STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SANDOR KOLTAY t/a CITY TV, )
)
Petitioner, )
)
vs. ) CASE NO. 77-1531
) STATE OF FLORIDA, DIVISION OF ) GENERAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Admnistrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 25, 1977, in St. Petersburg, Florida. The Division of General Regulation (Respondent herein), seeks to assess a civil penalty, suspend or revoke Sandor Koltay's (Petitioner) electronic service dealer registration(number 2615) pursuant to its amended notice to show cause and complaint nunther 77-20587 filed May 27, 1977.
APPEARANCES
For Petitioner: Charles E. H. Beck, Esquire
3806 Central Avenue
St. Petersburg, Florida 33711
For Respondent: Richard E. Gentry, Esquire
Staff Attorney
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304
Charles H. Scully, Esquire
445 31st Street, North, Suite 204 St. Petersburg, Florida 33713
The amended notice to show cause filed against Petitioner alleges that:
Petitioner refused to allow inspection of records of service transactions as requested by an electronic inspector-investigator, Mr. Stanley T. Crocker, on or about May 13, 1977, in violation of Florida Statute 468.158.
Petitioner knowingly made an untrue and misleading statement to john K. Kyle, om or about May 6, 1977, to the effect that the filaments of the picture tube in RCA color TV model GR 661-S, serial number 22137- 2056, Chassis 39XBJ, were open and that it needed a
"new" picture tube, in violatIon of Florida Statute 468.159(1)(a).
Petitioner knowingly replaced the RCA type 25VABP22 picture tube, code data 72-48, in RCA color TV model GR 6615, serial number 22137-2056, Chassis 39XBJ on or about May 5, 1077 with a Grade C (used) Montgomery Ward Airline Type 25 VABP22, marked EIA 274, when the original tube was not defective and replacement was not necessary to effect the proper repair, in violation of Florida Statute 468.159(1)(d).
Petitioner knowingly charged for and applied a cleaning agent to the VHF tuner of the above specified TV en or about May 5, 1977, when in fact the tuner did net need cleaning to effect the proper repair, in violation of Florida Statute 463.159(1)(d)
Petitioner presented to John K. Kyle, on or about May 6,1977, invoice no. 4180, which is illegible in violation of Rules and Regulations 7B-2.10.
Petitioner knowingly inserted false and misleading information on invoice no. 4180 presented to John K. Kyle, on or about May 6, 1977, to the effect that the picture tube installed was a "8ilvertone" when in fact it was "Montgomery Airline" brand; that dealer has "contract" for two years guarantee en this picture tube towards grade C - one year labor (between customer and us only)" the effect of which was intended to mislead the customer to believe that this was a quality tube; that the focus tube installed was a "IV2 when in fact it was a "IV2", in violation of Florida Statutes 468.158, 468.159(1)(a)(b) and (f) and Rules and Regulations 7B- 2.15.
Petitioner failed to notify the Division of a change of home address, on or about June 1, 1976, in violation of Florida Statute 468.155.
Respondent's counsel, during the course of the hearing, denied the allegations contained in the notice to show cause.
Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, 1 make the following:
FINDINGS OF FACT
Sandor Koltay, Petitioner herein, is an electronic repair dealer registrant who holds registration no. 2615. William C. Kimbrel, Electronic Registration Bureau Chief since approximately April 12, 1971, is in charge of overseeing and supervising the Electronic Repair Dealer Registration Division. During early 1972, Kimbrel ordered two colored TV set which were shipped to the Miami Division Office, for use in checking repair dealer registrants who were the subject of complaints from collsumers. Joseph Hytha, an electronic inspector-investigator, working under Kimbrel for the past three years was
employed by RCA for approximately 20 years in various positions of responsibility. He also was employed by Teledyne Corporation and supervised as many as 30 technicians. During his employ:nent career as an electronic repairman, he has repaired in excess of approximately 40,000 TV sets. He has been qualified as an expert in the courts of Duval and Volusia counties.
