STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF TALENT ) AGENCIES, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5521

)

JANE DANIELS d/b/a )

1. J. NORRIS CO., INC., )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   This matter was heard by William R. Dorsey, Jr., the assigned Hearing Officer of the Division of Administrative Hearings, on February 15, 1990, in Fort Lauderdale, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Cynthia Gelmine, Esquire

   Department of Professional Regulation 1940 North Monroe Street

   Tallahassee, Florida 32399-0792

   
   

   Far Respondent: Gregory F. Esposito, Esquire

   5440 North State Road 7, Suite 23 Fort Lauderdale, Florida 33319

   
   

   STATEMENT OF THE ISSUE

   
   

   The issue is whether the talent agency license held by Respondent should be disciplined for exercising undue influence on an artist for financial gain, and failing to provide clients with copies of contracts which list the services to be provided and fees to be charged and which state that the agency is regulated by the Department.

   
   

   PRELIMINARY STATEMENT

   
   

   The Department presented five witnesses at the hearing, and four witnesses testified for Ms. Daniels. Five Exhibits for the Department were admitted, as were four for the Respondent. The material contained in the Department's request for admissions, which had not been answered, was treated as admitted under Rule 1.370, Florida Rules of Civil Procedure. A transcript of the hearing was filed and the parties filed proposed findings of fact. Rulings on the proposed findings of fact are made in the Appendix to this Recommended Order.

   FINDINGS OF FACT

   
   

   1. Jane Daniels has been licensed as a talent agency in the State of Florida, doing business as T.J. Norris Co., Inc., and holds license TA-0000015. Ms. Daniels is married to Bill Daniels, a photographer. Their offices are in Fort Lauderdale. Each has a separate entrance, but the suite of offices connect internally.

      
      

   2. Terri Bjorklund took her infant son, Glenn, to the T.J. Norris agency in February, 1988, responding to one of the advertisements seeking babies and toddlers for advertising work during the Christmas season.

      
      

   3. Ms. Bjorklund showed Art Feldman, an employee of the T.J. Norris agency, two 8x10 photographs and a photo card bearing three smaller pictures of her son during her interview. Mr. Feldman told Ms. Bjorklund that the pictures of the baby "belong in the garbage," and made the baby "look like an amputee." Mr. Feldman told Ms. Bjorklund that she needed a professional photographic portfolio for her son to obtain work, and he suggested a photographer right in the building who was, in fact, Bill Daniels. Ms. Bjorklund paid $170 to the

      T.J. Norris agency; $30 was a registration, and $140 was a down payment on the photographic portfolio, which would cost $295. Ms. Bjorklund was told that the balance due on the portfolio could be paid from work the agency obtained for the baby. Ms. Bjorklund was not able to pay any more money for the photographs because her husband had been hurt in a motorcycle accident, was not able to work, and the family was on food stamps. She emphasized that if she could not "work off the balance" through work obtained for the baby, she did not want to pay the $140 that day. Based upon Ms. Daniels' assurances about the payment arrangement, Ms. Bjorklund had the photographs taken by Bill Daniels.

      
      

   4. When Ms. Bjorklund called the T.J. Norris agency on several occasions to see if there was work available for her son, she was told that no work would be found until Ms. Bjorklund paid off the balance of the portfolio in full. When Ms. Bjorklund stated that she intended to complain to the Department of

      Professional Regulation or to a local television station because their agreement was not being honored, she was given appointments to take the baby to castings. These were always cancelled, except for one, where the part required the child to speak; this was useless because the child was only 8 months old. The application filed with the T.J. Norris agency disclosed the child's age.

      
      

   5. Ms. Bjorklund ultimately took her son to other talent agencies, and obtained work for her son through them. In obtaining this work, Ms. Bjorklund used the card with the pictures Mr. Feldman had derided. Those photographs were adequate for use in obtaining bookings for a young child. Expensive photographic portfolios are not ordinarily done for young children because they change quickly as they grow.

      
      

   6. Ms. Bjorklund never received a copy of the contract she signed with the

      T.J. Norris agency when she paid the $30 registration fee at the agency.

