STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HANGAR TWO, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-1773

)

HANGAR TWO AVIATION, INC. )

and DEPARTMENT OF STATE, )

DIVISION OF CORPORATIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on October 6, 1981, in Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on the Petitioner's request to the Department of State for a hearing on conflicting names. Prior to the hearing, the Department and Petitioner stipulated that the Department had chartered Hangar Two, Inc. on April 4, 1980, and had chartered Hanger Two Aviation, Inc. on November 5, 1980. The Respondent, Hanger Two Aviation, Inc., did not enter into the stipulation above, did not file any pleadings in this cause and did not appear, although it received notice of the proceedings. The ultimate issue in this case is whether there is a conflict between the corporate names of Hangar Two, Inc. and Hanger Two Aviation, Inc. This question turns upon whether the second corporation was incorporated in a similar name in good faith.

APPEARANCES

For Petitioner: Wallace I. Garrick, Esquire

Suite 1000, Concord Building

66 West Flagler Street Miami, Florida 33130

For Respondents: Hanger Two Aviation, Inc.

Did not appear

Department of State Did not appear

FINDINGS OF FACT

1. Documentary evidence was received that Hangar Two, Inc. was chartered on April 4, 1980, and had "Hangar Two, Inc." and its unique logo registered as a service mark on June 18, 1980. See Exhibits 1, 2, 3 and 6.

   
   

2. Documentary evidence was received that Hanger Two Aviation, Inc. was incorporated on November 25, 1980. See Exhibits 4 and 5.

3. Wallace I. Garrick testified on behalf of Hangar Two, Inc. Garrick has been the attorney for Carl Knight for a number of years and handled the incorporation of Hangar Two, Inc. for Knight. For several years, Knight has been engaged in the business of repairing, rebuilding and maintaining aircraft. Garrick has been to Knight's place of business many times. The business was located at North Perry Airport for a number of years and did business as Hangar

1. Knight was forced to move his business and incorporated his business as Hangar Two, Inc. The business of the corporation is the repair and maintenance of aircraft. Knight moved his business to a building on the southeast corner of the same airport, which he caused to be identified and marked with his service mark "Hangar 2." See Exhibit 6.

   
   

   1. Located in this building when Knight moved there was an aircraft repair and maintenance business operated by George Ritch. Thereafter, Ritch retained a one-room office and leased a small portion of the floor space for his business use.

      
      

   2. Hanger Two Aviation, Inc. was incorporated by Milton Margulies, a local attorney. Its primary Director and agent for service of process is Jean S. Morse, an employee of Margulies.

      
      

   3. Garrick was advised by Margulies that he had incorporated Hanger Two Aviation, Inc. for George Ritch, and that he had no further relationship with the corporation or with Ritch.

      
      

   4. Incorporation of Hanger Two Aviation, Inc. was sought after the date that Knight's business moved into the same building occupied by Ritch and after the date Knight's business was incorporated in the name Hangar Two, Inc. Incorporation of Hanger Two Aviation, Inc. was not in good faith.

      
      

   5. Both corporations are engaged in the same business, aircraft repair and maintenance, and their principal places of business are located in the same building at the same airport.

      
      

   6. Garrick has seen bills and other mail intended for Ritch's business delivered to Knight's business.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Department of State is charged with administration of corporation laws of the State of Florida. Section 607.027(3), Florida Statutes, provides:

      
      

      The Department of State may revoke

      any reservation if, after a hearing, it finds that the application therefor or any transfer thereof was not made in good faith.

      
      

   8. Section 607.024(1)(b), Florida Statutes, provides that a corporate name shall not be the same or deceptively similar to the name of any domestic corporation existing under the laws of this state.

      
      

   9. Clearly, these two businesses, having such similar names, both engaged in aircraft repair and maintenance, and both located in the same building, are confusing to the public. Knight's business was incorporated and a service mark registered for his business, Hangar Two, Inc., prior to the incorporation of Hanger Two Aviation, Inc. Ritch may be presumed to have been aware of Knight's

business and its name. Ritch's incorporation of his business as Hanger Two Aviation, Inc. after the date Knight moved his business and with knowledge of Knight's corporate name shows bad faith. Pursuant to Section 607.027(3), supra, the Department should revoke the corporate name of Hanger Two Aviation, Inc. upon the finding that the application for this name was not made in good faith.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of State revoke the reservation for the corporate name Hanger Two Aviation, Inc.

DONE and ORDERED this 26th day of October, 1981, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1981.

COPIES FURNISHED:

Wallace I. Garrick, Esquire Concord Building, Suite 1000

66 West Flagler Street Miami, Florida 33130

Jean S. Morse, Registered Agent Hanger Two Aviation, Inc.

2020 NE 163rd Street

North Miami Beach, Florida 33162

Stephen Nall, Esquire

Office of the General Counsel Department of State

The Capitol

Tallahassee, Florida 32301

George Firestone, Secretary Department of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-001773

Orders for Case No: 81-001773