Evidence reveals that the Bureau had received some complaints about the quality of workmanship engaged in by the Petitioner and working through tile assistance of the Consumer Affairs Division of Plnellas County, the Respondent used one of the referenced TV sets which was repaiied and marked and given to a citizen to be repaired by the Petitioner. The TV set was marked on the cabinet, chassis, the picture tube and the high voltage cage. Prior to being given to the citizen for repair, the set was initially checked by DivisIon employees Uytha, Stanley
T. Crocker, an electronic inspector-investigator and Richard Hughes, a Division employee who is also a certified electronic technician. Crocker removed the tubes from the set and placed them in a cathode-ray tester and Hughes recorded the data with employee Hytha noting and checking all functions (State's Exhibit #3). During the examination by the Division, the filaments were closed and there was continuity in the picture tube. All tubes were marked by a nick on the number one pin for each tube removed from the set. The focus tube was removed from the set and scientifically knocked out to get a "no picture" condition. (State's Exhibit #4) initially, the set was given to Doris Dano, an employee of the Pinellas County Consumer Affairs Division, who called Petitioner to get the TV serviced. The "no picture" condition was shown to a Mr. Richards, who is also a Consumer Affairs employee, prior to the time that the Petitioner was called.
John K. Kyle, a Pinellas County resident was given the set since he lived in the service area in which the Petitioner operated. When the TV set was carried to Kyle's apartment, he called the Petitioner who came and examined the set. Kyle explained to Petitioner that "he had no picutre and therefore he probably needed a new picture tube." Koltay examined the set and stated that it required a new tube after an examiniation of approximately 15 to 20 minutes. Kyle was explained his various options and after Petitioner used his phone, he was given several quotes based on estimates that Petitioner had received from two suppliers for various quality and guarantees on picture tubes. The evidence reveals that while examining the set, .the Petitioner commented that the set was dirty and called Kyle ever to the back of the set with the curtains drawn in the apartment to show him that the picture tube was not lighting up and therefore the picture tube was defective. The Petitioner was instructed by Kyle to use the better of the two picture tubes discussed and Petitioner gave him a quote of
$210.00. The set was repaired for this price and it was redelivered to Kyle as agreed.
Petitioner carried the set to his shop which is located at 3580- 66th Avenue North, in Pinellas Park and replaced the tube with a Grade C (used) Montgomery Ward Airline tube. Prior to installing the new tube, Petitioner testified that he tried to "spark" the tube. After conducting the "spark" test, he was certain that the tube was defective as he had suspected at Kyle's apartment. However, after he installed the new tube, the set still would net play and he checked the focus tube which was replaced. Thereafter the Petitioner made some adjustments to the set and when it was in good operating condition, he phoned Kyle and made an appointment to return the set. Petitioner admitted that he used a "1AV" tube as opposed to a "2AV2" tube inasmuch as the tubes are interchangeable and in fact some manufacturers suggest such a replacement with the original "2AV2" tube malfunctions. Later that day, Deputy Poorbaugh, who assisted in the investigation of the Petitioner beginning sometime around May 19,.1977, executed an affidavit, obtained a warrant and
searched the Petitioner's shop after the set was returned to Kyle. Depuy PoorBaugh confiscated the tube which the Petitioner had removed from Kyle's set. The Petitioner had the tube marked "re-do." When questioned by Deputy Poorbaugh, Petitioner told him that he did not use a picture tube tester since his tester was inoperable, however, he had used other comparable tests and that the filament did not light up. Respecting the allegation that the Respondent charged for and applied a cleaning agent to Kyle's VHF tuner, the evidence revelas that Koltay, as a matter of practice cleans all TV tuners since the St. Petersburg area is very humid and cleaning the tuner seems to be a means of preventative maintenance which alleviates future problems. For this service, Petitioner did not charge Kyle a fee. When Deputy Poorbaugh seized the picture tube removed from Kyle's set, it was turned over to the State Attorney's office after it has been transported to the Division Office for a check.