      
      

   7. Jonathan Ferrara went to the talent agency on July 12, 1988. He submitted head shots and resumes in order to obtain modeling or acting work through the T.J. Norris Agency. Mr. Ferrara uses the stage name Mark Love. Mr. Ferrara was interviewed by Art Feldman, an employee of the T.J. Norris Agency. Mr. Ferrara never received a copy of the contract with the agency, although he had paid a $30 registration fee, and an additional $15 to make a master card, which is sent to movie companies for use in casting.

   8. Jodi Lewine went to the T.J. Norris Agency to obtain modeling or acting work on August 5, 1988. She had no prior experience.

      
      

   9. She was interviewed by Art Feldman, who told her she would have to have photographs taken before the agency could solicit work for her. Feldman suggested that the photographs be taken by the photographer whose studio was in the same building, the studio of Bill Daniels. Mr. Feldman never told Ms. Lewine that she could have photographs taken by another photographer, but there is no evidence that he required Ms. Lewine to have the work done by Mr. Daniels. (Tr. 43, 1. 16-19, and Tr. 49, 1. 9)

      
      

   10. Models do not ordinarily acquire portfolios of photographs until after they have worked on several jobs through collecting the photographs taken on those jobs.

       
       

   11. Ms. Lewine never received a copy of the contract which she signed with the T.J. Norris Agency.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

       
       

   13. The Administrative Complaint filed in this matter seeks disciplinary action which includes revocation or suspension of the talent agency license. The Department has the burden of proving its charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

       
       

   14. Talent agencies regulated by the Department of Professional Regulation are required to provide clients with written copies of their contracts. Section 468.410(3), Florida Statutes, states

       
       

       A talent agency shall give each applicant a copy of a contract which lists the services to be provided and the fees to be charged. The contract shall state the talent agency is regulated by the Department and shall list the address and telephone number of the Department.

       
       

       The T.J. Norris agency did not give copies of the contracts to Terri Bjorklund, Jonathan Ferrara, or Jodi Lewine, in violation of the statute.

       
       

   15. A talent agency is also subject to discipline for exercising undue influence over an artist for financial gain. Section 468.402(1)(t) provides

       
       

       The Department may ... revoke a license, suspend the license for a reasonable period, or assess a civil penalty in an amount not to exceed the biennial license fee, when it is satisfied that the owner or operator of the license ... or any person on behalf of the owner or operator, has exercised undue influence on the artist in such a manner as to exploit the artist for financial gain of the licensee or a third

       party, which includes, but is not limited to, the promoting or selling of services to the artist.

       
       

   16. The statute contains no definition of the term "undue influence." The Department has not defined "undue influence" in the rules governing talent agencies, Chapter 21-19, Florida Administrative Code. Part VII of Chapter 468, which governs talent agencies, does imply that the Legislature regards the relationship between the artist and the talent agent as one in the nature of a fiduciary relationship. In the portion of the statute proscribing sexual misconduct in the operation of a talent agency 1/ the Legislature states "the talent agent-artist relationship is founded on mutual trust". Section 468.415, Florida Statutes. This legislative declaration imposes more than the ordinary covenant of good faith which inheres in commercial contractual relationships under the Uniform Commercial Code. Sections 671.201(19) and 671.203, Florida Statutes.

       
       

   17. Issues of undue influence usually arise in probate proceedings, or in proceedings to cancel deeds given in lieu of testamentary dispositions. Those cases hold that undue influence is "over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is a destruction of free agency and will power". Ballard v. Ballard, 549 So.2d 1176, 1178 (Fla. 2d DCA 1989). It would be difficult to conclude, on this record, that the actions of Ms. Daniels or Mr. Feldman rose to that level in their transaction with Ms. Bjorklund or Lewine. It does not appear, however, that the Legislature meant to import the judicial definition of "undue influence" from probate proceedings into the statute regulating talent agencies. Section 468.402(1)(t), gives as a specific example of undue influence "the promoting or selling of services to the artist." Given that statutory example, the denigration of the pictures of which Ms. Bjorklund brought with her of her infant son, for the purpose of obtaining Ms. Bjorklund's agreement to have portfolio pictures done by Ms. Daniels' husband, constitutes undue influence under the statute. This conclusion is also supported by the expert's testimony that it is not common practice among talent agencies to have expensive portraits of infants done for use in obtaining modeling work in commercials, because they grow so fast that the photographs' short useful life does not justify their expense. The actions of agents of the T.J. Norris agency in dealing with Ms. Bjorklund violated Section 468.402(1)(t).

