791 S~Slbar.ca.gov/pdf/accusations/tc-277233_2018_03_26_acc.pdf · A-SHAM SMOG CENTER; SHAM KUMAR...

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

XAVIERBECERRA . Attorney General of California DIANN SOKOLOFF Supervising Deputy Attorney General TIMOTHY J. MCDONOUGH Deputy Attorney General State Bar No. 235850

1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550 Telephone: ( 510) 879-0294 Facsimile: (510) 622-2270 E-mail: [email protected]

Attorneys for Complainant

BE.FORE THE DEPARTMENT OF CONSUMER AFFAfilS

FOR THE BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

11----------------

In the Matter of the Accusation Against:

A-SHAM SMOG CENTER; SHAM KUMAR (Owner) 1051 Richard Ave. Santa Clara, CA 95050

Automotive Repail' Dealer Registration No. ARD 277233

Smog Check Station License No. TC 277233

Case No. 791 l 7.-1 S~Sl.f

ACCUSATION

18 . And

SHAM KUMAR 2151 Main Street, #10 Santa Clara, CA 95050

Smog Check Inspector License No. EO 635373

Respondents.

Complainant alleges:

PARTIES

19

20

21

22

23

24

25

26 1. Patrick Dorais (Complainant) brings this Accusation solely in his official capacity as

27 the Chief of the Bureau of Automotive Repair, Department of Consumer Affairs.

28

1

ACCUSATION

I

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2. On or about-July 14, 2014, the Bureau of Automotive Repair issued Automotive

Repair Dealer Registration No. ARD 277233 to A-Sham Smog Center; Sham Kumar-Owner

(Respondent A-Sham). The Automotive Repair Dealer Registration was in full force and effect at

all times relevant to the charges brought in this Accusation and will expire on July 31, 2018,

unless renewed.

3. On or about September 9, 2014, the Bureau of Automotive Repair issued Smog

Check Station License No. TC 277233 to A-Sham Smog Center; Sham Kumar-Owner

(Respondent A-Sham). The Smog Check Station License was in full force and effect at all times

relevant to the charges brought in this Accusation and will expire on July 31, 2018, unless

renewed,

4. On or about April 4, 2013, the Bureau of Automotive Repair issued Smog Check

Inspector License No. EO 635373 to Sham Kumar (Respondent Kumar), The Smog Check

Inspector License was in full force and effect at all times relevant to the charges brought in the

Accusation and will expire on June 30, 2019, unless renewed.

JURISDICTION

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

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

6, Business and Professions Code (Code) section 118, subdivision (b ), provides that the

suspension, expiration, surrender, or cancellation of a license shall not deprive the Board,

Registrar, or Director of jurisdiction to proceed with a disciplinary action during the period within

which the license may be renewed, restored, reissued or reinstated,

7. Section 9884. l 3 of the Code provides, in relevant part, that the expiration of a valid

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

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

temporarily or permanently.

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

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

the Motor Vehicle Inspection Program.

2

ACCUSATION

I 9. Section 44072.6 of the Health and Safety Code provides, in relevant part, that the

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

3 of Conswner Affairs, or a court of law, or the voluntary surrender of the license shall not deprive

4 the Director of jurisdiction to proceed with disciplinary action.

5 I 0. Code section 477 provides, in relevant part, that "Board" includes "bureau,"

6 "commission," "committee," "department," "division," "examining committee," "program," and

7 "agency." "License" includes certificate, regis(rntion or other means to engage in a business or

8 profession regulated by tl1e code.

9 STATUTORY PROVISIONS

10 11. Section 9884.7 of the Code states, in relevant part:

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

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

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

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

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

16 "(1) Making or aufuorizing in anymam1er or by any means whatever any statement written

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

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

19

20 "( 4) Any other conduct which constitutes fraud.

21

22 "(6) Failure in any material respect to comply witl1 the provisions of this chapter or

23 'regulations adopted pursuant to it."

24 12. Section 9889.22 of the Code states:

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

26 oath, affidavit, certificate of compliance or noncompliance, or application form which is required

27 by this chapter or Chapter 5 (commencing with Section 44000) of Part 5 of Division 26 of the

28 Healtl1 and Safety Code constitutes pe1jury and is punishable as provided in the Penal Code."

3

ACCUSATION

1 13. Section 44012, subdivision (f) of the Health and Safety Code states:

2 "The test at the smog check stations shall be performed in accordm1ce with procedures

3 prescribed by the department, pursuant to Section 44013, shall require, at a minimum, loaded

4 mode dynamometer testing in enhmiced areas, and two-speed testing in all other program areas,

5 and shall ensure all of the following:

6

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

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

9 determines it to be necessary to meet the findings of Section 44001. The visual or functional

1 O check .shall be performed in accordance with procedures prescribed by the department."

11 14. Section 44015 of the Health m1d Safely Code states, in relevant pmi:

12 "(b) If a vehicle meets the requirements of Section 44012, a smog check station licensed to

13 issue certificates shall issue a certificate of compliance or a certificate ofnoncomplimice."

14 15, Section 44032 of the Health and Safety Code states, in relevant part:

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

16 systems of motor vehicles required by this chapter unless the person perfonning the test or repair

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

18 station. Qualified technicians sha11 perform tests of emission control devices and systems in

19 accordance with Section 44012."

