STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VINCENT KING )

a/k/a VINCENT B. REAM )

t/a KING TELEVISION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 76-1999

)

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF )

GENERAL REGULATION, )

)

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 cause on December 21, 1976, in Miami, Florida.

APPEARANCES

For Petitioner: Gerald H. Birnesser, Esquire

2119 Hollywood Boulevard

Hollywood, Florida 33020

For Respondent: Lawrence D. Winson, Esquire

Staff Attorney

Department of Business Regulations Division of General Regulation

The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

The Department of Business Regulations, Division of General Regulation (herein the Department) notified Petitioner that his application for registration as an electronic service dealer was being denied based on certain alleged evidence which the Department contends is good and sufficient cause for such registration to be denied pursuant to Section 468.155 and/or 468.159(1), Florida Statutes, to wit:

1. operating without a registration in violation of Section 468.155 and Section 468.159(1)(f)

   
   

2. being placed on probation for violating the Electronic Repair Act by operating without a registration in violation of Section 468.155 and Section 468.159(1)(f),

   
   

3. violating his probationary status by operating without being registered by the Bureau of Electronic Repair; and

4. holding himself out to the public as a registered electronic repair man when in fact he is not, in violation of section 468.159(1)(a), F.S.

Upon my consideration of the oral and documentary evidence introduced at the hearing, including the pleadings, the following relevant facts are found.

FINDINGS OF FACT

1. Mr. Richard Hughes, investigator for the Department, received approximately twelve complaints from various citizens in the Broward County area based on alleged faulty workmanship by the Petitioner. (See State's Composite Exhibit No. 2.) Customer invoice receipts reveal that Petitioner used State Registration No. 2739 on all customer invoice receipts. Evidence reveals further that Petitioner was at one time, the President of King Television, Inc., which was assigned State Registration No. 2739, but that registration expired some time during 1974.

   
   

2. William C. Kimberl, Jr. the Division's Director, by sworn affidavit dated December 7, 1976, stated that he, as custodian of the records for the Bureau of Electronic Repair Dealer Registrations, made a search of such records and found no record that Petitioner's business, which is located at 1107 N.W. 15th Place in Ft. Lauderdale, Florida, was registered. See State's Exhibit No. 1.

   
   

3. During August of 1976, Petitioner was charged with operating a business without a registration and for obtaining property in return for worthless checks and that he pleaded nolo contendre to the charge of operating a business without a registration and adjudication was withheld on the charges of obtaining property in return for worthless checks. Petitioner was placed on probation for eleven months. Additionally, the court required that Petitioner check all TV sets involving the complaints which had been received by the state agent (Mr. Hughes) and repair them to the customers' satisfaction. Thereafter and subsequent to repair, Petitioner was to receive a signed invoice from all disgruntled customers stating in essence that they were satisfied with the TV set as repaired. As to those complainants who refused to sign such an invoice, Petitioner was required to contact Mr. Hughes who would in turn independently check the set to determine whether or not it was operating properly and that, if such was the case, Petitioner would not be required to make further repairs to the set. With the exception of approximately two complainants, it suffices to say that Petitioner complied with the court's ruling regarding the repair of the TV sets. One complainant, Mrs. George Pollack of Hallendale, testified that she had made repeated calls to Petitioner in an effort to obtain her remote control selector to no avail. Petitioner testified credibly that he had ordered the part to repair the remote control selector from the manufacturer and that as soon as such parts were received, he would repair and return the selector to Mrs. Pollack.

   
   

4. Shirley Herbstman of Hollywood, contacted Petitioner during April, 1976, to have her set repaired. She paid approximately $102.00 to have tubes, transformer, and a remote control repaired, and when the set was returned, she contends that the same problem existed. Thereafter she called Ace TV and a yoke was replaced at her home for a cost of approximately $75.00. See Respondent's Exhibits No. 3 and No. 4.

   The Petitioner's Defense.

   
   

5. Petitioner testified that he received assurances from investigator Hughes that it was proper for him to operate under his old registration number i.e., No. 2739 until such time as he obtained his new registration. According to the evidence, it appears that this assurance was given during late 1975 at which time Hughes furnished Petitioner with an application form and instructed him to immediately file it with the Division. Evidence also reveals that Petitioner did not submit his application to the Department until August 9, 1976. By letter dated August 10, 1976, the Bureau Chief of Electronic Repair Dealer Registration advised Petitioner that his application for registration was being returned because of certain omissions on his application including his failure to tender the $30 application fee, the sales tax permit number or a receipt for such payment and a certification from the Secretary of State's office that the corporation was in good standing. Thereafter by letter dated October 15, 1976, Petitioner was further advised that after a review of all available facts known to the Division, his registration was not being validated pursuant to Chapter 468.155 and 468.159(1)(a), Florida Statutes. Petitioner testified further that he had not operated as a TV repairman other than to repairs sets per the terms of a court order and that subsequent to August, 1976, he had not, in any manner, held himself out as a registered repairman. He testified that once his license was rejected, he had all phones disconnected and that he was led to believe that his son would take over the business. As events developed, however, his son left the state.

   
   

   CONCLUSIONS OF LAW

   
   

6. Chapter 468.155, F.S., set forth registration procedures for electronic repair dealers. It provides among other things that a registration shall cease to be valid if not renewed annually or when any of the information provided in the registration forms ceases to be current. Based on the evidence adduced during the hearing that Petitioner's registration had expired at least two years prior to the time that he entered his plea of nolo contendre for operating as a registered repairman, even crediting his statement that he was given assurances by Mr. Hughes that it was proper for him to operate with his expired registration number until he received a new registration, in view of the record evidence that he failed to even submit his application to the Division for at least eight months after he received such assurances, it is found that he violated Chapter 468.155, F.S.

   
   

7. Chapter 468.159, F.S., authorizes the Division to refuse to validate a service dealer's registration for certain acts or omissions related to the conduct of his business which includes: (a) making or authorizing any statement or advertisement which is known to be untrue or misleading, or which by the exercise of reasonable care should be known to be true or misleading; or, for among other things, failing to comply with the provisions of Chapter 468.159.

I, therefore, find as a matter of law that (a) the Defendant is guilty of operating without a registration in violation of Chapter 468.155 and 468.159(1)(f); (b) that he was placed on probation for violating the Repair Act by operating without a registration in violation of Chapter 468, Sections 155 and 159(1)(f) F.S.; and (c) that he held himself out to the public as a registered electronic repairman when, in fact, he was not, in violation of Chapter 468.159(1)(a), F.S. Insufficient evidence was presented to establish that Petitioner violated his probationary status by operating without being registered by the Bureau of Electronic Repair and I shall, therefore, recommend that this allegation be dismissed.

RECOMMENDATIONS

1. Based on the above findings of fact and conclusions of law I recommend that the allegation that the Petitioner violated his probationary status by operating without being registered be dismissed.

   
   

2. Based on the remaining violations as found above, I recommend that the Respondent's action in denying Petitioner his registration certificate as an electronic service dealer be sustained.

DONE and ENTERED this 18th day of February, 1977, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Lawrence D. Winson, Esquire Staff Attorney

Department of Business Regulations Division of General Regulation

The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

Gerald H. Birnesser, Esquire 2119 Hollywood Boulevard

Hollywood, Florida 33020

Docket for Case No: 76-001999

Orders for Case No: 76-001999