was not connected to the 20 15

4 Nissan Versa NoteS being certifi ed, causing the issuance of a fraudulent Smog Certificate of

5 Compliance.

6 I. Clean Plug #12

7 OIS Test Data indicates that on February 15, 2017, a 2007 Cadillac DTS, YIN

8 I G6KD57Y67U 165742, was tested by and smog certificate ZP672306C was issued under

9 licensed Smog Check Technician EO 633 127, Jocsan Reyes. The OIS Test Data for the 2007

10 Cadi llac DTS shows that an incorrect eV!N was transmitted, the communication protocol was

11 transmitted as 19140808, and the PID count was 8. Similar Vehicle OIS Test Data for 2007

12 Cadillac DTS vehicles show they transmit the correct eVfN, they have an expected

13 communication protocol ICAN II bt5 , and they transmit a PID count of 44/7.


15 Cadillac DTS being ce11ified, causing the issuance of a fraud ulent Smog Certifi cate of

16 Compliance.

17 FIRST CAUSE FOR DlSClPLINE

18 (U ntrue or Misleading Statement)

19 3 7. Complainant re-al leges and incorporates by reference the allegations set forth above

20 in the foregoing paragraphs.

2 1 38. Respondent Express Smog Check's Registration is subject to disciplinary action

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

23 Respondent knew or in the exercise of reasonab le care should have known to be untrue or

24 mislead ing.

25 39. Respondent certified that the vehicles listed in paragraph 36, subparagraphs a.

26 thro ugh 1. , had passed in specti on and were in co mpli ance w ith a ll applicable laws and regulations,

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

28 issue fraudulent certificates of compliance.


ACCUSATION

SECON D CAUSE FOR DISCIPLINE

2 (Violation of Motor Vehicle Inspection Program)

3 40. Complainant re-al leges and incorporates by reference the allegations set forth above

4 in the fo regoing paragraphs.

5 4 1. Responden t Express Smog Check 's Smog Check Test Only Station License is subject

6 to discipli nary action under Hea lth and Safety Code sections 44072.10, subdivisions (a) and (c)

7 and 44072.2, subdi vision (a), in that Respondent failed to comply with the following sections of

8 that Code:

9 a. Section 44012 : failed to perform the tests of the emiss ion control systems and

10 devices on the veh icles listed in paragraph 36, subparagraphs a. through 1., in accordance with

II procedures prescribed by the Department.

12 b. Section 44015, subd. (a) and (b) : issued a certificate of compliance fo r the veh icles

13 li sted in paragraph 36, subparagraphs a. through 1. , without properly testing and inspecting them

14 to determine ifthey were in comp li ance wi th Hea lth & Safety Code secti on 44012.

15 c. Section 44035: failed to meet or maintain the standards prescribed for qual ification,

16 equipment, performance, or conduct by fai ling to properly perform a smog inspection on the

17 vehicles li sted in paragraph 36, subparagraphs a. through 1. , or certifying that such tests had been

18 performed, when in fact they were never performed .

19 THIRD CAUSE FOR DISCIPLINE

20 (Fa ilure to Comply with regulations Pursuant to the Motor Vehicle Inspection Program)

2 1 42. Compla inant re-al leges and incorporates by reference the allegations set fo rth above


23 43. Respondent Express Smog Check 's Smog Check Test Only Station License is subject

24 to disciplinary action under Health and Safety Code sections 44072.10, subd ivisions (a) and (c)

25 and 44072.2, subdi vision (a), in that Respondent failed to comply with the following sections of

26 T itle 16, Califo rnia Code o f Regu lations:

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

28 paragraph 36, subparagraphs a. through 1. , in accordance with the procedures specified in section

2 1 (JOCSAN REYES, DBA EXPRESS SMOG CHECK; JOCSAN REYES, and LUIS RENE ZAMORA)

ACCUSATION

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

2 contro l equipment and devices installed and functioning correctly.

3 b. Section 3340.41, subdivision (c): knowingly entered into the Emissions Inspection

4 System fal se information about the veh icles listed in paragraph 36, subparagraphs a. through 1. ,

5 providing results for smog inspections wh ich were not actuall y performed.