Richard Hughes, a certified electronic technician (CET) with approximately 31 years experience in the television repair field, testified that when the tube that had been removed from Kyle's set was checked, it had consistent readings of 11.9 on all three guns. (State's Exhibit #4 composite). Hughes testified that readings on new sets varied from 11.5 to 12. He estimated that based on the 20,000 to 25,000 sets of this type which he has repaired, he never witnessed an intermittent type fi1ament in a set of this type. He further testified on cross-examination that newer TV sets are not easily shaken by jostling because the elements are spot welded ridgidly in position. Sometime during the year 1976, Respondent's agent visited the Petitioner's home and demanded to inspect his invoice and other operating receipts. Petitioner refused, explaining that his wife, who maintained his books and invoices, was not at home. After an exchange of harsh words, Petitioner asked the agents to leave because he was "about to lose his temper". The following day, the Petitioner and his wife made phone calls to the Respondent's Division office in Tampa and a call was also made to the headquarters office in Tallahassee. Petitioner was advised to carry his invoices and all other operating receipts to the Tampa Office for inspection, which was done.
Sandor T. Koltay, (Petitioner) has been in business at the above address for more than seven years and has approximately 15 years experience in television repair service. He has taken basic electronic courses, however, he is net a certified electronics technician. Petitioner's business phone rings at his home and he admits to the requirement that he make available to the Division all records and invoices upon request. He testified that this was done in all cases. Petitioner expressed an opinion that the State was "out to get him" based on the prior visit of Division employees Schreder and Crocker. He opined that they attempted to "shake him doqn" for approximately $3,000.00 based on six alleged violations.
Sandra Koltay, Petitioner's wife, testified that she recalled the incident involving the Respondent's agents Crocker and Hytha as having occurred during the summer of 1975. She testified that the agents threatened her husband and told him that "he was in a great deal of trouble; that complaints had been received from numerous customers and that he owed six violations at $500.00 each for a total aalount of $3,000.00." She persuaded her husband to call the Bureau Chief in Tallahassee and express his desire to cooperate with the Division in any way possible. Kimbrel suggested that Petitioner carry all files for the previous six months to Tampa, for inspection. As stated, the records were carried to Tampa for inspection.
Joseph W. Hytha recalled the visit to Petitioner's home during the summer of 1975 with agent Crocker. He testified that this visit was prompted by
the Division's receipt of two irregular complaints and the Department's desire to discuss other matters. He testified that the invoices were illegible and inasmuch as they were at Petitioner's home, (office) they decided to carry out a regular office inspection. Mr. Hytha denied any threats having been voiced by himself or agent Crocker.
Warren Quibelle, a CET with approximately 30 years in the electronic repair service business, testified that he had, during his career, worked on many RCA picture tubes such as the one in question here and that he has witnessed numerous "open" filament or intermittent problems problems existing on such tubes. BH testified that he has personally rejected TV tubes based on intermittent filaments. He testified that this is especially so in this instance inasmuch as the set was approximately five years old when it was serviced by the Petitioiier and that the average tube life span is five to seven years. Quibelle expressed doubts as to the accuracy of the 11.9 reading on a five year old picture tube. He further said that there was no way to determine whether or not an intermittent problem existed unless the problem occurs when the technician is present. Numerous witnesses testified that they had had their TV sets repaired by the Petitioner and expressed their opinion that he was reliable, honest and trustworthy. They all testified that they never voiced any complaint to the State or the Division of Consumer Affairs. (Witnesses Neal and Irving)
CONCLUSIONS
Although the record reveals that there was at least a one day's delay in the Division's ability to inspect Petitioner's records - as requested, the person who was denied the inspection, Stanley Crocker, was not present and therefore it is difficult to determine on this record whether or not the request was actually made. Respecting the allegation that the Petitioner made untrue and misleading statements to John K. Kyle to the effect that he needed a new picture tube, the evidence reveals that the Petitioner, in fact, replaced the tube based on his examination which revealed that the filament in the picture tube was open. This is a problem of an intermittent type and witnesses for the Petitioner and the Respondent both testified that an intermittent problem is one which "is not apparent...and it cannot be traced. The only time such a problem can be traced is when the problem actually exists". This is the intermittent condition warranty given to Messr. Kyle and which apparently has the Respondent's imprimatur. I therefore conclude that these allegations have not been established by competent and substantial evidence nor has the allegation been substantiated that the Petitioner knowingly replaced the tube in Kyle's set when he knowingly was aware that the tube was not defective and replacement was not necessary as alleged as being violative of Chapter 468.159(1)(a) and (b), Florida Statutes. Respecting the allegation that the Petitioner charged for and applied a cleaning agent to Kyle's VHP tuner, the evidence reveals that no charge was made for the tuner cleaning repair. (State's Exhibit #5)
Respecting the allegation that the Petitioner presented to John K. Kyle an illegible invoice ill violation of Rules and Regulations 7E-2.10, the evidence reveals that although Petitioner's handwriting leaves something to be desired, the undersigned can read such and therefore I cannot conclude that it is illegible in violation of Rule and Regulation 7B-2.10 of the Department's rules.
