STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SECRETARY OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 80-685

)

CHECKMATE INTERNATIONAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on May 12, 1980, in Fort Lauderdale, Florida.

W. J. Gladwin, Jr., Esquire, Tallahassee, Florida, appeared on behalf of the Petitioner, Secretary of State, Division of Licensing. Its president, Thomas Mutnich, represented the Respondent, Checkmate International.

On January 15, 1980, Petitioner issued a Notice of Violation charging Respondent with operating a branch office without such office being properly licensed by the Secretary of State. Thereafter, a fine in the amount of $100 was assessed against the Respondent. The issue for determination is whether the fine was properly assessed against the Respondent.

Thomas Murray and Steven T. Barnes testified on behalf of the Petitioner.

Mr. Mutnich and Cyndee Heyl testified on behalf of the Respondent.

FINDINGS OF FACT

1. Respondent is licensed by Petitioner to operate its business at 13 S.

   E. Sixth Street, Fort Lauderdale, Florida. Although Respondent has attempted to qualify to operate a branch office, Petitioner has neither approved nor licensed Respondent to operate a place of business other than at the aforestated address.

   
   

2. The 1979-80 edition of the Yellow Pages telephone directory published by Southern Bell Telephone and Telegraph Company for the Hollywood, Florida, area carried a listing for Checkmate lnternational Detective Agency, which listing recites 9481 S. W. 49th Street, Cooper City, Florida, as the Respondent's address, and 434-1926 as the Respondent's telephone number. The listing does not include the address at which Respondent is licensed. The identical advertisement appears in the 1980-81 Yellow Pages directory published by Southern Bell Telephone and Telegraph Company for the Hollywood, Florida, area. The address in Cooper City listed as the business address for Checkmate International Detective Agency is the home of Mr. Mutnich and his employee, Cyndee Heyl.

3. Although Mr. Mutnich insists he did nothing to cause the erroneous listing and even spoke to some unidentified person at some unidentified time regarding the error, he presented no evidence to show any specific efforts on behalf of Respondent to correct the erroneous listing or to prevent the advertised telephone number from being provided to callers by Directory Assistance or to disconnect the telephone number after the listing first appeared. Additionally, no evidence was presented to show efforts made to either delete the advertisement from the following year's directory or to change or disconnect the telephone number. Respondent has further failed to present any testimony or documentation showing any definitive action to prevent this same "erroneous" listing from appearing in any editions of the telephone directory to be printed in the future.

   
   

4. In accordance with Petitioner's policy, the fine assessed against the Respondent in the amount of $100 is the amount normally levied by the Division for a first offense.

   
   

   CONCLUSIONS OF LAW

   
   

5. Sections 493.06(1) and 493.10(3), Florida Statutes (1979), establish the procedures for approval by the Petitioner of branch offices and further set forth the procedures which must be followed by a licensee in obtaining approval and licensing of a branch office. In the cause sub judice, Respondent was licensed to conduct business at one address only, and had not successfully obtained a branch office license. Nevertheless, the only listing carried for Respondent in the advertising section of the telephone directory under Respondent's business name is the home address of the Respondent's president and the Respondent's clerical employee. Clearly, this listing is in direct contravention of the prohibition contained in Section 1C-3.08(2), Florida Administrative Code, which states:

   
   

   Only the licensed address(es) of the licensee may be used in any advertisement or any manner of holding forth to the public as performing the type service permitted under his license. The use of any address other than the licensed address(es) is prohibited.

   
   

6. Respondent's argument that the telephone company is solely responsible for the erroneous listing and that there is nothing Respondent can do to make the telephone company correct its error if it refuses to do so is logically unimpressive. There is little risk that the telephone company, assuming it had erroneously initiated and carried a free advertisement, would continue to do so year after year. Furthermore, Respondent's failure to present any evidence to show any efforts made to obtain the cancellation of the "erroneous" listing can only indicate that the listing was and continues to be authorized by the Respondent. Although Respondent introduced into evidence certain billings from Southern Bell showing credit applied to the account of the questioned telephone number, no evidence was presented to indicate the reason for the credit. The bills themselves, accordingly, simply show a credit of some sort being applied in two different months on a very active telephone number, which number was billed to the Respondent's previous business address and which telephone number has now somehow "erroneously" appeared in the telephone directory along with an "erroneous" address as the only business listing for the Respondent herein.

7. Petitioner has presented substantial, competent evidence to show that the civil penalty assessed against the Respondent is proper and that the amount of penalty is appropriate.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT:

A final order be entered requiring Respondent to pay to the Petitioner the amount of $100 by a date certain.

RECOMMENDED this 26th day of June, 1980, in Tallahassee, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State

The Capitol

Tallahassee, Florida 32301

Mr. Steven T. Barnes, Chief Bureau of License Issuance Department of State

The Capitol

Tallahassee, Florida 32301

Mr. Thomas Mutnich Checkmate International

13 South East Sixth Street Fort Lauderdale, Florida

The Honorable George Firestone Secretary of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 80-000685

Orders for Case No: 80-000685