6 c. Section 3340.42: fai led to conduct the required smog tests on the vehicles listed in

7 paragraph 36, subparagraphs a. through 1., in accordance with the Bureau's specifications.

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

9 paragraph 36, subparagraphs a. through 1. , in accordance with the Smog Check Manual, dated

10 201 3.

II FOURTH CAUSE FOR DISCIPLINE

12 (Dishonesty, Fraud, or Deceit)

13 44. Complai nant re-a l leges and incorporates by reference the al legations set forth above

14 in the forego ing paragraphs.

15 45. Respondent Express Smog Check's Registration is subject to disciplinary action

16 under Code section 9884.7, subdivision (a)(4) and Respondent Express Smog Check 's Smog

17 Check Test Only Station License is subject to disciplinary action under Health and Safety Code

18 sections 44072.10, subdi vision (a) and (c) and 44072.2, subdivision (d), in that Respondent

19 committed dishonest, fraudulent, or deceitful acts whereby another is injured by issuing a smog

20 certificate of compliance for the vehicles listed in paragraph 36, subparagraphs a. through 1. ,

21 without performing bona fide inspect ions of the emission control devices and systems on the

22 vehicles, thereby depri vi ng the People of the State of Califo rnia of the protection afforded by the

23 Motor Vehicle Inspection Program.

24 FIFTH CAUSE FOR DISCIPLINE


26 46. Complainant re-al leges and incorporates by reference the allegations set forth above


28


ACCUSATION

47. Respondent Reyes' Smog Check Inspector License and Smog Check Repair

2 Technician License are subject to di sciplinary action under Health and Safety Code sections

3 44072. 10, subdivisions (a) and (c) and 44072.2, subdi vision (a), in that Respondent failed to

4 comply with the fo llowing sections of that Code:

5 a. Section 44012 : fa iled to perform the tests of the emiss ion control systems and

6 devices on the vehicles li sted in paragraph 36, subparagraphs f. through 1., in accordance with

7 procedures prescribed by the Department.

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

9 I is ted in paragraph 36, subparagraphs f. through 1. , without properly testing and inspecting them

10 to determ ine if they were in compliance with Health & Safety Code section 44012.

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

12 equipment, performance, or conduct by failin g to properly perfo rm a smog inspection on the

13 vehicles I is ted in paragraph 36, subparagraphs f. thro ugh 1. , or certifying that such tests had been

14 performed, when in fact they were never performed.

15 d . Section 44032: fa il ed to test emission control devices and systems in accordance

16 with Section 4401 2 on the vehicles li sted in paragraph 36, subparagraphs f. through I.

17 SIXTH CAUSE FOR DISCIPLINE

18 (Failure to Comply with Hegulations Pursuant to the Motor Vehicle Inspection Program)

19 48. Complainant re-alleges and incorporates by reference the allegations set fo rth above


21 49. Respondent Reyes ' Smog Check Inspector License and Smog Check Repair

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

23 44072. 10, subdi visions (a) and (c) and 44072.2, subdi vision (a) in that Respondent fail ed to

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

25 a. Section 3340.35, subdivision (c): failed to inspect and test the vehicles li sted in

26 paragraph 36, subparagraphs f. through 1., in accordance with the procedures specified in section

27 3340.42 of the Regulations and failed to ensure that the vehicles li sted in paragraph 36,

28


ACCUSATION

subparagraphs f. through 1. , had all the required emiss ion control equipment and devices installed

2 and functioning correctly.

3 b. Section 3340.41, subdivision (c) : knowi ng! y entered into the Emissions Inspection

4 System false information about the vehicles listed in paragraph 36, subparagraphs f. through 1.,

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

6 c. Section 3340.42: fail ed to conduct the required smog tests on the vehicles listed in

7 paragraph 36, subparagraphs f. through 1. , in accordance with the Bureau's specifications.