20 REGULATORY l'ROVISIONS

21 16. California Code of Regulations, title 16, section 3373, states:

22 "No automotive repair dealer or individual in charge sha11, in filling out mi estimate,

23 invoice, or work order, or record required to be maintained by section 3340.lS(f) of this chapter,

24 withhold therefrom or insett therein any statement or information which will cause any such

25 document to be false or misleading, or where the tendency or effect thereby would be to mislead

26 or deceive customers, prospective customers, or the public."

27 Ill

28 Ill

4

ACCUSATION

1 17. California Code of Regulations, title 16, section 3340.30, states, in relevant part:

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

3 requirements at all times while licensed:

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

5 Health and Safety Code, section 44035 of the Health and Safety Code, and section 3340.42 of this

6 article."


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

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

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

11 and devices installed and functioning correctly. T11e following conditions shall apply:

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

13 station; and

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

15 19. California Code of Regulations, title 16, section 3340.41, states, in relevm1t part:

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

17 information or emission control system identification data for miy vehicle other thm1 the one being

18 tested. N 01· shall any person lmowingly enter into the emissions inspection system m1y false

19 information about the vehicle being tested."


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

22 section 3340.45.

23

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

25 receive the following:

26

27

28

5

ACCUSATION

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

2 Manual, referenced by section 3340,45, which may include an OBD test, to verify their proper

3 operation."


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

6 procedures prescribed in the following:

7

8 "(2) Smog Check Manual, dated 2013, which is hereby incorporated by reference. This

9 manual shall become effective on or after January 1, 2013."

1 O COST RECOVERY

11 22. Section 125.3 of the Code provides, in relevant part, that a Board may request the

12 administrntive law judge to direct a licentiate found to have committed a violation or violations of

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

14 enforcement of tl1e case.

15 FACTUAL ALLEGATIONS

16 23. Bureau representative Kim Smith (Smith) conducted a detailed review of the

17 vehicle information database (VID) for smog check inspections performed at A-Sham Smog

18 Center, Smith reviewed the OIS Data for vehicles inspected by Respondent Kumar using the

19 BAR-OIS at A-Sham Smog Center between November 6, 2017, and December 15, 2017. During

20 Smith's investigation, she accessed the Vehicle hlformation Database (VID), and performed a

21 focused review o:fBAR-OIS test data for A-Sham Smog Center. BAR-OIS test data is tl1e OBD

22 information transmitted during a smog inspection from the computer of the vehicle being

23 inspected to the BAR-OIS. Beginning March 9, 2015, California's Smog Check Program was

24 updated and now requires smog inspectors and stations to use tl1e BAR-OIS computer system

25 during smog inspections, for most model-year 2000 and newer gasoline and hybrid vehicles, and

26 most 1998 and newer diesel vehicles. The BAR-OIS consists of a BAR-certified Data

27 Acquisition Device (DAD), computer, bar code scaimer, and printer. The DAD serves as an on-

28 board diagnostic (OBD) scan tool. The DAD is an interface box that com1ects the computer

6

ACCUSATION

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

containing the BAR-OIS software to the diagnostic link connector (DLC) of the vehicle being

inspected. When requested by the BAR-Ors software, the DAD retrieves data from the vehicle's

on-bom·d computer system (OBD II).

24, The information obtained by the BAR-OIS software during a smog inspection is

organized in a detailed inspection report for each vehicle inspected and is !mown as a BAR-OIS

Test Detail. The BAR-Ors Test Detail contains information segregated into eight different blocks

titled as follows: Station, Vehicle, Test Status, Visual Details, Functional Details, OBDII Details,

OBDII Readiness Monitor Status, and OBDII DTC Details. For the purposes of Smith's

investigation of A-Sham Smog Center, she focused on infonnation in the "Vehicle" and "OBDII

Details" blocks because they contain a unique combination of information for the vehicle being

inspected and "like vehicles" inspected, Like vehicles are vehicles of the same 111anufact11rer,

model, and model year that were inspected on the BAR-OIS, The unique combination of

information analyzed by Smith includes the eVIN, PIO count, and communication protocol.

Smith compared the eVIN, communication protocol, and PID count for a vehicle that was

certified to like vehicles,

25, Smith identified fifteen vehicles certified by Respondents A-Sham and Kumar

between November 6, 2017 m1d December 15, 2017, that failed to transmit the expected eVIN,

protocol, or PID coimt. The data transmitted during Respondent Kumar's inspections either

differed from the ors data the vehicles transmitted dlll'ing other inspections, or the data was

inconsistent with the OIS data transmitted by "like vehicles" inspected, or both,

26. The OIS Data transmitted by the vehicles during the other inspections was

consistent witl1 the OIS Data transmitted by like vehicles inspected, The ors Data transmitted by

the fifteen vehicles identified by Smith was not consistent with OIS Data for like vehicles

inspected.

27, Smith's review of The BAR.ors data for the vehicles certified by Respondents A-

Shain and Kumar dlll'ing the above time period revealed a pattern of fraudulent smog inspections

that resulted in tl1e issum1ce of fraudulent certificates of compliance. There were at least fifteen

instances in which Respondent Kmnar certified vehicles that were not connected to the DAD

7

ACCUSATION

1 during the smog inspection. Respondent Kumar therefore clean-plugged fifteen vehicles,

2 resulting in Respondent A-Sham issuing fifteen fraudulent Certificates of Compliance between

3 November 6, 2017 and December 15, 2017. The details of each instance of clean plugging are as

4 follows:

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

28. Clean Plug Number 1:

a. Smith's review of111e O!S test OBD Inspection List for A-Sham Smog Center

indicated that on November 6, 2017, Respondent Kumar inspected a 2004 Ford Fl 50, VlN

