STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CURTIS A. GOLDEN, STATE ATTORNEY ) FOR THE FIRST JUDICIAL CIRCUIT, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1760

) ACU-THIN WEIGHT CONTROL CENTER OF )

PENSACOLA, INC., and its Principles ) Mark W. Daw, Liz Hebert, Julianne ) Daw, and Juanita Campbell, )

)

Respondents. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings on September 29, 1983. The parties were represented by counsel:

APPEARANCES

For Petitioner: William P. White, Jr., Esquire

Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501

For Respondent: James Fletcher Fleming, Esquire

Post Office Box 1831 Pensacola, Florida 32598

and

For Respondents: Carey D. Bearden, Esquire Liz Hebert and 717 St. Charles Avenue Juanita Campbell New Orleans, Louisiana 70130

By complaint issued June 1, 1983, petitioner alleged that respondents do business in Pensacola, and in a single judicial circuit, and that:

Respondents advertised and sold to the public a device purportedly causing weight loss.

Respondents failed to honor expressed and implied warranties contrary to their advertisements. Respondents marketed a device purported to cause weight loss without demonstrable evidence that such device actually causes any such weight loss.

The complaint alleges that these practices "violate the law and public policy of the United States and the State of Florida as established by section(s) [sic] 501.204, Florida Statutes, common law and/or case law," and that they

"constitute unfair and/or deceptive trade practices" in that they are unlawful, "unethical, immoral or unscrupulous . . . and . . . have damaged consumers, competitors or other businessmen," all in violation of Part II, Chapter 501, Florida Statutes.

ISSUE

Whether there is probable cause for petitioner to bring an action against respondents for violation of the Florida Deceptive and Unfair Trade Practices Act?

FINDINGS OF FACT

1. At the time this matter was called for hearing, counsel for all parties stipulated and agreed that probable cause existed for proceedings in circuit court. There was no stipulation as to the accuracy of the factual allegations of the administrative complaint, but there was agreement that there was no impediment of any kind to circuit court proceedings.

   
   

   CONCLUSIONS OF LAW

   
   

2. Under the Florida Deceptive and Unfair Trade Practices Act, Sections

   501.201 et seq., Florida Statutes (1981), an "enforcing authority" is authorized to bring an action "to obtain a declaratory judgment that an act or practice violates [Chapter 501, Part II, Florida Statutes (1981)]," Section 501.207(1)(a), Florida Statutes (1981), or an "action on behalf of one or more consumers for . . . damages . . ." Section 501.207(1)(c), Florida Statutes (1981). Before instituting judicial proceedings for declaratory judgment or for damages, however, "the enforcing authority shall, pursuant to an administrative hearing, determine that there is probable cause to bring the action." Section 501.207(2), Florida Statutes (1981).

   
   

3. The "enforcing authority" is the Department of Legal Affairs when a violation "occurs in or affects more than one judicial circuit or if the Office of State Attorney fails to act upon a violation within 90 days after a written complaint has been filed with the State Attorney." Section 501.203(4), Florida Statutes (1981). Where the violation occurs solely within or affects only a single judicial circuit, as here, the Office of the State Attorney is the "enforcing authority," whether the complaint is filed directly with the Office of the State Attorney or whether it is referred by the Department of Legal Affairs.

   
   

4. In the present case the parties have stipulated that probable cause for judicial proceedings exists and that petitioner has no legal obstacle to bringing such judicial proceedings.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner find probable cause to institute judicial proceedings against respondents pursuant to Section 501.207(1), Florida Statutes (1981).

DONE and ENTERED this 4th day of October, 1983, in Tallahassee, Florida.

ROBERT T. BENTON II

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 4th day of October, 1983.

COPIES FURNISHED:

William P. White, Jr., Esquire Assistant State Attorney

Post Office Box 12726 Pensacola, Florida 32501

James Fletcher Fleming, Esquire Post Office Box 1831

Pensacola, Florida 32598

Carey D. Bearden, Esquire 717 St. Charles Avenue

New Orleans, Louisiana 70130

Docket for Case No: 83-001760

Orders for Case No: 83-001760