8 d. Section 3340.45: fail ed to conduct the required smog tests on the vehicles listed in

9 paragraph 36, subparagraphs f. through 1., in accordance with the Smog Check Manual, dated

10 201 3.

II SEVENTH CAUSE FOR DISCIPLINE

12 (Dishonesty, Fraud, or Deceit)

13 50. Complainant re-alleges and incorporates by reference the allegations set forth above


15 51. Respondent Reyes' Smog Check Inspector License and Smog Check Repair

16 Technician License are subject to di sciplinary action under Health and Safety Code sections

17 44072.10, subdivision (a) and (c) and 44072.2, subdivision (d), in that Respondent committed

18 dishonest, fraudulent, or deceitfu l acts whereby another is injured by issuing a smog certificate of

19 compliance fo r the vehicles li sted in paragraph 36, subparagraphs f. through 1., without

20 performing bona fide inspections of the emiss ion contro l devices and systems on the vehicles,

2 1 thereby depri ving the People of the State of Cali fornia of the protection afforded by the Motor

22 Vehic le Inspection Program.

23 EIGHTH CAUSE FOR DISCIPLINE


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


27

28


ACCUSATION

53. Respondent Zamora 's Smog Check Inspector License is subject to di scipl inary action

2 under Health and Safety Code sections 44072.10, subdivisions (a) and (c) and 44072.2,

3 subdivision (a), in that Responden t fa iled to comply with the fo llowing sections of that Code:

4 a. Section 44012: fai led to perfo rm the tests of the emission control systems and

5 devices on the vehicles listed in paragraph 36, subparagraphs a. th rough e., in accordance with

6 procedures prescribed by the Department.

7 b. Section 44015, subd. (a) and (b): issued a cert ificate of compliance fo r the veh icles

8 listed in paragraph 36, subparagraphs a. through e. , wi thout properly testing and inspecting them

9 to determine if they were in compliance with Health & Safety Code section 440 12.

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

II equipment, performance, or conduct by fai ling to properly perform a smog inspection on the

12 vehicles li sted in paragraph 36, subparagraphs a. through e. , or certifying that such tests had been

13 performed, when in fact they were never performed.

14 d. Section 44032 : fail ed to test em ission control dev ices and systems in accordance

15 with Section 440 12 on the veh icles li sted in paragraph 36, subparagraphs a. through e.

16 NINTH CAUSE FOR DISCIPLINE

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

18 54. Complainant re-a ll eges and incorporates by reference the allegations set forth above

19 in the forego ing paragraphs.

20 55. Respondent Zamora 's Smog Check Inspector License is subject to di sciplinary action

21 under Health and Safety Code sections 44072. 10, subdivisions (a) and (c) and 44072.2,

22 subdivision (a) in that Respondent fai led to comply with the fol lowing sections of Title 16,

23 Ca li fornia Code of Regulations:

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

25 paragraph 36. subparagraphs a. through e. , in accordance with the procedures speci fi ed in section

26 3340.42 o f the Regulatio ns and fa iled to ensure that the veh icles listed in paragraph 36,

27 subparagraphs a. through e. , had all the required emiss ion control equipment and devices installed

28 and functioning correctly.

25 (JOCSAN REYES, DB A EXPRESS SMOG CHECK; JOCSAN REYES, and LUIS RENE ZAMORA}

ACCUSATION

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

2 System fal se in formation about the vehic les listed in paragraph 36, subparagraphs a. through e.,

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

4 c. Section 3340.42 : fai led to conduct the required smog tests on the vehicles listed in

5 paragraph 36, subparagraphs a. through e., in accordance with the Bureau's specifications.

6 d. Section 3340.45: fa il ed to conduct the required smog tests on the vehicles listed in

7 paragraph 36, subparagraphs a. through e. , in accordance with the Smog Check Manual, dated

8 2013.