1FTVX12514NA26857, and Respondent A-Sham issued Smog Certificate of Compliance No,

I-IJ020232C. The OIS Test Data shows that during Kumar's inspection, no cVlN was transmitted,

the communication protocol was 1914, and the PIO count was 16. Similar OIS Test Data for

approximately 196 like 2004 Ford Fl50 vehicles show that 97.4% of the time they transmit their

eVIN, they have the expected communication protocol oflCANl lbt5, and they transmit a PID

count of 27.

b. On March 9, 2016, the same 2004 Ford F150, VIN 1FTVX12514NA26857, passed a

BAR-OIS•inspection at another stt1tion. During that inspection, the correct eVIN m1mber of

1FTVXl25 l 4NA26857 was transmitted, the expected commimication protocol oflCANI 1 bt5

was transmitted, and the PID count was 27.

29. Clean Plug Number 2:

a, Smith's review of the OIS test OBD Inspection List for A-Sham Smog Center

20 indicated that on November 6, 2017, Respondent Kumar inspected a 2007 Audi S8 Quattro, VlN

21 WAUPN44El 7N010236, and Respondent A-Shmn issued Smog Cettificate of Compliance No.

22 HJ020233C. The OIS Test Data shows that dm-ing Kumar's inspection, no eVlN was transmitted,

23 the communication protocol was listed as 1914, and the PID cmmt was 16. Similar OIS Test Data

24 for approximately 102 lilce 2007 Audi SS Quattro vehicles show that 99.0% of the time they

25 transmit their e VIN, have an expected communication protocol of ICANl 1 bt5, mid they transmit

26 a PID count of 44/14/42.

27 b, On December 4, 2015, the same 2007 Audi S8 Quattro, VlN

28 WAUPN44El 7NOI 0236, passed a BAR-OIS inspection at m1other station. During that

8

ACCUSATION

1 inspection, the correct evIN·number ofWAUPN44E17N010236 was transmitted, the expected

2 communication protocol ofICANI 1 bt5 was transmitted, and the PIO count was 44/14/42.

30, Clean Plug Number 3: 3

4 a. Smith's review of the ors test OBD Inspection List for A-Sham Smog Center

5 indicated that on November 6, 2017, Respondent Kumar inspected a 2006 Chevrolet Silverado

6 C2500 Heavy Duty, VIN 1 GCHC23U56Fl 79808, and Respondent A-Sham issued Smog

7 Certificate of Compliance No. HJ020234C. The ors Test Data shows that during Kumar's

8 inspection, no e VIN was transmitted, the communication protocol was listed as 1914, and the PID

9 count was 16. Comparative ors Test Data for approximately 396 like 2006 Chevrolet Silverado

1 O C2500 Heavy Duty vehicles show that 98.2% of the time they transmit their eVIN, they transmit a

11 communication protocol of JVPW, and they transmit a PID coimt of 22.

12 b. On November 10, 2015, the same 2006 Chevrolet Silverado C2500 Heavy Duty,

13 VIN 1 GCHC23U56Fl 79808, passed a BAR-Ors inspection at another station. During that

14 inspection, the correct eVIN of 1 GCHC23U56Fl 79808 was transmitted, the expected

15 commimication protocol of JVPW was transmitted, and the PID count was 22.

31. Clean Plug Number 4: 16

17 a. Smith's review of the OIS test OBD hlspection List for A-Sham Smog Center

18 indicated that on November 6, 2017, Respondent Kmnar inspected a 2009 Honda Fit, VIN

19 JHMGE88249S021860, and Respondent A-Sham issued Smog Certificate of Compliance No,

20 HJ020235C, The OIS Test Data shows that during Kiunar's inspection, no eVIN of was

21 transmitted, the com1mmication protocol was 1914, and the PID count was 16. Comparative OIS

22 Test Data for approximately 1000 like 2009 Honda Fit vehicles show that 99.9% of the time they

23 transmit their eVIN, they transmit a comm1mication protocol of ICAN29bt5, and they transmit a

24 PID co1mt of39/19 or 39/20.

25 b. On November 16, 2015, the same 2009 Honda Fit, VIN JHMGE88249S021860,

26 passed a BAR-OIS inspection at another station. During that inspection, the correct e VIN number

27 of JHMGE88249S021860 was transmitted, the expected communication protocol ofICAN29bt5

28 was transmitted, and the PIO count was 39/19.

9

ACCUSATION

1 32, Clean Plug Number 5: .

2 a. Smith's review of the OIS test OBD Inspection List for A-Sham Smog Center

3 indicated that on November 6, 2017, Respondent Kumar inspected a 2007 BMW 335i, VIN

4 WBA VB735X7PA8723 l, and Respondent A-Sham issued Smog Certificate of Compliance No,

5 HJ020248C, The OIS Test Data shows that during Kumar's inspection, no eVIN was transmitted,

6 the communication protocol was listed as 1914, and the PID count was 16,. Comparative OIS Test

7 Data for approximately 994 likc 2007 BMW 335i vehicles show that 98,2% of the time they

8 transmit their eVIN, they trnnsmit a communication protocol ofKWPF, and they transmit a PID

9 count of 22 or 22110 or 23110,

10 b. On or about November 17, 2015, the same 2007 BMW 335i, VIN

11 WBA VB735X7PA8723 l, passed a BAR-OIS inspection at another station, During that

12 inspection, the correct eVIN number ofWBAVB735X7PA87231 was transmitted, the expected

13 communication protocol of KWPF was transmitted, and the PID count was 22110,

33, Clean Plug Number 6: 14


16 indicated that on November 7, 2017, Respondent Kumar inspected a 2007 Dodge Charger SE,

17 VIN 2B3KA43R77H642245, and Respondent A-Sham issued Smog Certificate of Compliance

18 No. HJ054909C, Tirn OIS Test Data shows that during Kumar's inspection, no eVIN of was

19 transmitted, the communication protocol was listed as 1914, and the PID count was 16.