The undersigned was unable to find any requirement in Florida Statute
468.155 to the effect that the Petitioner was required to notify the Division of a change of home address on or about June 1, 1976, as alleged in paragraph seven
of the amended notice to show cause filed herein. It was further noted that Petitioner's registration has his business address denoted thereon and was available there at all times.
Finally, I conclude that Petitioner, in fact, installed a Montgomery Ward- Airline brand picture tube in Kyle's TV set as alleged in paragraph six of the amended notice to show cause filed herein. The remaining allegations in paragraph six are rejected.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57 (1), Florida Statutes.
The parties were noticed pursuant to the notice provisions of Chapters
120 and 468, Florida Statutes.
The authority of the Respondent is derived from Chapter 468, Florida Statutes.
Petitioner, by installing a Montgomery Ward-Airline brand tube instead of a Silvertone picture tube as quoted to Kyle and provided in the estimate given to him, ran afoul of the invoice recording requirements provided in Chapter 468.158, Florida Statutes. However, based on testimony that the two tubes are interchangeable and no testimony was shown that one tube was of a lesser quality than the other, I shall recommend that only a civil penalty of
$250.00 be assessed pursuant to Chapter 468.159(2), Florida Statutes.
Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Petitioner be assessed a civil penalty of $250.00 based on the violation found above.
In all other respects I hereby recommend that the allegations contained in the amended notice to show cause filed herein be dismissed.
RECOMMENDED this 1st day of December, 1977, Tallahassee, Florida.
JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
Richard E. Gentry, Esquire Staff Attorney
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304
Charles H. Scully, Esquire 445-31st Street, North Suite 204
St. Petersburg, Florida 33713
Charles E. H. Beck, Esquire 3806 Central Avenue
St. Petersburg, Florida 33711
================================================================= AGENCY FINAL ORDER
=================================================================
DEPARTMENT OF BUSINESS REGULATION DIVISION OF GENERAL REGULATION
STATE OF FLORIDA SANDOR KOLTAY t/a/ CITY TV,
Petitioner,
vs. CASE NO. 77-1531
STATE OF FLORIDA, DIVISION OF GENERAL REGULATION,
Respondent.
/
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 25, 1977, in St. Petersburg, Florida. The Division of General Regulation (Respondent herein), seeks to assess a civil penalty, suspend or revoke Sandor Koltay's (Petitioner) electronic service dealer registration(number 2615) pursuant to its amended notice to show cause and complaint number 77-20587 filed May 27, 1977.
The Amended Notice to Show Cause filed against the Petitioner alleges that:
Petitioner refused to allow inspection of records of service transactions as requested by an electronic inspector-investigator, Mr. Stanley T. Crocker, on or about May 13, 1977, in violation of Florida Statute 468.158.
Petitioner knowingly made an untrue and misleading statement to John K. Kyle, on or about May 6, 1977, to the effect that the filaments of the picture tube in RCA color TV model GR 661-S, serial number 22137- 2056, Chassis 39XBJ, were open and that it needed a "new" picture tube, in violation of Florida Statute 468.159(1)(a).
Petitioner knowingly replaced the RCA type 25VABP22 picture tube, code data 72-48, in RCA color TV model GR 6615, serial number 22137-2056, Chassis 39XBJ on or about May 5, 1077 with a Grade C (used) Montgomery Ward Airline Type 25 VABP22, marked EIA 274, when the original tube was not defective and replacement was not necessary to effect the proper repair, in violation of Florida Statute 468.159(1)(d).
