STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOCA FINANCIAL PLANNING CENTER, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 84-1173

)

BOCA FINANCIAL PLANNERS, INC. ) AND FLORIDA DEPARTMENT OF STATE, 1/ )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on September 19, 1984 in Delray Beach, Florida.

APPEARANCES

For Petitioner: Jeffrey A. Levine, Esquire

900 North Federal Highway, Suite 380 Boca Raton, Florida 33432

For Respondent Bruce F. Winter, Esquire

Boca Financial 1900 Corporate Boulevard, Suite 101 Planners, Inc.: Boca Raton, Florida 33431

For Respondent Carol J. Barice, Esquire Florida General Counsel

Department of Department of State, The Capitol State: Tallahassee, Florida 32301

ISSUE

Whether the corporate name of the parties are confusing and, if so, whether Respondent's name reservation should he revoked.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings.

   
   

2. On June 13, 1980, Respondent, Florida Department of State, issued charter number 673400 permitting the use of the corporate name Boca Financial Planning Center, Inc. to the Petitioner in reliance on Chapter 607, Florida Statutes.

   
   

3. On September 15, 1982, Respondent, Florida Department of State, issued charter number G00060 permitting the use of the corporate name Boca Financial Planners, Inc. to the Respondent in reliance on Chapter 607, Florida Statutes. Petitioner commenced its operation during 1980 and engages in a wide range of financial and tax planning and assets management. To garner business, Petitioner has advertised in the Yellow Pages of the local telephone directory and has sponsored a series of financial planning seminars during 1982 as a means to develop new business. Petitioner did not receive notice from the local telephone company that its Yellow Page ad for the year 1984 was up for renewal and, therefore, did not renew same. Petitioner blame a drop in its business on the fact that it was not notified of its Yellow Page ad renewal by the phone company and claimed that other factors confirmed its position that the two names herein are creating confusion and a marked decline in its business. To further support its conclusion that the names involved are confusing and should not be permitted, Petitioner relates that it has received mail destined for respondent's business on approximately two occasions and has received telephone calls intended for Respondent's company.

4. Respondent, Boca Financial Planners, Inc., is also in the business of financial planning; however, the bulk of its business in financial planning comes from the managing of assets of family as legal clients as opposed to seeking financial planning business from the general public. Respondent's president and owner, Bruce Winter, is an attorney and a certified financial planner. He is also licensed to sell stocks, bonds and other investment vehicles in addition to being a real estate broker. Respondent first became involved in the financial planning business during May of 1983. Respondent does not conduct any financial planning seminars nor does he seek any financial planning business other than the "somewhat- smaller circle of friends and family that he presently serves in the financial planning business." (Testimony of Bruce Winter)

5. Respondent placed an ad in the Yellow Pages of the Boca Raton telephone directory after opening his financial planning office during 1983. Unlike Petitioner, Respondent has not received any mail or telephone calls destined for Petitioner. Respondent attributes his ability to attract financial planning business from his success as a legal practitioner and estimates that less than ten percent of his financial planning business comes from the ad in the Yellow Pages or from the general public.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

   
   

7. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

8. Section 607.024(1)(b) , Florida Statutes, provides in pertinent part that the corporate name:

   
   

   shall not be the same as, or deceptively similar to the name of, any domestic corporation existing under the laws of this state or any foreign corporation authorized to transact business in this state, and names the exclusive right to which is, at the time, reserved in the manner provided in this act, or the name of a corporation which has in effect ,a registration of its corporate name as provided in this act....

   
   

9. To implement that section, Respondent, Department of State, has promulgated Rule Section 1N-1.04 , Florida Administrative Code, wherein the term "deceptively similar" is defined. That section provides in pertinent part that:

   
   

   corporate names are deceptively similar if on comparison of the names, written as above provided, there is an apparent difference,

   but the difference or differences are of such character that the names are likely to be confused by persons giving oral or written information to this office, or by persons in the Office of the Secretary of State who are attempting to enter into or retrieve from the records of this office corporate information, or by persons attempting to receive written or oral information from the Office of the Secretary of State, or by judicial or law

   enforcement offices, or by persons in the general public who are attempting to identify a corporation solely on the basis of written or oral communications concerning its name, or by consumers who could be easily confused by similar names. Such names shall be

   rejected by the Division and shall not be filed.

   
   

10. To further lend guidance to a determination of whether or not a corporate name is deceptively similar, Respondent, Department of State, has promulgated Rule Section 1N-1.041, Florida Administrative Code.

    
    

11. Upon consideration of the above-referenced statutes and rules, it is concluded that the corporate names Boca Financial Planning Center, Inc. and Boca Financial Planners, Inc. are not confusing or otherwise deceptively similar and no basis exists to conclude that Respondent's name reservation should be revoked. Given the above factual findings which reveal that the subject name here at issue does not fall within any of the examples of deceptively similar corporate name styles as set forth in Section 1N-1.041, Florida Administrative Code, the generic and localized tenor of the contested name, the absence of any substantiated incidences of confusion as relates to the two corporate entities and the undisputed facts indicating that the two corporate entities are not seeking to represent the same clientele to the point where there has been any actual confusion in the public or others as set forth in Section 607.024(1)(b), Florida Statutes, or Rule Section 1N-1.04, Florida Administrative Code, it is concluded that the corporate names of the parties are not confusing and therefore revocation of Respondent, Boca Financial Planners, Inc.

`s, name is not warranted.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent, Florida Department of State, Division of Corporations, enter a Final Order finding that the corporate name Boca Financial Planning Center, Inc. is not deceptively similar to or confusing with the name Boca Financial Planners, Inc. Consequently, it is further recommended that the relief requested by Petitioner be DENIED and the Petition DISMISSED.

RECOMMENDED this 14th day of November, 1984, in Tallahassee, Florida.

JAMES E. BRADWELL

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 November, 1984.

ENDNOTE

1/ Respondent, Florida Department of State, was only a nominal party herein. As such, it filed a written response to the petition for hearing. As such, it filed a written response to the petition for hearing but presented no witnesses or other evidence during the hearing.

COPIES FURNISHED:

Jeffrey A. Levine, Esquire 900 N. Federal Highway Suite 380

Boca Raton, FL 33432

Bruce F. Winter, Esquire 1900 Corporate Blvd.

Suite 101

Boca Raton, FL 33431

Carol J. Barice, Esquire General Counsel Department of State

The Capitol Tallahassee, FL 32301

Dana McKinnon Director

Division of Corporations The Capitol

Tallahassee, FL 32301

Docket for Case No: 84-001173

Orders for Case No: 84-001173