STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CURTIS A. GOLDEN, STATE ATTORNEY, ) FIRST JUDICIAL CIRCUIT, STATE OF ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3002

)

HAMMOND MEAT MARKET, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came on for hearing before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. Hearing was held in Pensacola, Florida, on February 6, 1984. The parties were represented by:

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

Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501

For Respondent: Ms. Connie Hammond, Co-owner

Hammond Meat Market 4708 North "W" Street

Pensacola, Florida 32501

This matter arose on Petitioner's complaint alleging that Respondent has engaged in deceptive trade practices in the advertisement and sale of its meat products. This is a probable cause proceeding conducted pursuant to Subsection 501.207(2), Florida Statutes (F.S.). Petitioner submitted proposed findings of fact. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they are found to be subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.

FINDINGS OF FACT

1. From late 1981 to mid-1983, Respondent advertised its meat products in the Pensacola newspaper. These ads offered large quantities of beef for sale on installment plans.

   
   

2. The ads contain intentionally confusing messages with the large print suggesting higher quality meat or lower prices than is actually offered. For example, in some of the ads the "special" giving the weight in pounds and price for four payments is immediately adjacent to language such as "plus this free. .

   . bonus." The description of the "special" is typically placed over or immediately adjacent to a drawing or representation of a steer. A careful reading of the fine print reveals that the "bonus" is actually included within

   the total weight which at first appears to be the representation of the amount of beef that will be received. The "bonus" consists not of beef, but of other types of meat.

   
   

3. In November 1981, Leslie and Bernice Shelby responded to an advertisement offering 200 to 300 pounds of beef for approximately $150. When they attempted to make this purchase, they were dissuaded from doing so by the salesman who told them the advertised meat was of poor quality. He then questioned them as to their income and advised them they could afford better quality meat. They eventually purchased about 500 pounds of meat for 12 monthly installments totalling over $1,600.

   
   

4. The Shelby's felt they were hurried into signing an agreement and didn't know what they were getting. Mrs. Shelby was especially upset over a $35 insurance charge that she didn't understand and didn't realize would be included in the contract price.

   
   

   CONCLUSIONS OF LAW

   
   

5. Subsection 501.204(1), F.S., provides that "Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are . . . unlawful." Sections 817.06 and 817.41, F.S., declare untrue, deceptive or misleading advertising to be unlawful.

6. Rule 2-9.02, Florida Administrative Code (F.A.C.), provides in part: misleading advertising. It shall be an

   unfair or deceptive act or practice to:

   * * *

   (8) Advertise goods or services with intent not to sell them as advertised.

   
   

7. Rule 2-9.04, F.A.C., provides in part:

   
   

   Bait and switch. It shall be an unfair and deceptive act or practice to:

   1. Advertise a product or service for sale when the advertisement is not a bone fide offer to sell the advertised product or service. Among acts or practices which will be considered in determining if an advertise- ment is a bona fide offer are:

      1. The refusal to show, demonstrate, or sell the product or service offered in accordance with the terms of the offer,

      2. The disparagement by acts or words of the advertised product or service or the disparagement of the guarantee, credit terms, availability of service, repairs or parts, or

         in any other respect, in connection with it.

         . . .

         
         

8. Where, as here, a single judicial circuit is involved, the State Attorney enforces the above provisions. Subsection 501.203(4), F.S. Before instituting judicial proceedings the enforcing authority is required to establish probable cause pursuant to administrative hearing. Subsection 501.207(2), F.S.

9. Petitioner has demonstrated through testimony and documentary evidence that probable cause exists to believe that Respondent Hammond Meat Market engaged in unfair and deceptive trade practices in violation of the provisions quoted above. Advertisements were intentionally confusing and misleading. The advertised product was disparaged to customers by Respondent's salesman and was thus not intended to be sold as advertised.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that Petitioner find probable cause to initiate judicial proceedings against Hammond eat Market pursuant to Subsection 501.207(1), Florida Statutes (1983).

DONE and ENTERED this 16th day of March, 1984, in Tallahassee, Florida.

R. T. CARPENTER 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 16th day of March, 1984.

COPIES FURNISHED:

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

Post Office Box 12726 Pensacola, Florida 32501

Ms. Connie Hammond Hammond Meat Market 4708 North "W" Street

Pensacola, Florida 32501

Docket for Case No: 83-003002

Orders for Case No: 83-003002