Petitioner knowingly charged for and applied a cleaning agent to the VHF tuner of the above specified TV on or about May 5, 1977, when in fact the tuner did net need cleaning to effect the proper repair, in violation of Florida Statute 463.159(1)(d)
Petitioner presented to John K. Kyle, on or about May 6,1977, invoice no. 4180, which is illegible in violation of Rules and Regulations 7B-2.10.
Petitioner knowingly inserted false and misleading information on invoice no. 4180 presented to John K. Kyle, on or about May 6, 1977, to the effect that the picture tube installed was a "Silvertone" when in fact it was "Montgomery Airline" brand; that dealer has "contract" for two years guarantee on this picture tube towards grade C - one year labor (between customer and us only)" the effect of which was intended to mislead the customer to believe that this was a quality tube; that the focus tube installed was a "IV2 when in fact it was a "IV2", in violation of Florida Statutes 468.158, 468.159(1)(a)(b) and (f) and Rules and Regulations 7B- 2.15.
Petitioner failed to notify the Division of a change of home address, on or about June 1, 1976, in violation of Florida Statute 468.155.
APPEARANCES
For Petitioner: Charles H. Scully, Esquire
445 - 31st Street North, Suite 204 St. Petersburg, Florida 33713
- and -
Charles E. H. Beck, Esquire 3806 Central Avenue
St. Petersburg, Florida 33711
For Respondent: Richard E. Gentry, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304
Having reviewed the entire record before me, including all pleadings and a copy of the entire transcript, I, Elizabeth W. Willis, Director of the Division of General Regulation, hereby reject with particularity, certain parts of the Hearing Officer's Recommended Order as not being based upon competent substantial evidence.
The following is a statement of the facts, with particularity, upon which this rejection is based, and upon which the Agency's Final Order is entered pursuant to Section 120.68(10), Florida Statutes.
The Division notes that the Hearing Officer did not have available to him a copy of the transcript of the hearing at the time he produced his Recommended Order.
FINDINGS OF FACT
Joseph Hytha is an employee of the Division of General Regulation, Department of Business Regulation, State of Florida. Hytha was formerly employed by RCA for approximately 20 years in various positions of responsibility. He was also employed by Teledyne Corporation and supervised as many as 30 electronic technicians. During his employment career as an electronic repairman, he has repaired in excess of approximately 40,000 RCA TV sets. He has been qualified as an expert in the Courts of Duval and Volusia Counties and was accepted as an expert in TV repair in this proceeding.
Richard Hughes is an employee of the Division of General Regulation, Department of Business Regulation. He has been in the TV repair business for approximately 31 years, 18 or- that was spent on RCA TV sets exclusively. He has worked on approximately 50,000 RCA TV sets and is a Certified Electronic Technician (CET) . Richard Hughes was accepted as an expert in TV repair in this proceeding.
Sandor Koltay, d/b/a City T.V., has approximately 15 years of experience with electronics in various capacities. Koltay has never completed high school and has taken only basic electronics courses in high school, covering sort topics as currents and resistance. He is not and does not consider himself an expert in the field of electronics. TR 395, 396.
Evidence reveals that the Bureau had received some complaints about the quality of workmanship engaged in by tie Petitioner and working through the assistance of the Consumer Affairs Division of Pinellas County, the Respondent used one of the (Division's) TV sets which was prepared and marked and given to a citizen to be repaired by the Petitioner. The TV set was marked on the cabinet, chassis, the picture tube and the high voltage cage.
The testimony shows that on April 25, 1977, Joseph W. Hytha, Richard Hughes and Stanley T. Crocker, employees of the Division of General Regulation, scientifically tested the TV set in question and recorded their findings. Regarding the picture tube itself, a cathode ray tube tester was used to test the filaments of the picture tube and it revealed the rod gun had an output of 11.9, the green gun an output of 11.9 and the blue gun an output of 11.9. State's Exhibit 3.
On May 10, 1977, Joseph Hytha and Stanley Crocker re-checked the filaments with a cathode ray tube tester and found the readings to be identical to those taken on April 25, and Hytha testified that the picture tube was in "excellent" condition. State's Exhibit 3.
