STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATHAN GREENBLATT, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1510

) BLANCHE FITTERMAN and DEPARTMENT ) OF STATE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Coral Gables, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on May 23, 1979.

APPEARANCES

Petitioner Nathan Greenblatt, and respondent Blanche Fitterman each appeared in propria persona.

Respondent Department of State was represented by counsel: William J. Gladwin, Esquire

Department of State

The Capitol

Tallahassee, Florida 32301

Petitioner seeks revocation of respondent Fitterman's reservation of the exclusive right to use the corporate name "International Vacations, Inc."

FINDINGS OF FACT

1. In December of 1973, petitioner Greenblatt and another registered the fictitious name "International Vacations" with the clerk of the Circuit Court of Dade County, Florida. Since that time, petitioner has been engaged in business as a travel agent in Miami, under the name of "International Vacations."

   
   

2. In the spring of 1977, before May 1, respondent Fitterman, who has herself been active in the travel business, filed an application with respondent Department of State to reserve the corporate name "International Vacations, Inc." At the time, Mrs. Fitterman was unaware that there was a travel agency in Miami with the name "International Vacations." When she learned that there was, she telephoned petitioner. In conversations with petitioner she related that she had incurred certain expenses, and there was some discussion of petitioner's arranging a trip for her and two of her grandchildren. In the course of the conversation, Mrs. Fitterman agreed not to use the corporate name "International Vacations, Inc." On May 23, 1978, respondent Fitterman wrote petitioner offering to "relinquish our hold on" the name in exchange for the trip,

   Petitioner's exhibit No. 1, but negotiations subsequently fell through. After agreeing not to use "International Vacations, Inc.," respondent Fitterman organized a corporation which she named "Miami Tours, Inc.," but she came to feel that this name was less satisfactory than "International Vacations, Inc." Since 1977, she has been doing business in Miami under the name of American International Travel Club.

   
   

3. On or about December 4, 1977, petitioner Greenblatt applied to the Department of State on behalf of a California corporation, International Vacations, Inc., for authorization to transact business in Florida. A check in the amount of one hundred four dollars ($104.00) drawn in favor of the Secretary of State accompanied this application; and the check has been negotiated. Petitioner's exhibit No. 2.

   
   

   CONCLUSIONS OF LAW

   
   

4. Any person may reserve the "exclusive right to the use of a corporate name. . .by filing with the Department of State an application. . ." Section 607.027(1), Florida Statutes (1977). Respondent Fitterman made such an application to reserve the name "International Vacations, Inc." No issue as to the sufficiency of the application has been raised.

   
   

5. Where such an application has been made and, if appropriate, renewed, the "Department of State may revoke [the] reservation if. . .it finds that the application. . .was not made in good faith." Section 607.027(3), Florida Statutes (1977). Because the Department took a neutral position in these proceedings, the burden to show bad faith fell on petitioner. Petitioner did not meet this burden, inasmuch as the uncontroverted evidence was that respondent Fitterman is and has been actively involved in the travel business and did not know that petitioner carried on business under the name "International Vacations" at the time she reserved the right to use the corporate name "International Vacations, Inc."

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent Department of State refuse Petitioner's request that it revoke respondent Fitterman's reservation of the exclusive right to use the corporate name "International Vacations, Inc."

DONE and ENTERED this 12th day of June, 1979, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Nathan Greenblatt

311 Lincoln Road

Miami Beach, Florida 33139

Mrs. Blanche Fitterman

American International Travel Club, Inc. 17070 Collins Avenue, Suite 219

Miami Beach, Florida 33160

William J. Gladwin, Esquire Department of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 78-001510

Orders for Case No: 78-001510