20 Comparative ors Test Data for approximately 1000 like 2007 Dodge Charger SE vehicles, show

21 that 99.6% of the lime they transmit their eVIN, they transmit a communication protocol of

22 ICANl lbt5, and they transmit a PID count of 41, 43, or 4318.

23 b, On or about May 12, 2017, the same 2007 Dodge Charger SE, VIN

24 2B3KA43R77H642245, failed a BAR-OIS inspection at another station, During that inspection,

25 the correct eVIN munber of2B3KA43R77H642245 was transmitted, the expected

26 communication protocol ofICAN1 lbt5 was trnnsmitted, and the PID count was 43.

27 Ill

28 Ill

10

ACCUSATION

l 34, Clean Plug Number 7:


3 indicated that on November 7, 2017, Respondent Kumar inspected a 2011 GMC Sierra K2500

4 SLT, VIN 1GT121 C87BF207491, and Respondent A-Sham issued Smog Certificate of

5 Compliance No. HJ054922C. The ors Test Data shows that during Kumar's inspection, no eVIN

6 was reported, the communication protocol was listed as 1914, and the PID count was 16,

7 Comparative ors Test Data for approximately 193 like 2011 GMC Sierra K2500 SLT vehicles,

8 show that 99 .0% of the time they transmit their e VIN, they transmit a communication protocol of

9 ICANllbtS, and they transmit aPID count of 471816.

1 O b. On.or about August 19, 2015, the san1e 2011 GMC Sierra K2500 SLT, VIN

11 1 GTl 21 C87BF207491, passed a BAR-OIS inspection at another station, During that inspection,

12 the correct eVIN number of 1GT121C87BF207491 was transmitted, the expected communication

13 protocol ofICAN1 lbt5 was transmitted, and the PID count was 471816.

14 35. Clean Plug Number 8:

15 a. Smith's review of the ors test OBD Inspection List for A-Sha111 Smog Center

16 indicated that on November 7, 2017, Respondent Kumm- inspected a 2006 Honda Civic Hybrid,

17 VIN JHMFA36256S030270, and Respondent A-Sham issued Smog Certificate of Compliance

18 No. HJ054928C .. TI1e ors Test Data shows that during Kumar's inspection, no eVIN was

19 reported, the communication protocol was listed as 1914, and the PID count was 16. Compm-ative

20 OIS Test Data for approximately 1000 like 2006 Honda Civic Hybrid vehicles, show that 98. 7%

21 of the time they transmit their eVIN, they transmit a communication protocol ofICAN29bt5, and

22 they transmit a PID count of 12112/39/19.

23 b. On or about February 18, 2016, the same 2006 Honda Civic Hybrid, VIN

24 JHMFA36256S030270, passed a BAR-OIS inspection at another station. During that inspection,

25 the correct eVIN number of JHMFA36256S030270 was transmitted, the expected communication

26 protocol ofICAN29bt5 was transmitted, and the PID count was 12112139/19.

27 Ill

28 Ill

11

ACCUSATION

1

2

36,

a.

Clean Plug Number 9:

Smith's review of the OIS test OBD Inspection List for A-Sham Smog Center

3 indicated that on November 7, 2017, Respondent Kumar inspected a 2004 Ford Explorer XLS,

4 VIN 1FMZU62K44ZB07045, and Respondent A-Sham issued Smog Certificate of Compliance

5 No. HJ054929C. The OIS Test Data shows that during Kumar's inspection, no eVIN was

6 reported, the communication protocol was listed as 1914, and the PID count was 16. Comparative

7 ors Test Data for approximately 1000 like 2004 Ford Explorer XLS vehicles, show that 97.6% of

8 the time they report their eVIN, they transmit a communication protocol ofICANl 1 btS, and they

9 transmit a PID count of 47.

10 b, On or about September 9, 2016, the same 2004 Ford Explorer XLS, VIN

11 1FMZU62K44ZB07045, passed a BAR-OIS inspection at another station, During that inspection,

12 the correct eVIN number of 1FMZU62K44ZB07045 was transmitted, the expected

13 communication protocol ofICAN1 lbt5 was transmitted, and the PID cotmt was 47.

14

15

16

17

18

19

20

21

22

23

24

25

26

27

37, Clean Plug Number 10:

a. Smith's review of the OIS test OBD Inspection List for A-Sham Smog Center

indicated that on November 7, 2017, Respondent Kumar inspected a 2008 Pontiac Grand Prix,

·vIN 2G2WP552681121908, and Respondent A-Shani issued Smog Certificate of Compliance

No, HJ054942C. The ors Test Data shows that during Kumar's inspection, no eVIN was

reported, the communication protocol was listed as 1914, and the PID count was 16, Comparative

OIS Test Data for approximately 618 like 2008 Pontiac Grand Prix vehicles, show that 97.9% of

the time they report their eVIN, they transmit a communication protocol ofICAN1 lbt5, and they

transmit a PID count of 40 or 41.

b. On or about September 29, 2017, the same 2008 Pontiac Grand Prix, VIN

2G2WP552681121908, failed a BAR-OIS inspection at ru10ther station. During that inspection,

the correct e VIN number of 2G2WP 552681121908 was transmitted, the expected communication

protocol ofICANl 1 bt5 was transmitted, and the PID count was 41.

c. On or about April 10, 2015, the same 2008 Pontiac Grand Prix, VIN

28 2G2WP552681121908, passed a BAR-OIS inspection at another station. During that inspection,

12

ACCUSATION

1 the correct eVIN number of2G2WP552681121908 was transmitted, the expected communication

2 protocol ofICANl lbtS was transmitted,"and the PID count was 41.