Richard Hughes, a CLOT with over 18 years experience 011 RCA sets alone, having worked on approximately 50,000 sets, testified that the subject tube was "an extremely good tube." TR 171.
John Kyle to whom the Division delivered the set for purposes of summoning Mr. Koltay, testified that when the Division of General Regulation placed the TV set in his home, it was demonstrated to him to be in perfect working order. TR 136.
Upon being summoned by Mr. Kyle, the record reflects that Sandor Koltay examined the TV set in Kyle's apartment or approximately 15 minutes and then stated that the set required a new picture tube, as the one in the set was defective. Koltay further testified that he determined lie picture tube was defective by taking a small screwdriver and attempting to obtain a spark by touching certain electrical connections on the back of the tube. TR 334.
Koltay testified that he did not use an ohmmeter on the picture tube at that time to determine whether or not there was continuity in the circuit. TR 336. In fact, Koltay never tested the picture tube with an ohmmeter, because his tester was not working properly. TR 153.
On May 9, 1977, Joseph Hytha and Stanley Crocker, accompanied Richard Poorbaugh of the Pinellas County Sheriff's Department, pursuant to a search warrant, seized the RCA picture tube which had been taken out of the State's set by Sander Koltay. At the time of seizure, Joseph Hytha borrowed an ohmmeter from a nearby TV repairman and tested the picture tube on the spot for continuity in the filaments. The filaments were found to have continuity and, therefore, the tube was good. TR 63.
Hughes testified that the picture tube was in excellent condition before Koltay replaced it. TR 172. Hytha testified that the tube was checked with a cathode ray tube tester and an ohmmeter after it was recovered from City T.V., and in his expert opinion, the tube was good. TR 64.
Based upon the above-cited facts and circumstances the Director of the Division of General Regulation hereby finds that the picture tube in question was in good working order when tested on April 25, 1977, and again on Nay lo, 1977. Further, it was good when tested in the home of John Kyle and in working order after it had been replaced by Sandor Koltay.
The petitioner, Sandor Koltay, raised the defense that the picture tube in question was defective because it had "intermittent filaments," which would account for the fact that it had worked prior to his servicing the set and then worked of or he serviced the set. However, it was initially Koltay's opinion that the filaments were "open" rather than intermittent. TR 3511. Koltay went to Warren Quibelle, a TV repairman whom he knew, who suggested to him that the tube must be intermittent. Quibelle never saw the picture tube, as Koltay did not come to him until two or three days after the picture tube had been seized. TR 278. Quibelle, a CET with approximately 30 years experience in electronics, and accepted in this proceeding as an expert, testified that he has personally seen intermittent problems occur and , for lack of a better reason, he would often assume that it was an intermittent filament. TR 266, 267.
Richard Hughes testified that he had never witnessed an intermittent filament in an RCA set of this type. TR 172, 189. Joseph Hytha testified that he has witnessed only one true intermittent filament in his career and that was in a completely different kind of tube. TR 113.
Quibelle expressed doubts as to the accuracy of the 11.9 reading from filaments in a five-year-old picture tube. Quibelle also stated that the readings on a five-year-old set which had not been used very much, would probably be affected very little. TR 276. Joseph Hytha had earlier testified that the TV set used in this test was a rarely used piece of equipment. TR 110.
Based upon the testimony of Joseph Hytha and Richard Hughes, two electronics experts who had never seem am intermittent filament in the type of set involved in this case, and upon the fact that all the testimony from the Petitioner indicates that he thought the filaments were open rather than intermittent, and upon the testimony of Warren Quibelle, the Petitioner's expert who had never seen the tube, the Division Director finds there to be competent substantial testimony that the RCA picture tube in question was not intermittent.
