STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SIX-BITS FOOD STORES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-359

) DEPARTMENT OF STATE, DIVISION ) OF CORPORATIONS; SIX BITS FOOD ) SERVICE, INC.; and SIX BITS DELI ) INTERNATIONAL, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in Fort Lauderdale, Florida on July 21, 1981, before the undersigned Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Joseph Mannino, Esquire

Suite 480, Landmark Bank Building 4901 North Federal Highway

Fort Lauderdale, Florida 33308

For Respondent, W. J. Gladwin, Jr., Esquire Department of Department of State, The Capitol State: Tallahassee, Florida 32301

For Respondent, Joseph Sugarman, President, pro se Six Bits Food 4251 Northeast 16th Avenue Service, etc.: Oakland Park, Florida 33334

STATEMENT OF THE ISSUES

Whether the corporate names Six-Bits Food Stores, Inc., Six Bits Food Service, Inc., and Six Bits Deli International, Inc., are deceptively similar.

Whether the Department of State may withdraw approval for the use of names found deceptively similar to a name previously approved.

PRELIMINARY STATEMENT

Six-Bits Food Stores, Inc., incorporated in 1977, is a sandwich shop doing business in Pompano Beach, Florida. This flourishing business was sold by Joseph Sugarman to Christopher and Cheryl Ann Wyatt in 1980. Shortly thereafter, Mr. Sugarman formed two other corporations, Six Bits Food Service, Inc., and Six Bits Deli International, Inc., and again went into essentially the same type of food service business. The owners of Six-Bits Food Stores, Inc.,

as Petitioner, sought to have the Secretary of State prevent Respondents' incorporator, Sugarman, from using his subsequently acquired corporate names in the food service business. After unsuccessfully seeking cancellation from the Department of State, the owners of Petitioner Six-Bits Food Stores, Inc., requested an administrative hearing seeking to have the registered names of Respondents, Six Bits Food Service, Inc., and Six Bits Deli International, Inc., withdrawn. Petitioner, through its attorney, requested that the primary owner of the Respondent corporations, Joseph Sugarman, be notified of the time and place of hearing. Sugarman appeared and represented himself at the final hearing. Petitioner called one witness and submitted seven (7) exhibits which were entered as evidence.

The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders, which were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.

FINDINGS OF FACT

1. On February 3, 1977, Six-Bits Food Stores, Inc., was incorporated. On November 25, 1980, Six Bits Food Service, Inc., was incorporated. On December 2, 1980, Six Bits Deli International, Inc., was incorporated. Joseph Sugarman was the primary incorporator of each corporation.

   
   

2. On or about October 16, 1980, Six-Bits Food Stores, Inc., was sold to Christopher S. Wyatt and Cheryl Ann Wyatt pursuant to a written agreement (Petitioner's Exhibit 1). It was a stock purchase sale, and there was no reference in the agreement to good will or future competition by Sugarman. Sugarman stated at the hearing that at the time of the sale to the Wyatts his attorney, noting that the Wyatts were representing themselves, suggested that the Wyatts should be represented by counsel.

   
   

3. Subsequent to the sale the seller, Joseph Sugarman, established a sandwich shop under the corporate name Six Bits Food Service, Inc., approximately one and a half miles from the Petitioner sandwich shop. He then opened a second sandwich shop under the corporate name Six Bits Deli International, Inc., 7 to 10 miles from the Petitioner sandwich shop.

   
   

4. An examination of Petitioner's Exhibits 2, 3, and 4 shows that with little variation the three sandwich shops have the same type of fast food service. There was no dispute at the hearing that each shop catered to the same type of customer. A sign was located at Respondent's sandwich shop, Six Bits Food Service, Inc., with the wording, "Now selling our famous Six Bits cold cut hoagies." Customers at Petitioner Six-Bits Food Stores, Inc., sandwich shop have compared it with the Respondent's sandwich shop, Six Bits Food Service, Inc., thinking they are under the same ownership. Deliverymen often deliver merchandise to the wrong shop, and calls are received at both Respondent's sandwich shops intended for Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of this matter and the parties thereto pursuant to Section 120.57, Florida Statutes.