3

4

38.

a.



5 indicated that on November 7, 2017, Respondent Kumar inspected a 2001 Ford Escape XLT, VIN

6 1FMCU04121KF78851, and Respondent A-Sham issued Smog Certificate of Compliance No.

7 HJ054943C. The OIS Test Data shows that during Kumar's inspection, no eVIN was reported,

8 the communication protocol was listed as 1914, and the PID count was 16. Comparative OIS Test

9 Data for approximately 681 like 2001 Ford Escape XLT vehicles, show that 99.0% of the time

1 O they report their c VIN, they transmit a communication protocol of JPWM, and they transmit a

11 PID count of 20 or 23.

12 b. On or about January 17, 2017, the same 2001 Ford Escape XLT, VIN

13 1FMCU04121KF78851, passed a BAR-OIS inspection at another station. During that inspection,

14 the correct eVIN number of 1FMCU04121KF78851 was transmitted, the expected

15 communication protocol of JPWM was· transmitted, and the PID count was 20.

16 39, Clean Plug Number 12:


18 indicated that on November 7, 2017, Respondent K1unar inspected a 2008 F_ord Focus SISE, VIN

19 1FAHP32N68W263939, and Respondent A-Sham issued Smog Certificate of Compliance No.

20 HJ054944C. The OIS Test Data shows that during Kumar's inspection, no eVIN was reported,

21 the communication protocol was listed as 1914, and tho PID count was 16. Comparative OIS Test

22 Data for approximately 306 like 2008 Ford Focus SISE vehicles, show that 99.3% of the time they

23 report their e VIN, they transmit a communication protocol of ICANl 1 btS, and they transmit a

24 PID count of 39.

25 b. On or about December 12, 2015, the same 2008 Ford Focus SISE, VIN

26 1FAHP32N68W263939, passed a BAR-OIS inspection at another station. During that inspection,

27 the correct eVIN number of 1FAHP32N68W263939 was tnmsmitted, the expected

28 communication protocol ofICAN1 lbt5 was transmitted, and the PID cotmt was 39.

13

ACCUSATION

1

2

40,

a.


Smith's review of the ors test OBD Inspection List for A-Sham Smog Center

3 indicated tllat on December 14, 2017, Respondent Kumar inspected a 2007 Toyota Scion TC,

4 VIN JTKDEl 77770145793, and Respoµdent A~Sham issued Smog Certificate of Compliance No.

5 I-IL103572C. The ors Test Data shows that during Kumar's inspection, no eVIN was reported,

6 tlle communication protocol was listed as 1914, and the PID count was 16. Comparative OIS Test

7 Data for approximately 1000 like 2007 Toyota Scion TC vehicles, show that 99.8% of the time

8 they report their e VIN, they transmit a communication protocol of ICANl 1 bt5, and they transmit

9 a PID count of 39.

10 b. On or about July 13, 2015, the same 2007 Toyota Scion TC, VIN

11 JTKDEl 77770145793, passed a BAR-Ors inspection at another station. During that inspection,

12 the correct eVIN number of JTKDEl 77770145793 was transmitted, the expected communication

13 protocol ofICAN1 lbt5 was transmitted, and the PID count was 39.

14

15

41.

a.



16 indicated that on December 14, 2017, Respondent Kumar inspected a 2010 Chevrolet Cobalt !LT,

17 VIN 1G1AD5F56A7159311, and Respondent A-Sham issued Smog Certificate of Compliance

18 No. HL103578C. The OIS Test Data shows that during Kumar's inspection, no eVIN was

19 reported, the communication protocol was listed as 1914, and the PID count was 16. Comparative

20 OIS Test Data for approximately 1000 like 2010 Chevrolet Cobalt !LT vehicles, show that 99.3%

21 of the time they report their eVIN, they transmit a communication protocol ofICAN1 lbt5, and

. 22 they transmit a PlD cmmt of 38/7 or 39/7.

23 b. On or about May 31, 2016, the same 2010 Chevrolet Cobalt !LT, VIN

24 1 G!AD5F56A 7159311, passed a BAR-OIS inspection at another station. During that inspection,

25 the correct eVIN number of 1 G1AD5F56A 7159311 was transmitted, the expected communication

26 protocol ofICANl 1 bt5 was trm1smitted, and the PID count was 3 8/7.

27 ///

28 ///

14

ACCUSATION

1

2

42.

a.



3 indicated that on December 15, 2017, Respondent Kumar inspected a 2004 Chevrolet Silverado

4 C1500, VIN 2GCEC19T641186508, and Respondent A-Sham issued Smog Certificate of

5 Compliance No. HL153663C. The OIS Test Data shows that during Kumar's inspection, no

6 eVIN was reported, the communication protocol was listed as 1914, and the PID count was 16.

7 Comparative OIS Test Data for approximately 1000 like 2004 Chevrolet Silverado Cl 500

8 vehicles, show that 99.5% of the time they report their eVIN, they transmit a communication

9 protocol of JVPW, and they transmit a PID count of22 or 23.

