STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHARON ADKINS, d/b/a )

A Consumer tip, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2304

)

DEPARTMENT OF BUSINESS ) REGULATION, STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Lauderhill, Florida, on June 6, 1979 before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Robert D. Hurth, P.A.

2425 East Commercial Blvd. Marwayne Office Plaza, Suite 101 Ft. Lauderdale, Florida 33308

For Respondent: David M. Maloney

Staff Attorney

Department of Business Regulation 725 South Bronough Street

Johns Building

Tallahassee, Florida 32304 ISSUE PRESENTED

Whether Petitioner should be granted registration as an electronic repair dealer, pursuant to Chapter 468, Florida Statutes.

FINDINGS OF FACT

1. Petitioner, Sharon Adkins, filed application with Respondent for registration as an electronic repair dealer, together with the forty-five dollar registration fee, in August, 1978. A second application was filed in September, 1978 which reflected that Petitioner had commenced business under the name "A Consumer Tip" at Ft. Lauderdale, Florida on August 23, 1978. By letter of October 24, 1978, Petitioner was advised by Respondent that her application was denied. The stated reason for denial was that the name "A Consumer Tip" was already known as a title for public service advertising in the yellow pages of the telephone directory in her community, and that therefore, registration could not be validated for a name which was misleading within the meaning of Rule 7B-

   2.08 Florida Administrative Code, and within the meaning of Section 468.151, Florida Statutes. Petitioner thereafter requested an administrative hearing on the denial of her registration (testimony of Petitioner, Exhibits 2-4).

2. The advertising pages of the Southern Bell Telephone Company's telephone directory for Fort Lauderdale for the years 1978-79 and 1979-80 reflect a listing of Petitioner's business name "A Consumer Tip", address, and telephone number. At various places throughout the directory informational items appear which are directed to users of the classified section. A number of these items are headed by the words "a consumer tip" which offer the reader information concerning such subjects as wedding anniversaries, tornado safety rules, and ways to save energy. (Exhibit 1)

   
   

   CONCLUSIONS OF LAW

   
   

3. The parties stipulated at the hearing that Petitioner met all statutory and regulatory qualifications for registration as an electronic repair dealer and that the sole matter in issue was whether or not Respondent could deny resignation solely with regard to the alleged misleading nature of the business name.

   
   

4. Section 468.155, Florida Statutes, prescribes registration procedures for electronic repair dealers and states pertinently as follows:

   
   

   468.155 - Registration Procedures. -- Each service dealer shall pay a fee as herein provided for each place of business operated by him in this state and shall register with the division upon forms prescribed by it. If the business is to be carried on under a fictitious name, such fictitious name shall be stated. . .Upon receipt of the required fee, the division shall, if the applicant is of good moral character, validate the registration and send a proof of such validation to the service dealer. . .

   
   

5. Section 468.159 provides in part as follows:

   
   

   468.159 Invalidation of Registration; Civil Penalties. --

   1. The division may refuse to validate. . . the registration of a service deader for any of the following acts or omissions related to the conduct of his business done by himself or any employee, partner, officer, or member of the service dealer:

      1. Making or authorizing any statement or advertisement which is untrue or misleading and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading;

   
   

6. Petitioner contends that the procedures set forth in Section 468.155 are controlling and merely confer on Respondent the ministerial act of registering an applicant if he submits the departmental application forms containing required information, pays the required fee, and is determined to be of good moral character. Respondent, however, claims that Section 468.159 provides it discretionary authority to refuse initial registration as well as invalidate existing registration for the grounds stated therein. Respondent

   further states that such an exercise of discretion on its part is not a matter open to challenge unless abuse of the discretion has been demonstrated.

   
   

7. It is considered that Respondent is correct in its claim that registration of electronic repair dealers is discretionary within the statutory limitation of Chapter 468. One indicia of such discretion is shown by the fact that Section 468.155 permits the agency to determine if the applicant is of good moral character. This is a determination that necessarily requires the application of sound discretion. Further, that statutory provision provides that if the applicant meets the conditions stated therein, Respondent shall "validate" the registration. The word "validate" is also used in Section

   468.159 which gives the agency discretionary authority to refuse to "validate" the registration of a service dealer for certain acts or omissions related to the conduct of his business. Thus, it is clear that Section 468.159 provides Respondent with discretionary grounds for denial of registration. Accordingly, the sole question for determination is whether or not the listing of a business in a telephone directory that is the same combination of words used by the telephone company therein to promote the use of its classified section constitutes the "making or authorizing any statement or advertisement which is untrue or misleading", and which therefore would authorize denial of registration under subsection 460.150()(a). In this regard, it should be noted that neither the Florida Electronic Repair Act of 1970 nor Respondent's rules contained in Chapter 7B-2, Florida Administrative Code, authorizes or requires the agency to approve the business name of a registrant. In fact, the rules cited by Respondent in its denial of registration require a service dealer to conduct business and to advertise such business in its "legal trade name" (see Rule 7B-2.28(5). Further, it is apparent that the examples of misleading advertising listed in Respondent's Rule 7B-2.09 contemplate and deal exclusively with matters relating to advertisements concerning guarantees, price quotations, hours of service, qualifications of service personnel, and the like. The foregoing examples of subjects of advertising which might contain misleading information deal solely with the promotion of sales, and are similar to matters considered by the First District Court of Appeals in Harris v. Florida Real Estate Commission, 368 So.2d 1123 (Fla. 1 DCA 1978). There, the Court held that the State Real Estate Commission had no authority to refuse to register a registered real estate broker's trade name that included the name of a franchiser, and which was considered by the Real Estate Commission to be misleading to the public.

   
   

8. It may well be true that Petitioner's use of the name in question in the telephone directory may mislead consumers into believing that the firm is sanctioned or otherwise approved by the telephone company. However, it is concluded that Respondent, even though understandably concerned about such a possibility, is not empowered to restrict the use of Petitioner's business trade name by denial of registration and would exceed its authorized discretion if it acted in such a manner.

RECOMMENDATION

That Petitioner's application for registration as an electronic repair dealer be approved.

DONE and ENTERED this 27 day of July, 1979, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

David M. Maloney Staff Attorney

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

Robert D. Hurth, P.A.

2425 East Commercial Blvd. Marwayne Office Plaza, Suite 101 Ft. Lauderdale, Florida 33308

Docket for Case No: 78-002304

Orders for Case No: 78-002304