The Hearing Officer made a finding that "Petitioner admitted that he used a `1AV' tube as opposed to a `2AV2' tube inasmuch as the tubes; are interchangeable and, in fact, some manufacturers suggest such a replacement with (sic) the original '2AV2' tube malfunctions." Upon review of the transcript, the Division Director finds that there was no competent substantial evidence for the Hearing Officer to find that the two tubes were interchangeable. The Petitioner, Koltay's statement was, when asked about which type of replacement to be used, that:
"It's a 1V2 tube. A lot of times I'd 2AV2's (sic) and they do work. The
IAV2 and IV2, the factory's-manufacturer's recommendations are a 2AV2 tube and you put it in and it's fuzzy and you can't readjust it, then you put in a IV2, less resistance."
The Division Director finds that there was no competent testimony at the hearing to conclude that a 2AV2 tube and a IV2 tube are interchangeable. In fact, the Petitioner testified that he sometimes replaces 2AV2 tubes with 1V2 tubes, providing less resistance although the manufacturer recommended replacement with a 2AV2 tube.
CONCLUSIONS OF LAW
The Respondent, Division of General Regulation has jurisdiction pursuant to Chapter 468, Florida Statutes.
Respecting the allegation that the Petitioner made untrue and misleading statements to John K. Kyle to the effect that he needed a new picture tube, there is substantial competent evidence in the record that Sandor Koltay d/b/a City T.V. did, in fact, make such untrue statements on or about May 6, 1977, to the effect that the filaments of the picture tube and the RCA color TV were open and that it needed a new picture tube.
Although the Petitioner contended that the filaments in the picture tube must have been intermittent, there is competent substantial evidence in the
record to show that the filaments of the picture tube were not intermittent, and that the picture tube was in good working condition. Further, the Petitioner knew or had knowledge imputed to him that the picture tube in the RCA TV was good when he told John Kyle that it was defective, in violation of Florida Statute 468.159(1)(a) and
The Petitioner knowingly inserted false and misleading information on Invoice No. 4180, presented to John K. Kyle, on or about May 6, 1977, to the effect that the focus tube installed was a "IV2" tube when, in fact, it was a "2AV2" tube, in violation of Florida Statute 468.159(1)(a)(b) and (f) , and Rules and Regulations 7B-2.15, F.A.C.
Petitioner, by installing a Montgomery Ward Airline brand tube instead of a Silvertone picture tube as quoted to Kyle and provided in the estimate given to him, violated the provisions of Section 468.158, Florida Statutes.
Wherefore and for the above-cited reasons, I, Elizabeth W. Willis, Director of the Division of General Regulation, Department of Business Regulation, State of Florida, do hereby reverse, in part, the Recommended Order of the Hearing Officer and to the extent specified in this Order, substituted this Agency's Findings of Fact and Conclusions of Law, and make the following Final Order.
FINAL ORDER
ELECTRONIC SERVICE DEALER REGISTRATION NUMBER 2615, issued to Sandor
Koltay, d/b/a City T.V., 3580-66 Avenue North, St. Petersburg, Florida, is hereby
REVOKED.
DONE and ORDERED in Tallahassee, Florida, this 2nd day of March, 1978.
ELIZABETH W. WILLIS
Division of General Regulation 725 South Bronough Street Tallahassee, Florida 32304
Pursuant to the Department of Business Regulation Appellate Rules, you have the right to appeal this Order to the Board of Business Regulation, by filling Notice of Appeal with the Executive Director, Department of Business Regulation, Johns Building, Tallahassee, Florida, within 20 days from the date of this Order.
Pursuant to Rule 7-1.22, Department of Business Regulation Appellate Rules, you must enclose a chock or money order made payable to the Department of Business Regulation for $25.00 as a filing fee. A copy of the Appellate Rules is attached.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was sent, by U.S. Mail to: Charles H. Scully, Esquire, 445-31st Street North, Suite 204, St. Petersburg,
Florida 33713 and Charles E.H. Beck, Esquire, 3806 Central Avenue, St. Petersburg, Florida 33711, this 2nd day of March, 1978.
RICHARD E. GENTRY J
| Issue Date | Proceedings |
|---|---|
| Mar. 06, 1978 | Final Order filed. |
| Dec. 01, 1977 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 02, 1978 | Agency Final Order | |
| Dec. 01, 1977 | Recommended Order | Respondent interchanged two different tubes without telling buyer. Civil penalty of $250. |