10 b. On or about November 28, 2015, the same 2004 Chevrolet Silverado Cl 500, VIN

11 2GCEC19T641186508, passed a BAR-OIS inspection at another station. During that inspection,

12 the correct e VIN number of 2GCEC 19T641186508 was transmitted, the expected communication

13 protocol of JVPW was transmitted, and the PIO count was 22.

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

t:Gleli'ti'.:Blg/}il t.~:~t}~fB.1mt~!t~~?{i

Cert. #HJ020232C

Fraudulent Inspection 11/6/2017

Expected OBD II Value

Prior Inspection 3/9/2016

Cert. #HJ020233C




Ce1t. III-IJ020234C



TABLEl eVIN

None

1FTVX12514NA26857

1FTVX12514NA26857

eVlN

None

WAUPN44E17N010236

WAUPN44E17N010236

eVIN

None

1 GCHC23U56Fl 79808

15

Protocol PID Count

1914 16

ICANl lbt5 27

ICAN11bt5 27

Protocol PID Count

1914 16

ICAN1lbt5 44/14/42

ICAN!lbt5 44/14/42

Protocol PID Count

1914 16

JVPW 22

ACCUSATION

I

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


.,l,>1\'i'gI, Cert. #HJ020235C i~~Vi¼i4.l




'1'.tliitl!itl!Wtgi:, Cert. #HJ020248C i,J.'1(;'l~~r~~•/\~/ ·. •,•<, ,.(i, Wt1Y~· ;~S.::~11:g1~;ft/ Fraudulent Inspection I 1/6/2017


Priot· Inspection 11/17/2015 11111111 Cert. #HJ054909C



Prior hlspection 5/12/2017 II- Cert. #HJ054922C



Prior Inspection 8/19/2015 .

a,iitt Cert. #HJ054928C " . . ... ,, ... t,,,.,


Expected OBD II Vahle

· Prior Inspection 2/18/2016 II- Cert. #HJ054929C



1 GCHC23U56Fl 79808 JVPW 22

eVIN Protocol PID Count

None 1914 16

JHMGE88249S021860 ICAN29bt5 39/19 or 39/20

JHMGE88249S021860 ICAN29bt5 39/19

eVIN Protocol PID Coimt

None 1914 16

WBA VB735X7PA87231 KWPF 22 or 22/10 or 23/10

WBA VB735X7PA87231 KWPF 22/10


None 1914 16

2B3KA43R77H642245 ICANl lbt5 41 or 43 or 43/8

2B3KA43R77H642245 !CAN! 1bt5 43

eVin Protocol .PIDCount

None 1914 16

1 GT121 C87BF207491 ICAN11bt5 47/8/6

1GT121C87BF207491 ICANl lbt5 47/8/6


None !914 16

JI-IMFA36256S030270 ICAN29bt5 12/12/39/19

JHMFA.36256S030270 ICAN29bt5 12/12/39/19

eVIN , Protocol PID Count

None 1914 16

1FMZU62K44ZB07045 · ICAN11bt5 47

16

ACCUSATION

Prior Inspection 1 lll-,-,=--c-=i---'9..;.;/9;..;../2;;;.0c.cl.;;.6_-+_------~-----+--------1<

i9rl#,'.~n:t\Wlil'J\ Cert. #HJ054942C eVIN Protocol PID Count 2 . ·:!tf~?r1x1!tO:;:t11!r;ii

1FMZU62K44ZB07045 1CAN1 lbt5 47

Fraudulent 3 Inspection

None 1914 16

11/7/2017 4

Expected OBD II 2G2WP552681121908 ICAN1 lbt5 40 or 41 Value

S Prior Inspection 2G2WP552681121908 ICAN1 lbt5 41 9/29/2017 6 lll-------+-P~ri"'"or""r'-'-ns.::.p:'..-'ec'--'tl-,---,o-n-+-2G=2=w=p=55=2~6=81~1~2~19~0~8--+-rc~A~N=1~1~bt~5--+---4~1----Ja

7 lli------l--,,---'4:,,:ll,:::0l_:::2.:;,;01:,.:;5_,,,.+ ___ ..,,.,. ___ ~ ___ _,_--+------ia Clean Plug Cert. #HJ054943C eVlN Protocol PID Count

8 llf-.---"'-l"'---l ---l--=----'-,-~,-----+---=-------ll-----cc=.---+--~----1-1 Fraudulent None 1914 16

9 Inspection 11/7/2017

10 Expected OBD II 1FMCU04121KF78851 JPWM 20 or 23 Value

11 Prior Inspection 1FMCU04121KF78851 JPWM 20 1/17/2017

12 Clean Plug Cert. #I-IJ054944C 1-----eV"'IN=o----+-~P~r-ot.,...o-co·1-+-~p=r=n~c~o-u-nt--ll 12

13 Fraudulent None 1914 16 Inspection

14 lll--------+--1'--"1'-'/7c.;:/2"'-0-'-'J7'=--=-+---------1------1-----~ Expected OBD II 1FAHP32N68W263939 lCANllbt5 39

15 Value lll-------+-P~ri-or--clc-"ns""p""ec~t~io-n-+~1F~,A~H=P=3=2=N=68=w~26=3=9=39cc-,f-cclC=A~N~ll~b~t5c-t--~3~9------I,

16 ii1------+--"12=-/~12:::..:/2::..,0cc.1=---5--+---------+-----+-------l Clean Plug Cert. eVIN Protocol PlD Cotmt

