STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) GENERAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1526

) HENRY AND SHARON ADKINS, t/a ) LAUDERDALE LAKES T.V., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at 8405 NW 53rd Street, Lindsley Building, Wing "B", Koger Executive Center, Miami, Florida, at 9:30

1. April 13, 1978, and continued at 9:30 A.M. June 7, 1978.

   
   

   APPEARANCES

   
   

   For Petitioner: Richard E. Gentry, Esquire

   The Johns Building

   725 South Bronough Street Tallahassee, Florida 32304

   
   

   For Respondents: Robert D. Hurth, Esquire

   Alan Fishman, Legal Intern Richard Goldstein, Legal Intern 2425 East Commercial Boulevard Marwayne Office Plaza, Suite 101 Fort Lauderdale, Florida 33308

   
   

   ISSUES

   
   

   1. Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976, by charging Joseph Scozzafava for a (1) 1,000 ohm resistor 2 watt, when in fact it was not replaced; in violation of Section 468.159(1)(d), Florida Statutes.

      
      

   2. Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976, by charging Joseph Scozzafava for a "Rebuilt Tuner", when in fact the work was not performed; in violation of Section 468.159(1)(d), Florida Statutes.

      
      

   3. Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for

      events on or about February 2, 1976,by charging Joseph Scozzafava for replacement of two (2) 6GH8 tubes, when in fact they were not needed; in violation of Section 468.159(1)(d) , Florida Statutes.

      
      

   4. The charging document in this cause, to wit, the Notice to Show Cause, had originally charged Henry Adkins and Sharon Adkins with the failure to identify the State Registration on invoice #3078 dated January 3, 1976, as required by Rule 7B-2.12(b), Florida Administrative Code. This count of the Notice to Show Cause was voluntarily dismissed by the Petitioner at the commencement of the hearing.

FINDINGS OF FACT

1. This cause comes on for consideration based upon the Notice to Show Cause of the Petitioner, which is complaint No. 108000-51 before the Petitioner, State of Florida, Department of Business Regulation, Division of General Regulation. The complaint is addressed to the Respondents, Henry Adkins and Sharon Adkins, his wife, who trade as Lauderdale Lakes T.V. and is directed to the following business entities owned by Henry Adkins or Henry Adkins and Sharon Adkins. The corresponding numbers which are reported here pertain to the license numbers assigned by the Petitioner to Henry Adkins or Henry Adkins and Sharon Adkins. Those licenses are for All-State T. V., No. 5079; Tower T.V., No. 6108; Lauderdale Lakes T.V., No. 5069; Inter-City T.V., No. 2895; X-Ray T.V., No. 2914; and M & H Electronics., No. 4854. Henry Adkins appears as the owner on all licenses. Sharon Adkins appears as the co-owner on the license for M & H Electronics, No. 4854.

   
   

2. Before presenting the case for consideration, the parties entered into these factual stipulations:

   
   

   1. The Division of Administrative Hearings has jurisdiction to consider this case.

      
      

   2. The Notice of Hearing in this cause is timely.

      
      

   3. Henry Adkins is listed in the six licenses referred to above and each of those licenses have a mailing address of 3504 NW 10th Avenue, Fort Lauderdale, Florida 33309. In addition, those licenses referred to above and the ownership stated are correct as to the existence of the entity, the ownership and the number assigned to the various entities by the Petitioner.

      
      

   4. The invoice of Lauderdale Lakes T.V., No. 3078, is authentic.

      
      

   5. The State of Florida, Department of Business Regulation, Division of General Regulation is the owner of a 1972 RCA color television which is the subject of this case.

      
      

   6. Three television tubes, to wit: two 6GH8 tubes, and one 6-CB6 tube are the property of the State of Florida, Department of Business Regulation, Division of General Regulation.

      
      

   7. Joseph Scozzafava is not the owner of the subject 1972 RCA color television, nor was the money paid for the repair of the said television money of Mr. Scozzafava.

      
      

3. The invoice referred to above may be found as Petitioner's Exhibit No.

   1. admitted into evidence. The television set is Petitioner's Exhibit No. 2

      admitted into evidence, and the three tubes are Petitioner's Composite Exhibit No. 3 admitted into evidence.

