STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 80-094

)

AAA EMPLOYMENT )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on April 9, 1980, in St. Petersburg, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on a Notice of Violation filed by the Department of State against AAA Employment (AAA) alleging that AAA had violated Rules 1C-2.08(8) and (10), Florida Administrative Code, and Sections 442.02(1)(b) and (d), Florida Statutes, and fining the agency $100.

It was determined that AAA Employment is not incorporated as was reflected in the style of the case, but is a limited partnership. John DeHaven is the active partner of the partnership. The style of the case is altered to reflect this fact.

APPEARANCES

For Petitioner: W. J. Gladwin, Jr., Esquire

Assistant General Counsel Department of State, The Capitol Tallahassee, Florida 32301

For Respondent: John DeHaven

AAA Employment Agency

Winter Haven, Florida 33880

ISSUE

The facts as presented indicate that AAA published a newspaper advertisement stating in pertinent part regarding fees: "Fee: 1 Weeks Salary Upon Acceptance." The Department alleged this ad was a misrepresentation of the fees charged because it departed from the fee schedule filed with the Department by (1) failing to include the word "cash" relating to the one week's salary, and

1. failing to include the alternative term payment option. Therefore, the issue is whether the ad as published departs from the fee schedule filed with the Department of State.

   
   

   FINDINGS OF FACT

   
   

   1. AAA Employment is organized as a partnership and licensed by the Department of State as a private employment agency.

   2. AAA caused to be published the newspaper advertisement received as Exhibit 2. This advertisement states with regard to fees: "Fee: 1 Weeks Salary Upon Acceptance."

      
      

   3. The complaint upon which the Department of State acted was received from a competitive agency. No evidence was presented concerning AAA's contracts with its customers. No evidence was presented concerning AAA's practices with regard to its customers.

      
      

   4. The fee schedule filed by AAA with the Department of State was introduced as Exhibit 1. This exhibit provides regarding the fee schedule as follows:

      
      

      FEE: 1 WEEKS SALARY--CASH

      PAYABLE: Upon acceptance or FEE: 2 WEEKS SALARY--TERMS

      PAYABLE: 1/4 upon acceptance, before starting of work. Remainder of fee to be paid in 3 weeks, in 3 equal weekly installments.

      
      

      Temporary work: 1/2 weeks salary, cash Daywork: 15 percent of gross salary Waiters & Waitresses: $40.00 cash

      All commission jobs: $200.00 cash

      All seasonal jobs are considered permanent work.

      
      

   5. A letter dated May 29, 1979, from the Department of State to AAA advised that the Department felt that advertisement of the agency's cash fee without advertisement of its two term fee was a violation of Rule 1C-2.08(10), Florida Administrative Code. Subsequently, AAA filed an amended fee schedule which was introduced as Exhibit 1 (see Paragraph 4 above). This amendment substantially altered the fee schedule and provided for both cash and term payments.

      
      

   6. The annual licensing fee paid by AAA is $100.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Department of State has authority to adopt rules to exercise its regulatory power over private employment agencies. Section 449.02(2), Florida Statutes. The Department has authority to levy civil penalties in an amount not to exceed the annual licensing fee for violation of the rules and regulations. Sections 449.02(1) and (2), Florida Statutes.

      
      

   8. Rule 1C-2.08(8), Florida Administrative Code, provides that no agency shall publish misleading or fraudulent advertising. Rule 1C-2.08(1) provides that no agency shall advertise or in any manner represent a schedule of fees other than the schedule approved by the Department of State, provided however, an agency may charge a lower fee than that approved by the Department.

      
      

   9. No evidence was presented concerning any actual transaction between AAA and a customer responding to its advertisement. Fraud and misrepresentation are charges which must be specifically charged and proven. No proof was presented that the agency's conduct was contrary to the representations in its

      advertisement. Such proof is necessary to prove a violation of Rule 1C-2.08(8), Florida Administrative Code, concerning fraud and misrepresentation.

      
      

   10. The advertisement states: "Fee: 1 Weeks Salary Upon Acceptance." The fact that the word "cash" was deleted is not material to the issue. In the absence of any qualification the statement of any price raises the presumption that payment is in cash. Therefore, deletion of the word "cash" as a qualifier of "1 Weeks Salary Upon Acceptance" is unnecessary.

       
       

   11. AAA did not publish a fee not filed with the Department of State. It did not publish all the fee data it had filed. The fee schedule provides an alternative to cash payment. The alternative fee is: "2 Weeks Salary--Terms, 1/4 upon acceptance, before starting work, Remainder of fee to be paid in 3 weeks, in 3 equal weekly installments." Additional fee data is provided in the fee schedule for temporary work, day work, waiters and waitresses, commission jobs and seasonal jobs. The Department's witness expressed his opinion that it was unnecessary for the additional fee data for specific jobs to be published, but that the alternative terms to cash payment did have to be published.

       
       

   12. All of the fee data following the cash terms are qualifications to those terms. The Department apparently recognizes that an advertisement is not a contract, and therefore it is unnecessary to set out all of the fee terms for specific positions. However, requiring inclusion of the non-cash terms is contrary to permitting exclusion of the special terms and fees, all of which modify or alter the cash terms. No factual or legal rationale for this contrary position was presented.

       
       

   13. Rule 1C-2.08(10), Florida Administrative Code, can be interpreted to require publication of the agency's total fee schedule as filed with the Department of State, because the rule speaks in terms of "schedule of fees," not individual fees. The Department does not apply this rule in such a manner and permits exclusion of portions of fee schedules as filed. By adopting this interpretation of the rule, the employment agency is in compliance with Rule 1C- 2.08(10) when it publishes a portion of its fee schedule substantially as filed. However, publication of only a portion of the fee schedule even though it has been filed might violate Rule 1C-2.08(8), Florida Administrative Code, if it were demonstrated that the advertisement were misleading or the conduct of the agency in combination with the advertisement established fraudulent conduct. This was not shown in the instant case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that no civil penalty be levied against the AAA Employment Agency.

DONE and ORDERED this 22nd day of April, 1980, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1980.

COPIES FURNISHED:

W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State

The Capitol

Tallahassee, Florida 32301

Mr. John DeHaven

AAA Employment Agency

500 East Central Avenue Winter Haven, Florida 33880

Docket for Case No: 80-000094

Orders for Case No: 80-000094