17 lle-----=1"'--3---l-----"#~Ii~L~lO"i-3";-57._.2c-"C'-----+-----c-------+----=c.-.--+--~~--l-Fraudu1ent None 1914 16

18 Inspection 12/14/2017

19 Expected OBD II Value

20 Prior Inspection 7/13/2015

JTKDE177770145793 ICAN!lbt5 39

JTKDEl 77770145793 ICAN1 lbt5 39

21 Clean Plug Cert. eVlN Protocol PID Count 14 #HL103578C

22 Fraudulent None !914 16 23

Inspection lle----------+-~l,,._2/_,_14-"./2~0""1~7 ---cc-+-~~=~~~cc--+-=-c-~-,----,--c-+---=-~~~-----Jj

24 Expected OBD 11 1 GIAD5F56A 7159311 lCANJlbt5 - 38/7 or 39/7 Value lll-------+-~-=-"=~--+-~~~~--+=~~c--cf-cc~~~c--1------ll

25 Prior Inspection 1O1AD5F56A7159311 ICAN11bt5 38/7 I le---~~,cc---l------"5'--"/3~1/._.,2"'-0~16'------+---~=o-----+ ·~,-------,--.-----+-----==-c~~-H

26 Clean Plug Cert. eVIN Protocol PIO Count l;i #I-IL153663C

27 Fraudulent Inspection

None 1914 16

28 IIL ___ _[____,1'-"'2/._._1"-'-5/-""20""1-'---7 _ _J__ _______ _J__ ___ --1_ ____ ----I_

17

ACCUSATION

Expected OBD II 2GCEC19T641186508 JVPW 1 Value

llf-----+-~~.,c,=c=-_~-+--~==~~~~~--j-~~~--+---~-----11

22 or 23

Prior Inspection 2GCEC19T641186508 JVPW 22 2 IIL ___ _j___.c._11'-"/2::.,8c..:/2::.c0cc_l 5::..._--1.. _______ __JL_ ___ --1.. ____ ------1J

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

Respondents A-Sham:

FIRST CAUSE FOR DISCIPLINE (Maldug or Authorizing Untrue or Misleading Statements)

(Bus. & Prof. Code,§ 9884.7, subd. (a)(l))

43. Respondent A-Sham has subjected its Automotive Repair Dealer Registration to

disciplinary action in that Respondent A-Sham made untrue statements when it issued fifteen

fraudulent certificates of compliance and failed to comply with the Automotive Repair Act as set

forth in paragraphs 23 through 42, above.

SECOND CAUSE FOR DISCIPLINE (Fraud)

(Bus. & Prof. Code, § 9884.7, subd. (a)(4))

44. Respondent A-Sham has subjected its Automotive Repair Dealer Registration to

disciplinary action in that Respondent A-Sham engaged in fraud when it issued fifteen fraudulent

certificates of compliance as set forth in paragraphs 23 through 42, above. (Bus. & Prof. Code,

section 9884.7, subd, (a)(4).)

THIRD CAUSE FOR DISCIPLINE (Failure to Comply with the Automotive Repair Act)

(Bus. & Prof Code,§ 9884,7, subd. (a)(6); Health & Saf. Code,§ 44072.2, subds. (a) & (c))

45. Respondent A-Sham has subjected its Automotive Repair Dealer Registration and

Smog Station License to disciplinaiy action in that it failed to comply with the Automotive Repair

Act and sections of the Code and applicable regulations as set forth in paragraphs 23 through 42,

above. (Bus. & Prof Code,§ 9884.7, subd. (a)(6); Health & Saf. Code,§ 44072.2, subds. (a) &

( c).) The violations are as follows:

a. Health & Safety Code, § 44012, subd, (f): Respondent A-Sham failed to follow test

25 procedures in accordance with the Onboard Inspection System (OIS) specifications when it failed

26 to properly conduct the functional portion of the smog inspection by failing to connect fifteen

27 vehicles to the BAR-OIS when they were being certified.

28

18

ACCUSATION

1 b, Health & Safety Code,§ 44015, subd, (b): Respondent A-Sham certified prohibited

2 vehicles when it issued certificates to fifteen vehicles that were not connected to the BAR-OIS

3 when they were being cettified.

4 C, Cal, Code Regs,, tit. 16, § 3340.35, subd, (c): Respondent A-Sham issued

5 certificates of compliance to vehicles that were not properly inspected in accordance with

6 California Code of Regulations, title 16, section 3340.42.

7 d, Cal, Code Regs,, tit, 16, § 3340.42, subd, (b)(2): Respondent A-Sham failed to

8 conduct the functional inspection in accordance with the smog check manual referenced in

9 California Code of Regulations, title 16, section 3340.45,

10 e. Cal. Code Regs,, tit. 16, § 3373: Respondent A-Sham issued false or misleading

11 records when it issued fifteen fraudlJlent certificates of compliance,

12 FOURTH CAUSE FOR DISCIPLINE (Dishonesty, Fraud, or Deceit)

13 (Health & Saf, Code,§ 44072.2, subd, (d))

14 46. Respondent A-Sham has subjected its Smog Station License to discipline in that it

15 committed acts involving dishonesty, fraud, or deceit, whereby another was injured, by issuing

16 fifteen fraudulent certificates of complia11ce as set forth in paragraphs 23 through 42, above.

17 (Health & Saf. Code, § 44072.2, subd. (cl).)