      
      

4. In late January, 1976 employees of the Petitioner, operating on complaints, prepared a television set for purposes of ascertaining whether or not the Respondent, Henry Adkins, d/b/a Lauderdale Lakes T.V., was. operating in violation of Chapter 468, Florida Statutes. In furtherance of their investigation they took tile 1972 RCA television set which has been mentioned as being Exhibit No. 2, and played the set for a couple of days to determine whether or not it was in good working order. From an observation point of view, there were no malfunctions during the test period. In the color circuit to include all the major components such as the tuner, transformer, and resistors, all items checked out as operating properly. In addition, 15 tubes within the set were checked by tube fester and the tubes proved to be acceptable. (The tube tester had not been certified.)

   
   

5. After checking the set out, Frank Butler, an investigator with the Petitioner and Certified Electronics Technician, overloaded a tube within the color circuit. The specific tube is a 6-CB6 burst amplifier. The effect of overloading this tube was to remove the color from the set, such that it would play only in black and white. The created malfunction in this tube did not have an adverse effect on the other components within the set.

   
   

6. The employees of the Petitioner also marked a number of the tubes in the set by crimping the connectors on the tubes by way of identification. An operative 6-CB6 burst amplifier was then inserted in the set and the set was played again for two days, within which time it operated successfully.

   
   

7. The Petitioner's employees then contacted one Joseph Scozzafava, an employee with the Department of Business Regulation, Division of Beverage. The purpose of the contact with Scozzafava was to allow him to take the television set owned by the State and to contact Lauderdale Lakes T.V. for purposes of having that organization make repairs on the subject television. The idea was that the defective 6-CB6 tube would he left in the set so that the television only played black and white. When they took the set to Scozzafava in late January, 1976, they showed him that the set operated on all local-stations and then removed the operative 6-CB6 tube and replaced it with the inoperative tube and left that tube in the set. The Petitioner's employees then instructed Scozzafava to call Lauderdale Lakes T.V. to have the repairs effected. To achieve this end, Scozzafava was paid $100.00 by the Petitioner and in turn would write a check from his own account for the amount of the total cost of repairs.

   
   

8. The set was picked up from Scozzafava on January 27, 1976. The pickup was made by an employee of the Respondent, Henry Adkins, in a truck listed to the license, Inter-City T.V.

   
   

9. The television set was repaired under an invoice of Lauderdale Lakes T.V., a license held by Henry Adkins. That invoice is the Petitioner's Exhibit No. 1 admitted into evidence.

   
   

10. The facts repeal that two 6GH8 tubes were replaced by employees of the Respondent, Henry Adkins, and charged to Scozzafava, when it was in fact unnecessary to replace those tubes. Those tubes may be found as part of Petitioner's Exhibit No. 3 admitted into evidence, and when tested subsequent to the time the television set was returned to the employees of the Petitioner, were found to be operable over a period of one or more days arid when played

    during the course of the hearing, were found to be in good operating condition. The charges and the indication of replacement may be found in the invoice and the invoice was executed by an employee of Henry Adkins, the Respondent. That employee was working for Lauderdale Lakes T.V.

    
    

11. The invoice also reflects the replacement of one 1,000 ohm 2 watt resister, when in fact no replacement of the resister occurred. Scozzafava was charged for this item which was not replaced.

    
    

12. Finally, there is an indication that the tuner within the set was rebuilt and a charge made to Scozzafava for that service. The Petitioner's employees had placed wax and tape across the shield which covers the inner parts of the tuner and that wax and tape had not been disturbed during the pendency of the time which the set was with the employees of the Respondent. The tuner was not rebuilt, notwithstanding the claim by witnesses of the Respondents, to the effect that certain repairs could have been made to the surface of the tuner without the necessity to remove that shield. The evidence leads to the conclusion that the tuner was not rebuilt. In summary, Scozzafava paid $88.45, to Lauderdale Lakes T.V. from funds provided him by the Petitioner. Of that amount paid, $8.40 was paid for two 6GH8 tubes; $6.25 was paid for the one 1,000 ohm 2 watt resistor which was not installed and $21.00 was paid for rebuilding the tuner, when in fact the tuner was not rebuilt. Some portion of the labor charge of $32.50 went toward these items; however, it is unclear what portion of that charge pertains to those items.

