STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOME MEDICAL EQUIPMENT COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4314

)

HOME OXYGEN SERVICE & ) MEDICAL EQUIPMENT, INC. and ) FLORIDA DEPARTMENT OF STATE, ) DIVISION OF CORPORATIONS, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on April 3, 1985, at Fort Myers, Florida.

APPEARANCES

For Petitioner: Shawn D. Bayes, pro se

President

Home Medical Equipment Company 11899 90th Avenue North Seminole, Florida 33542

For Respondent: Vincent D. Sapp, Esquire Home Oxygen Post Office J

Service: Fort Myers, Florida 33902 PRELIMINARY STATEMENT

By letter dated November 26, 1984, Home Medical Equipment Company, Petitioner, by and through its President, Shawn D. Bayes, requested an administrative hearing to contest the issuance of the name Home Oxygen Service & Medical Equipment, Inc., to Respondent. Although not specifically alleged in this letter, the only grounds upon which Petitioner can contest the registering of such name is that the name is the same as an existing name or deceptively similar to such name. The addition of the words "Oxygen Service" makes the two names dissimilar; accordingly, Petitioner's only contention remaining is that the names are deceptively similar.

At the hearing Petitioner called two witnesses, Respondent called one witness, and one exhibit was admitted into evidence. At the conclusion of the hearing, the parties waived the right to submit proposed recommended orders to the Hearing Officer.

FINDINGS OF FACT

1. Petitioner and Respondent operate two of the four medical equipment suppliers located on Fowler Avenue in Fort Myers. The other two companies are Fort Myers Surgical Company and American Medical Oxygen Supply Company.

   
   

2. Petitioner received an erroneous statement from Summit Medical Supplies, Inc., containing two invoice numbers for which Petitioner had no record. When asked for a copy of these invoices, Summit Medical Supplies, Inc., provided Petitioner with copies of invoices made out to Respondent, both of which had been marked paid on the face of the invoices. These two invoices were addressed to Home Oxygen Services and Medical Equipment, Inc., 4536 Fowler Avenue, Fort Myers, Florida (Exhibit 1). Petitioner's address is 3559 Fowler Avenue and the erroneous statement addressed to Home Medical Supplies, Inc., was sent to this address.

   
   

3. On one occasion Petitioner received a call from Smalley Transportation regarding delivery of hospital beds to Petitioner which, it was soon discovered, were addressed to Respondent.

   
   

4. In his testimony Shawn Bayes referred to several incidents involving customers and several incidents involving businesses which had contacted his company regarding equipment belonging to Respondent. None of these incidents had been observed by the witness but had been told to him by other employees. Timely objection to this testimony was made.

   
   

5. On one occasion a suction pump had been delivered to a patient who later requested Petitioner to pick up equipment. Upon arrival it was learned Respondent had inadvertently picked up Petitioner's pump with the other equipment provided by Respondent. The suction pump was returned to the premises from which it had been picked up by Respondent.

   
   

6. Respondent acknowledged there has been some confusion by customers regarding whose equipment they were using but that confusion was not limited to Petitioner and Respondent but also involved the other medical supply companies. Once explained to a customer, the confusion did not recur. All of the equipment supplied by the parties is clearly identified by tags on the property containing the name and address of the supply company.

   
   

7. All of the medical equipment suppliers with businesses in Fort Myers supply similar equipment to predominantly elderly patients, approximately 50 percent of which are covered by Medicare. These patients are referred to the supplier by doctors, hospitals, and home health agencies.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

9. The Division of Corporations in the Department of State is charged with the responsibility of registering corporate names pursuant to Chapters 607 and 617, Florida Statutes. This function is largely ministerial. Once an applicant applies for registration, the Division is required to register the name unless it is the same as or deceptively similar to a certain preexisting name.

10. Rule 1N-1.03, Florida Administrative Code, provides in part that "corporate names are the same if a comparison of the names...reveals no difference. Since there is a distinctive difference between the names of Petitioner and Respondent, they clearly are not the same.

    
    

11. Deceptively similar names are defined in Rule 1N-1.04, Florida Administrative Code, which provides in pertinent part:

    
    

    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 informa- tion, or by persons attempting to receive written or oral information from the Office of the Secretary of State, or by judicial or law enforcement officers, 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....

    
    

12. The burden is on Petitioner to prove, by a preponderance of the evidence, the name of Respondent company is deceptively similar to Petitioner's name. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). This, it has failed to do. Even if the incidents of confusion between the names to which Petitioner's witness testified had been corroborated by admissible evidence, Petitioner still would not have met the burden of proving the names are deceptively similar. At most that evidence, if admitted, would show that, upon occasion, someone fails to look at the label on the equipment, fails to remember from whom he received the equipment, or fails to properly read the name and address to which equipment is to be shipped.

    
    

13. From the foregoing, it is concluded that Home Medical Equipment Company has failed to prove, by a preponderance of the evidence, that Home Oxygen Service & Medical Equipment, Inc., is a name deceptively similar to its own name and therefore subject to being invalidated or changed.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED:

That the Petition of Home Medical Equipment Company be dismissed.

DONE AND RECOMMENDED this 12th day of April, 1985, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1985.

COPIES FURNISHED:

Shawn D. Bayes, President

Home Medical Equipment Company 11899 90th Avenue North Seminole, Florida 33542

Vincent D. Sapp, Esquire Post Office Box J

Fort Myers, Florida 33902

Honorable George Firestone Secretary of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 84-004314

Orders for Case No: 84-004314