9 TENTH CAUSE FOR DISCIPLINE

I 0 (Dishonesty, Fraud, or Deceit)

II 56. Complainant re-al leges and incorporates by reference the allegations set forth above


13 57. Respondent Zamora 's Smog Check Inspector License is subject to di sciplinary action

14 under Health and Safety Code sections 44072.19, subdivision (a) and (c) and 44072.2,

15 subdi vision (d), in that Respondent committed dishonest, fraudu lent, or deceitful acts whereby

16 another is injured by issuing a smog certificate of compl iance for the vehicles listed in paragraph

17 36, subparagraphs a. through e., without performing bona fide inspections of the emission control

18 devices and systems on the vehicles, thereby depriv ing the People of the State of California of the

19 protection afforded by the Motor Vehicle Inspection Program.

20 OTHER MATTERS

2 1 58. Under Code section 9884.7 , subdivi sion (c), the Director may suspend, revoke or

22 place on probation the Registration for all places of business operated in this State by Respondent

23 Reyes upon a finding that Respo ndent has, or is, engaged in a course of repeated and wi llful

24 vio lations of the laws and regulations pertaining to an automoti ve repair dealer.

25 59. Under Health & Safety Code section 44072.8, if Respondent Express Smog Check 's

26 Smog Check Test On ly Station License is revoked or suspended, the Director may likewise

27 revoke or suspend any additiona l license issued under Chapter 5 of Part 5 of Division 26 of the

28 Health and Safety Code in the name of Respondent Reyes.

26 (JOCSAN REYES, DBA EXPRESS SMOG CHECK; JOCSAN REYES, and LUI S RENE ZAMORA)

ACCUSATION

------------------------------------------------------------------- ..

60. Under Health and Safety Code section 44072.8, if Respondent Reyes' Smog Check

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

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

4 Reyes may be likewise revoked or suspended by the Director.

5 61. Under Health and Safety Code section 44072.8, if Respondent Zamora's Smog Check

6 Inspector License is revoked or suspended, any additional li cense issued under the Motor Vehicle

7 Inspection Program in the name of Respondent Zamora may be likewise revoked or suspended by

8 the Director.

9 PRAYER

I 0 WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,

II and that following the hearing, the Director of Consumer Affa irs issue a decision:

12 I. Revoking, suspending or placing on probation Automoti ve Repair Dealer Registration

13 No. ARD 283848, issued to Jocsan Reyes, dba Express Smog Check;

14 2. Revok ing, suspending or placing on probation any other the automotive repair dealer

15 registration in the name of Jocsan Reyes;

16 3. Revoking, suspending or placing on probation Smog Check Station License No. TC

17 283848, issued to Jocsan Reyes, dba Express Smog Check;

18 4. Revoking, suspending or placing on probation Smog Check Inspector EO License

19 No. 633 127 and Smog Check Repair Technician Num ber El 633 127, issued to Jocsan Reyes;

20 5. Revoking, suspending or placing on probat ion any add itional license issued under

21 Chapter 5 of Patt 5 of Division 26 of the Health and Safety Code in the name of Jocsan Reyes;

22 6. Revoking, suspending or placing on probation Smog Check Inspector EO License

23 No. 635335, issued to Luis Rene Zamora;

24 7. Revoking, suspending or placing on probation any addi tional license issued under

25 Chapter 5 of Patt 5 of Div ision 26 of the Health and Safety Code in the name of Luis Rene

26 Zamora;

27

28

27 (JOCSAN REYES, DBA EXPRESS SMOG C HECK ; JOCSAN REYES, and LUIS RENE ZAMORA)

ACCUSATION

8. Ordering Jocsan Reyes, dba Express Smog Check; Jocsan Reyes; and Luis Rene

2 Zamora to pay the Bureau of Automotive Repair the reasonable costs of the investigation and

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

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II

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

DATED:

SD20 17705552

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

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(JOCSAN REYES, DBA EXPRESS SMOG CHECK; JOCSAN REYES, and LUIS RENE ZAMORA) ACCUSATION

Documents

JURISDICTION - bar.ca.gov · 13 .JOCSAN REYES, D13A EXPRESS SMOG CHECK 14 170 Depot Drive #2 Corona, CA 92882 15 16 17 18 19 20 21 22 23 ... 3 the Motor Vehicle Inspecti on Program