    
    

13. As briefly mentioned before, the television set was returned to Scozzafava, who in turn gave it to the Petitioner's employees, who kept the set until such time as the case was brought. Employees of the Respondent, Henry Adkins, driving an Inter-City T.V. truck, returned three tubes, one 6-CB6 and two 6GH8; they did not return a 1,000 ohm 2 watt resister. The balance of the

    $100.00 paid to Scozzafava for the purposes of assisting the Petitioner was returned to the Petitioner.

    
    

14. There was no testimony to the effect that either Henry Adkins or Sharon Adkins were directly involved in the pick-up or repair of the television set. Sharon Adkins was involved in the billing process, based upon a cost estimate given to Scozzafava in the amount of $85.00.

    
    

15. Both Respondents indicated that they make a background check of all employees hired, for purposes of determining the employees' integrity. The Respondents, through Sharon Adkins, also indicated that they had made attempts to locate all employees who were involved with the pick-up or repair of the television set and were unsuccessful in locating them due to the death of one employee and the inability through use of a private detective to locate the other individuals. Henry Adkins also indicated that he had fired employees in the last two years because those employees put in unnecessary parts or overcharged for parts.

    
    

16. The Petitioner has charged the Respondents with committing acts of fraud and dishonest dealings by charging Joseph Scozzafava for the one 1,000 ohm

    1. watt resister; charging him for the rebuilt tuner and replacing the two 6GH8 tubes when in fact they were not needed. To the Petitioner, these acts were in violation of Section 468.159(1)(d), Florida Statutes. That provision reads:

       "In violation of registration; civil penalties.-

       
       

       1. The Division may refuse to validate or may invalidate temporarily or permanently the

    registration of a service dealer for any of the acts or omissions related to the conduct of his business done by himself or any employee, partner, officer, or member of the service dealer;

    (d) Committing any other act which constitutes fraud or dishonest dealing."

    
    

17. By charging for the two 6GH8 tubes that were not needed; by failing to replace the one 1,000 ohms 2 watt resister, and charging for such replacement and for charging to rebuild a tuner which was not rebuilt, the employees of the Respondents are guilty of fraud and dishonest dealing. For those violations and under the exact language of the statute, the Respondents would appear to be guilty of a violation of Section 468.159(1)(d), Florida Statutes. However, the law does not contemplate that an employer is the absolute insurer of all the acts of his or her employees. Absent a showing of direct involvement on the part of the Respondents in the acts which constituted fraud and dishonest dealing, the Petitioner must show negligence or a lack of due diligence by the Respondents, In the Respondents' supervision of the employees who have committed the acts of fraud and dishonest dealing. (See Taylor v. State Beverage Department, 194 So.2d 321 (2nd DCA, 1967).)

    
    

18. An isolated incident such as the one in the case under consideration does not satisfy the requirement that the Petitioner show negligence or a lack of due diligence on the part of the Respondents. Therefore, the Petitioner has failed to establish a violation on the parts of the Respondents as it pertains to the electronic service dealer registration Nos. 5069, 5079, 2895, 4854, 6108 and 2914, which are held by Henry Adkins and Sharon Adkins and Henry Adkins, solely.

    
    

19. Full consideration has been given to the proposed findings of facts and conclusions of law submitted and when appropriate are incorporated in this Recommended Order.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction in this cause.

    
    

21. Based upon a full consideration of facts in this case, it is concluded as a matter of law that the PetitIoner has failed to show that Henry Adkins and Sharon Adkins, his wife, have violated the conditions of Section 468.159(1)(d) , Florida Statutes, pertaining to their respective electronic service dealer registration Nos. 5069, 5079, 2895, 4854, 6108 and 2914, as alleged in the Notice to Show Cause. Consequently, those licenses held by the Respondents may not be invalidated temporarily or permanently.

RECOMMENDATION

It is recommended that the Notice to Show Cause against Henry and Sharon Adkins, which is recorded as complaint No. 108000-51, pertaining to electronic service deal registration Nos. 5069, 5079, 2895, 4854, 6103 and 2914 be DISMISSED.

DONE AND ENTERED this 30th day of June, 1978, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Richard E. Gentry, Esquire Staff Attorney

State of Florida, Department of Business Regulation

The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

Robert D. Hurth, Esquire

2425 East Commercial Boulevard Marwayne Office Plaza, Suite 101 Fort Lauderdale, Florida 33308

Docket for Case No: 77-001526

Orders for Case No: 77-001526