18 Respondent Kumar:

19 FIFTH CAUSE FOR DISCIPLINE (Violation of Motor Vehicle Inspection Program)

20 (Health & Sat'. Code,§ 44072,2, subds, (a) & (c))

21 47. Respondent Kumar has subjected his smog inspector's license to discipline in that he

22 violated sections of the Code and applicable regulations when he failed to connect fifteen vehicles

23 to the BAR-OIS when they were being certified, as set forth in paragraphs 23 through 42, above.

24 (Health & Saf. Code,§ 44072.2, subcls. (a) & (c).) The circumstances are as follows:

25 a. Health & Saf. Code, § 44012, snbc\, (f): Respondent Kumar failed to follow test

26 procedures in accordance with the OIS specifications and failed to perform a functional inspection

27 of required equipment.

28

19

ACCUSATION

1 b. Health & Saf. Code, § 44032: Respondent Kumar failed to ensure that the emission

2 control tests were performed in accordance with the procedures prescribed by the deparhnent.

3 c. Cal. Code Regs., tit. 16, § 3340.24, subd. (c): Respondent Kumar falsely or

4 fraudulently caused certificates of compliance to be issued to vehicles without performing bona

5 fide inspections of the emission control devices ru1d systems on the vehicles as required by Health

6 and Safety Code section 44012.

7 d. Cal. Cocle Regs., tit. 16, § 3340.30, subd. (a): Respondent Kumar failed to inspect

8 and test fifteen vehicles in accordance with Health & Safety Code sections 44012 and 44035, ru1d

9 California Code of Regulations, title 16, section 3340.42.

10 e. Cal. Code Regs., tit. 16, § 3340.35, subd. (c): Respondent Kumar caused

11 certificates of compliooce to be issued to· vehicles that were not properly inspected in accordance

12 with California Code of Regulations, title 16, section 3340.42.

13 f. Cal. Code Regs., tit. 16, § 3340.41, subd. (c): Respondent Kumar entered into the

14 BAR-OIS vehicle identification information or emission inspection information for a vehicle

15 otl1er thm the vehicle being inspected, and also entered false information for the vehicle being

16 inspected.

g. Cal. Code Regs., tit. 16, § 3340.42, subd. (b)(2): Respondent Kumar failed to 17

18

19

20

21

22

conduct the functional inspection.in accordru1ce with the smog check manual referenced in

California Code ofRegLJ!ations, title 16, section 3340.45.

SIXTH CAUSE FOR DISCIPLINE (Violation of Motor Vehicle Inspection Program) ·

(Health & Saf. Code,§ 44072.2_, subd. (d))

48. Respondent Kumar has subjected his smog inspector's license to discipline in that he

23 committed acts involving dishonesty, fraud, or deceit, whereby another was injured, when he

24 caused fifteen fraudulent certificates of compliooce to be issued as set forth in paragraphs 23

25 through 42, above. (Health & Saf. Code, § 44072.2, subd. ( d).)

26 Ill

27 Ill

28 Ill

20

ACCUSATION

;

1 OTHER MA TIERS

2 49. Pursuant to Code s6ction 9884. 7, subdivision ( c ), the Director may suspend, revoke,

3 or place on probation the registration for all places of business operated in this state by

4 Respondent A-Sham-Sham Kumar (Owner)-upon a finding that Respondent A-Sham has, or

5 is, engaged in a course ofrepeated and willful violations of the laws and regulations pertaining to

6 an automotive repair dealer.

7 50. Pursuant to Health & Safety Code section 44072.8, if Respondent A-Sham-Sham

8 Kumar (Owner)-Smog Station License is revoked or suspended, any additional license issued

9 under Chapter 5 of Part 5 of Division 26 of the Health and Safety Code in the name of said

1 O licensee may be likewise revoked or suspended by the director.

11 51. Pursuant to Health & Safety Code section 44072.8, if Respondent Kumar's Smog

12 Check Inspector License is revoked or suspended, any additional licenses issued under Chapter 5

13 of Part 5 of Division 26 of the Health and Safety Code in the name of said licensee may be

14 likewise revoked or suspended by the director.

15 PRAYER

16 WHEREFORE, Complainant requests that a hearing be held on the matters alleged in this

17 Accusation, and that following tl1e hearing, the Director of Consumer Affairs issue a decision:

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

19 277233, issued to A-Sham Smog Center; Sham Kumar-Owner;

20

21

22

23

24

25

26

27

28

2. Revoking or suspending any otlier Automotive Repair Dealer Registrations issued to

Sham Kumar;

3. Revoking or suspending Smog Check Station License Number TC 277233, issued to

A-Sham Smog Center; Sham Kumar-Owner;

4. Revoking or suspending Smog Check Inspector License Number BO 635373, issued

to Sham Kumar;

5. Revoking or suspending any additional licenses issued under Chapter 5 of Part 5 of

Division 26 of the Health and Safety Code in the name of Sham Kumar;

21

ACCUSATION

1 6. Ordering Sham Kumar to pay the Bureau of Automotive Repair the reasonable costs

2 of the investigation and enforcement of this case, pursuant to Business and Professions Code

3 section 125.3; and,

4

5

6

7

8

9

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

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DATED:

OK2018900185 90921939.doc

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

22

•

ACCUSATION

791 S~Slbar.ca.gov/pdf/accusations/tc-277233_2018_03_26_acc.pdf · A-SHAM SMOG CENTER; SHAM KUMAR...

Documents

Transcript of 791 S~Slbar.ca.gov/pdf/accusations/tc-277233_2018_03_26_acc.pdf · A-SHAM SMOG CENTER; SHAM KUMAR...