       
       

   18. Similarly, the conduct by Mr. Feldman with Ms. Lewine was also calculated to cause her to have an expensive portfolio of photographs done by Ms. Daniels' husband. It is uncommon for aspiring models who have not worked before to pay for such portfolios, and Mr. Feldman told her that having pictures done was mandatory, which is inconsistent with general industry practice. The overall circumstances, including requiring Ms. Lewine to have the pictures done, and suggesting the use of a photographer in the building, who is married to the owner of the agency, were calculated to influence Ms. Lewine to use the services of Mr. Daniels, and falls within the prohibition of Section 468.402(1)(t), Florida Statutes, against exploiting artists for financial gain of a third party by promoting or selling services to the artist.

       
       

   19. Ms. Bjorklund, Mr. Ferrara, and Ms. Lewine were not given copies of contracts after they registered at the T.J. Norris Co., Inc.

   20. The Department proved five violations of the statutes regulating talent agencies. A civil penalty in the amount of $400 may be assessed for each violation of Part VII of Chapter 468, Florida Statutes. See Rule 21-19.009(2), Florida Administrative Code. Consequently, a fine of $2,000 is appropriate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Professional

Regulation finding T.J. Norris Co., Inc., to have violated Section 468.402(1)(t), on two occasions and Section 468.410(3), on three occasions, and imposing an administrative fine of $2,000.

DONE and ENTERED this 27th day of April, 1990, at Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1990.

ENDNOTE

1/ It should be emphasized that there is no allegation of any sort of sexual misconduct here.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-5521

Rulings on findings proposed by the Department:

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 1.

3. Adopted in Finding of Fact 2.

4. Adopted in Finding of Fact 3

5. Adopted in Finding of Fact 3.

6. Adopted in Finding of Fact 3.

7. Adopted in Finding of Fact 3.

8. Adopted in Finding of Fact 3.

9. Subordinate to Finding of Fact 3.

10. Subordinate to Finding of Fact 3.

11. Adopted in Finding of Fact 3.

12. Adopted in Finding of Fact 4.

13. Adopted in Finding of Fact 4.

14. Adopted in Finding of Fact 4.

15. Adopted in Finding of Fact 5.

1. Adopted in Finding of Fact 9.

2. Rejected as irrelevant.

3. Rejected as irrelevant.

4. Rejected as irrelevant.

5. Rejected as irrelevant.

6. Adopted in Finding of Fact 11.

7. Rejected as subordinate.

8. Rejected as subordinate.

9. Adopted in Finding of Fact 10.

10. Rejected as unnecessary.

Rulings on findings proposed by T.J. Norris Co. concerning Bjorklund:

1. Implicit in Finding of Fact 6.

2. Rejected for the reasons stated in Finding of Fact 4.

3. Rejected for the reasons stated in Findings of Fact 3 and 4.

4. Rejected as unnecessary.

5. Rejected as unnecessary.

6. Accepted in Finding of Fact 6.

Concerning Ferrara:

1. Covered in Finding of Fact 7, the man he met was Art Feldman.

2. Adopted in Finding of Fact 7.

3. Rejected, the testimony that Mr. Ferrara received no contract is more believable, especially in view of similar testimony from Ms. Bjorklund and Ms. Lewine to the same effect.

4. Rejected as unnecessary.

5. Rejected, having paid the $30 registration fee, it is more likely than not that a contract was actually executed. Had Mr. Ferrara only wished to review the contract, he would not have paid the $30.

1. Rejected as unnecessary, because the question is not whether Ms. Lewine received papers, but whether she received the contract. Her testimony that she had not received the contract was adamant and believable. See, A Tr. 46.

2. Rejected as a conclusion of law.

3. Rejected as a conclusion of law.

COPIES FURNISHED:

Cynthia Gelmine, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Gregory F. Esposito, Esquire 5440 North State Road 7

Suite 23

Fort Lauderdale, Florida 33319

Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Mildred Gardner, Executive Director Department of Professional Regulation Board of Talent Agencies

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 89-005521

Orders for Case No: 89-005521