6. Section 607.024(1)(b), Florida Statutes (1979), provides in part:

   
   

   1. The corporate name:

      * * *

      (b) Shall not be the same as, or deceptively similar to, the name of any domestic corporation existing under the laws of this state or any foreign corporation authorized to transact business in this state, a name the exclusive right to which is, at the time, reserved in the manner provided in this act, or the name of a corporation which has in effect a registration of its corporate name as provided in this act, . . .

      
      

      Rule 10-1.04, Florida Administrative Code, provides:

      
      

      Corporate names are deceptively similar if on comparison of the names . . . there is an apparent difference, but the difference or differences are of such character that the names are likely to be confused by persons giving oral or written information to this office, or by persons in the Office of the Secretary of State who are attempting to enter into or retrieve from the records of this office corporate information, or by persons attempting to receive written or oral information from the Office of the Secretary of State, or by judicial or law enforcement officers, or by persons in the general public who are attempting to identify a corporation solely on the basis of written or oral communications concerning its name, or by consumers who could be easily confused by similar names. Confusion can exist even though one or both parties to an oral or written communication has information concerning only one of the names which might on comparison be found to be deceptively similar. Such names shall be rejected by the Division and not be filed.

      
      

7. It is concluded that under the foregoing statute and rule the corporate names Six Bits Food Service, Inc., and Six Bits Deli International, Inc., are deceptively similar to Six-Bits Food Stores, Inc. "Six Bits" is the easiest part of each name to remember and are the first words of each corporate name to be indexed. Members of the public patronizing or servicing these eating establishments remember the distinctive "Six Bits" designation, but few can remember the rest of the corporate name and thus are confused by the similarity of the names. The similar nature of the businesses and their proximity to each other is a source of confusion, as is the fact that the prior owner of Petitioner Six-Bits Food Stores, Inc., is now personally and actively engaged in the same type of business under the later approved corporate names and is competing for customers. Cf. Children's Bootery, et al. v. Sutker, 107 So. 345; Florida Hotel and Motel Association, Inc. v. Florida Hotel and Motor Hotel

   Association, Inc., and Secretary of state, 3 FALR, 283A (Florida Secretary of State Final Order; December 29, 1980); and Grove Towers, Inc. v. Towers in the Grove, Inc., and Department of State, 3 FALR 285A (Florida Secretary of State Final Order; January 15, 1981).

   
   

8. Section 607.371, Florida Statutes (1979), provides:

The department of state shall have the power and authority reasonably necessary to enable it to administer this chapter efficiently, to

perform the duties therein imposed upon it, . . .

The Department of State has the power under the foregoing statute to withdraw its approval of the names Six Bits Food Service, Inc., and Six Bits Deli International, Inc., in order to effectuate Section 607.024, supra. Cf. State Board of Education v. Nelson, 372 So.2d 114; and Grove Towers, Inc. v. Towers in the Grove, Inc., and Secretary of State, supra.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be entered finding that the corporate names Six Bits Food Service, Inc., and Six Bits Deli International, Inc., are deceptively similar to the previously registered corporate name Six-Bits Food Stores, Inc., and that approval for the use of those names be withdrawn.

DONE AND ENTERED this 23rd day of September 1981 in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September 1981.

COPIES FURNISHED:

Joseph Mannino, Esquire

Suite 480, Landmark Bank Building 4901 North Federal Highway

Fort Lauderdale, Florida 33308

Stephen Nall, Esquire

Office of the General Counsel Department of State

The Capitol

Tallahassee, Florida 32301

Joseph Sugarman, President

Six Bits Food Service, Inc., and Six Bits Deli International, Inc. 4251 NE 16th Avenue

Oakland Park, Florida 33334

Docket for Case No: 81-000359

Orders for Case No: 81-000359