STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK RESNICK and SMART SERVICE )

)

Petitioners, )

)

vs. ) CASE NO. 78-1687

)

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

)

Respondent. )

)

RECOMMENDED ORDER APPEARANCES

For Petitioners: Alexander M. Siegel, Esquire

1303 North State Road 7

Margate, Florida 33062

For Respondent: David M. Hudson, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304

ISSUE

Whether the application of Petitioner for registration as an electronic repair dealer should be denied.

FINDINGS OF FACT

1. Petitioner Jack Resnick d/b/a Smart Service petitioned for an administrative hearing upon receipt from the Respondent of a Notice of Intent to Deny License or Registration. The hearing was scheduled for November 27, 1978 at 2:00 p.m. in Tallahassee, Florida. Prior to the hearing the parties requested that the Hearing Officer write a Recommended Order upon submission of "Stipulation of Facts and Questions of Law" filed jointly by the parties, copy of which is attached hereto and made a part hereof.

   
   

2. The instruments filed in this case reflect that in February, 1978 Petitioner Jack Resnick applied to the Respondent, Division of General Regulation, for an electronic repair dealer registration under the provisions of Chapter 468, Florida Statutes.

   
   

3. In April, 1978 the Respondent notified Petitioner of its intent to deny said application for registration for the reason that applicant Jack Resnick intended to employ one Arthur Resnick as a repair work person In the business. Previously, in 1976 Arthur Resnick had been denied a registration certificate as

   an electronic service dealer by the Respondent, having been determined to be unfit and ineligible to be registered as an electronic repair service dealer.

   
   

4. The Recommended Order entered in that cause, which was adopted as Respondent's final order, made the following; findings of fact:

   
   

   1. Arthur Resnick caused to be advertised in local (Florida)newspaper advertisements which would the public believe

      Arthur Resnick Television Repair Service was registered with the Bureau of Electronic Repair when, in fact, it was not.

      
      

   2. Arthur Resnick had been asked to disclose on his application for registration whether

      he had been convicted of a felony, misdemeanor, or any infraction other than traffic viola- tions to which Arthur Resnick answered "no" when, in fact, Arthur Resnick had been convicted of three counts of theft by deception involving the repair of television sets by the Court of Common Pleas in Montgomery County, Pennsylvania.

      
      

      The Hearing Officer concluded that:

      
      

      The acts and conduct of the Petitioner in operating without a registration; advertising in a leading and deceptive manner; making false statements as an inducement to the public to authorize repair, and his failure to answer truthfully to certain questions on his sworn application for registration is good and sufficient cause for the director

      of the Department of Business Regulation, Division of General Regulations to deny the Petitioner a registration certificate as an electronic service dealer.

      
      

5. The order of the Respondent adopted the Recommended Order noting that it had received no exceptions to the Recommended Order from either party and thereupon denied the application for registration as an electronic service dealer filed by Arthur Resnick.

   
   

6. The application of Petitioner Jack Resnick indicates that he is to be the sole proprietor of the business Smart Service. It indicates that Arthur Resnick, who has the same address as the Petitioner, is to do repair work with a possible employee named Jerry Cohen. Respondent gave no other reason for the denial of Petitioner's application except for the indicated employment of Arthur Resnick.

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 468.159(1)(a) and (b) , Florida Statutes, provides:

   
   

   468.159 Invalidation 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 following acts or omissions related to the conduct of his business done by him- self or any employee, partner, officer,

      or member of the service dealer:

      1. Making or authorizing any statement or advertisement which is untrue or mis- leading and which is known, or which by the

         exercise of reasonable care should be known, to be untrue or misleading;

      2. Making any false promises of a character likely to influence, persuade,

   or induce a customer to authorize the repair, service, or maintenance of the equipment covered by this part;...

   
   

8. Chapter 468, Florida Statutes, is an act relating to electronic repair dealer registration for the protection of the consuming public.

   
   

9. The foregoing statute and Chapter 468 as a whole authorize the Respondent to deny an application for registration based upon acts or omissions of an applicant relating to the conduct of business as an electronic repair service dealer, even though such acts or omissions occurred prior to the registration as a service dealer in the State of Florida.

   
   

10. The statutes do not require that the proposed employees of the applicant for registration meet tie same standards that the applicant must neet prior to licensure. Only the applicant himself must fill out the application under the penalty of perjury and reweal facts to be evaluated by the Respondent,which is charged with protection of the public. It is the obvious intent of this statute, however, that the licensed dealer is responsible for any actions or omissions in the conduct of the licensed business by himself or any employee, partner, officer, or member of the service dealer. The licensed dealer holds the license and has the responsibility to protect the public, and if he does not do so, the registration can be invalidated or civil penalties can be invoked against the holder.

RECOMMENDATION

1. Retract the Notice of Intent to Deny License or Registration which was based on the fact that Arthur Resnick was the prospective employee of the Petitioner.

   
   

2. Grant Petitioner's application for registration as an electronic repair dealer providing he presently meets the requirements of the Respondent.

DONE and ENTERED this 20th day of December, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

David M. Hudson, Esquire Deputy General Counsel Depariment of Business Regulation

The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

Alexander M. Siegel, Esquire 1303 North State Road 7

Margate, Florida 33062

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DIVISION OF GENERAL REGULATION

DEPARTMENT OF BUSINESS REGULATION

JACK RESNICK and SMART SERVICE,

Petitioner,

vs. CASE NO. 78-1687

DEPARTMENT OF BUSINESS REGULATION, DIVISION OF GENERAL REGULATION,

Respondent.

/

FINAL ORDER

The above-styled cause has been presented to a Hearing Officer assigned by the Division of Administrative Hearings. The Hearing Officer entered her Findings of Fact, Conclusions of Law and Recommended Order on December 20, 1978, and a copy is attached hereto and incorporated by reference. After a thorough

review of the recommendations of the Hearing Officer and of the complete record in this cause, the Respondent enters its Final Order as follows:

FINDINGS OF FACT

The Findings of Fact contained in the Recommended Order are hereby adopted.

CONCLUSIONS OF LAW

The Conclusions of Law contained in the Recommended Order are hereby adopted with the exception of the following statement which appears on page three thereof:

The statutes do not require that

the proposed employees of the applicant for registration meet the same standards that the applicant must meet prior to licensure . .

To the contrary, Section 468.159, Fla. Stat. (1977) explicitly authorizes the Respondent to refuse to validate an application for registration as an Electronic Service Dealer on the grounds that an employee of the applicant has violated certain enumerated statutory proscriptions. However, due to the factual circumstances in the instant cause, the rejection of this recommended conclusion of law will not affect the ultimate resolution of this cause.

FINAL ORDER

The recommendation contained in the Recommended Order is hereby adopted; viz, the Notice of Intent to Deny License or Registration is hereby retracted and the application of Jack Resnick, d/b/a Smart Service for registration as an Electronic Repair Dealers is hereby approved.

DONE AND ORDERED this 2nd day of January, 1979, in Tallahassee, Florida.

ELIZABETH W. WILLIS, Director,

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304

Copies furnished to:

Mr. Jack Resnick

111 South Briny Apartment 1105

Pompano Beach, Florida 33065

David N. Hudson, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304

Alexander M. Siegel, Esquire 1303 North State Road 7

Margate, Florida 33062

Ms. Delphene C. Strickland Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 321304

Docket for Case No: 78-001687

Orders for Case No: 78-001687