Judges: ROBERT T. BENTON, II
Agency: State Attorney
Latest Update: Nov. 30, 1983
Summary: Whether there is probable cause for petitioner to bring an action against respondents for violation of the Florida Deceptive and Unfair Trade Practices Act?Administrative complaint against Respondent dismissed. Respondent was concrete supplier and one batch of cement was no good but there's no evidence this resulted from unfair practices.
83-2807STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CURTIS A. GOLDEN, State Attorney ) for the First Judicial Circuit, )
)
Petitioner, )
)
vs. ) CASE NO. 83-2807
) SHEAR CONCRETE PRODUCTS, INC., ) and DONALD E. SHEAR, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on November 8, 1983. Nobody appeared formally on behalf of the respondent, although employees of respondent, who appeared at the hearing voluntarily, were called as adverse witnesses. Petitioner was represented by counsel:
William P. White, Jr., Esquire Assistant State Attorney
Post Office Box 12726 Pensacola, Florida 32501
By complaint issued August 20, 1983, petitioner alleged that respondents do business in Pensacola, and in a single judicial circuit, and that:
Respondents are engaged in the business of supplying concrete products, including ready-mixed concrete for use in the construction industry; Respondents have, on occasion, supplied inadequate or defective concrete and failed to honor express warranties or implied warranties of merchantability.
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) 672.314 and 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
About seven o clock on the morning of May 23, 1983, Michael S. Boyden telephoned the Pensacola offices of Shear Concrete Products, Inc. (Shear Concrete), and asked that 20 cubic yards of concrete be delivered to a construction site at 438 Creary Street. Under construction there was the house Mr. Boyden was building for himself and his family. (He has since finished it and moved in.) During the first conversation, somebody told him the concrete would arrive at half past ten. At eleven, with no concrete in sight, Mr. Boyden again telephoned; Danny Woods or Terry Knowles told him the concrete was on the way. In fact, it was at least five minutes before one before the first Shear Concrete truck was loaded, and this truck reached the site about two in the afternoon. Thirty-five or forty minutes later, the first truck had been emptied of concrete.
The second Shear Concrete truck was loaded at quarter past one, but reached the construction site within minutes of the time the first arrived. Mr. Boyden, a concrete finisher and three other men he had hired were all present at the time the second truck arrived. At the finisher's direction, water was added to the concrete in the second truck; and its contents were also eventually emptied, wheelbarrow by wheelbarrow. By half past three, it was clear that a greater quantity of concrete would be needed; but it was evening before the finisher, Caesar Johnson, told Mr. Boyden that the concrete from the second truck was not setting up properly.
Once cement, sand, water and gravel are mixed in a concrete mixer, a reaction begins that runs its course regardless of whether the mixture is poured in time. (The time this reaction takes depends on, among other things, how hot the day is.) If mixing is still going on when the concrete "gets hot," the elements of the mixture do not cohere and the batch is no longer useful as concrete. Adding water retards the reaction to the extent it acts as a cooling agent, but it does not reverse the process. By the time the mixture was poured into the Boydens' foundation, it was no longer suitable for its intended use.
The other concrete had hardened by the next day, but concrete from the second truck, the one driven by Ronald Lane Thompson, was soft and friable. Mr. and Mrs. Boyden incurred expense in removing the miscongealed concrete. They ordered and received a replacement load on May 31, 1983, which was satisfactory. They have never paid for this load, even though Shear Concrete has billed them and given them a "notice to owner" in an effort to preserve its rights under the mechanics' lien law.
Petitioner's proposed findings of fact have been considered and adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, conclusive or subordinate.
CONCLUSIONS OF LAW
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).
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 the 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.
On the merits, the question is whether there has been "adequate proof of probable cause for the institution of a civil suit." Kasha v. Department of Legal Affairs, 375 So.2d 43, 44 (Fla. 3d DCA 1979). The quantum of proof is less than a preponderance of the evidence. Id. There must be a showing only that there is a reason to believe that respondents have been guilty of "unfair or deceptive acts or practices." Section 401.204(1), Florida Statutes (1981). This language has been held not to apply to real estate transactions, State ex rel. Herring v. Murdock, 345 So.2d 655 (Fla. 4th DCA 1977), and certain provisions have been limited to "consumer transactions." Black v. Department of Legal Affairs, 353 So.2d 655 (Fla. 2d DCA 1977). Neither of these limitations pertain here.
In construing the language "unfair or deceptive acts or practices," [D]ue consideration and great weight shall be
given to the interpretations of the Federal
Trade Commission and the federal courts relating to s. 5(1)(1) of the Federal Trade Commission Act (15 U.S.C. 45 (a)(1)), as from time to time amended.
Section 501.204(2), Florida Statutes (1981). The United States Supreme Court quoted with approval the following formulation by the Federal Trade Commission:
whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise--whether, in other words, it is within at least the penumbra of some
common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen). Statement of Basis and Purpose of Trade Regulation Rule 408, Unfair or Deceptive Advertising and
Labeling of Cigarettes in Relation to the Health Hazards of Smoking. 29 Fed. Reg. 8355 (1964). (Quotation marks omitted.)
FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244, n.5 (1972). Here, it was clear that the Boydens were put to substantial expense and inconvenience, but the evidence did not establish probable cause to believe that respondents' trade practices were the cause, much less that anything done by the respondents was within the penumbra of an established concept of unfairness, or immoral, unethical, oppressive or unscrupulous.
The uncontroverted evidence was that the second truck reached the site sooner after being loaded than the first truck did. Nothing in the evidence suggested that the mixture loaded into the first truck differed in any way from the mixture loaded into the second truck. The difference that rendered the second load unfit for use was, as far as this record discloses, the longer time the second truck stood at the site before unloading. Respondents did not do the unloading or control the timing, once the truck arrived. Nothing in the evidence suggests that the Boydens or their employees were deceived about or unaware of the effect of waiting too long to pour. The water was added to the mixture at the direction of the finisher, who was acting on behalf of Mr. Boyden rather than respondents.
Upon consideration of the foregoing, it is RECOMMENDED:
That petitioner dismiss the administrative complaint filed against the respondents.
DONE and ENTERED this 30th day of November, 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 30th day of November, 1983.
COPIES FURNISHED:
William P. White, Jr., Esquire Assistant State Attorney
Post Office Box 12726 Pensacola, Florida 32501
Donald E. Shear
Shear Concrete Products, Inc. Pensacola Boulevard and
East Roberts Road Post Office Box 7142
Pensacola, Florida 32504
Curtis A. Golden, State Attorney
First Judicial Circuit of Florida
Post Office Box 12726
190 Governmental Center Pensacola, Florida 32501
Docket for Case No: 83-002807
Orders for Case No: 83-002807
| Issue Date |
Document |
Summary |
|
Nov. 30, 1983 |
Recommended Order
|
Administrative complaint against Respondent dismissed. Respondent was concrete supplier and one batch of cement was no good but there's no evidence this resulted from unfair practices.
|
