STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-7183

)

ABBAS BAGHERI-KOLAH, ) d/b/a LaMODA INTERNATIONAL ) MODELING AGENCY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on April 18, 1990, in Melbourne, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: E. Renee Alsobrook, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

For Respondent: Jack Perlmutter, Esquire

500-B North Harbor City Blvd.

P.O. Box 361293 Melbourne, FL 32936-1293

STATEMENT OF THE ISSUES

Whether Respondent's license as a talent agency in the State of Florida should be suspended, revoked, or otherwise disciplined for alleged violations of Chapter 468, Florida Statutes.

Whether Respondent violated Section 468.402(1) (s), Florida Statutes (1989), by soliciting business, either personally or through an agent or through any other person, through the use of fraud, deception, or otherwise; the use of misleading statements; or the exercise of intimidation or undue influence.

PRELIMINARY STATEMENT

On November 13, 1989, the Department filed an Administrative Complaint charging Respondent with a violation of Section 468.402, Florida Statutes. Respondent denied the allegations and filed an Election of Rights seeking a formal administrative hearing on December 13, 1989. This matter was referred to the Division of Administrative Hearings on December 27, 1989.

After discovery, the formal hearing was held on this matter. At the hearing, the Petitioner presented the testimony of three witnesses and offered seven exhibits in evidence. Respondent presented three witnesses, including himself, and offered seven exhibits in evidence. In addition, the Hearing Officer took official notice of Chapter 468, Part VII, Florida Statutes and Rule 21-19, Florida Administrative Code. The parties Stipulated to the following findings of fact, in lieu of offering various books of models contained in various international modeling agency publications: "Respondent had contact with foreign country talent agencies, through correspondence with them, prior to the initiation of the investigation by Mr. Dobbs and that he received some books from them." The transcript of the proceedings was received on May 9, 1990. The Petitioner delivered its proposed recommended order, which was filed with the Division of May 22, 1990. On June 11, 1990, Respondent filed his proposed recommended order and a motion to strike the Petitioner's proposed recommended order as not timely. Respondent's motion to strike is denied. By filing his proposed recommended order more than ten days after the filing of the transcript,

Respondent has waived the provisions of Rule 28-5.402, Florida Administrative Code, and cannot now complain because the other party may have done so also. Rule 22I-6.031. Florida Administrative Code. Each party's proposals have been carefully considered and are incorporated in this Recommended Order where appropriate. My specific rulings on each party's proposed findings of fact are set out in the appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times material to the Administrative Complaint, Respondent was a licensed talent agency in the State of Florida, license number TA 0000086.

   
   

2. Respondent is the owner and operator of La Moda International Modeling Agency, Inc.

   
   

3. Mr. Douglas Dobbs, (hereinafter: Dobbs), in April 1989, presented himself to Respondent's agency, in an undercover capacity for the publication "Florida Celebrity," to determine whether recent consumer complaints to the publication were valid. Dobbs and Patricia Ann Hardy, (hereinafter: Hardy) represented themselves as people new in the industry who were looking for modeling jobs.

   
   

4. During Respondent's interviews with Dobbs, Hardy was present on both occasions.

   
   

5. Respondent told Dobbs and Hardy that he, the Respondent, discovered Jared and Kolbie Boyle and that he sent the Boyle children to New York on loan to another agency.

   
   

   Respondent further stated that he was the Boyle children's agent for many jobs and booked Kolbie Boyle for the cover of "Vogue Enfants", a French magazine. As a result his agency earned about $35,000.00 from the publication of the photograph. The Respondent also indicated that the Boyle children were receiving residual income for past work.

6. The Respondent advised Dobbs and Hardy that the Boyle children were listed with La Moda, and the Respondent caused to be printed newspaper articles that represented that the Boyle children were listed by La Moda.

   
   

   The Respondent, or his employees, also represented in newspaper articles published regarding the Boyle children, that the children were going to model in Los Angeles and Germany.

   
   

7. Jared and Kolbie Boyle are the young children of Lori Boyle. In 1985, her daughter, Kolbie, took modelling classes at La Moda Modeling studio where she met Respondent.

   
   

   Thereafter, both children were taken to New York where they participated in several photography sessions. These sessions were arranged by the children's mother through the Rascal's agency and Kidds Etc., both of New York City.

   
   

8. In 1988, Kolbie Boyle appeared on the cover of

   
   

   Paris Vogue Enfants, a French magazine, for which Kolbie was paid $50-75. This booking was arranged by the mother through the Irene Marie Agency of Miami. No residual or other payments from Respondent or anyone else have been received as a result of this cover.

   
   

9. The Boyle children are not, and never have been, under contract as models with the Respondent or his agency. The only contract signed by Lori Boyle, on behalf of the children, was an enrollment agreement for modeling classes for Kolbie in 1985. Lori Kolbie did grant Respondent permission to use the photographic likenesses of her children for general promotional purposes. However, she did not grant permission for Respondent to indicate that the children were going to Los Angeles or Germany for modeling assignments.

   
   

10. Lori Boyle was contacted by Dobbs for verification of the

    information received by Dobbs and Hardy from the Respondent regarding the children.

    
    

11. The Respondent gave Dobbs and Hardy a "clientele list" of agencies that the Respondent claimed to do business with on a regular basis.

    
    

12. The "clientele list" actually contained the names of agencies that Respondent was trying to do business with. Respondent has stopped using the "clientele list" because people misunderstood its purpose.

    
    

13. Respondent has had contact with several foreign country agencies on the "clientele list" and received books from several agencies as well as correspondence regarding possible association with Respondent. The Respondent, however, has worked with one agency.

    
    

14. Respondent is a young man who is a resident alien from Iran and speaks with a distinct accent. During his testimony at the hearing, he had difficulty using correct tenses and phraseology in English.

    
    

15. The Respondent submitted his new paper work and/or handout, for new talent as mitigation evidence to demonstrate his intent to conform to state laws. The Respondent's new forms, however, do not include the words "Talent Agency" as required by law.

16. The Respondent also submitted his new contract as mitigation evidence to demonstrate the Respondent's desire to conform to state laws, however, the contract also does not include the words "Talent Agency" on the contract as required.

    
    

17. The Respondent has been previously disciplined in Case Nos. 85998 and 92871 by the Department.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

19. Petitioner has jurisdiction to prosecute this matter pursuant to Chapter 455 and Chapter 468, Part VII, Florida Statutes (1989).

    
    

20. Respondent, as a licensed talent agency in the State of Florida, at all times material hereto, is subject to Petitioner's jurisdiction pursuant to Chapter 468, Florida Statutes.

    
    

21. "Talent agency" is defined in Section 468.01(1), Florida Statutes (1989), in pertinent part, to meant "any person or corporation engaged in the occupation of operating an agency or other place for the purpose of procuring or attempting to procure engagements, or for the purpose of giving information as to where such engagements may be provided, for an artist who seeks employment by a buyer in . . . modeling services .

    
    

22. "Owner" means any partner in a partnership, member of a firm, or principal officer or officers of a corporation, whose partnership, firm, or corporation owns a talent agency, or any individual who is the sole owner of a talent agency. Section 468.401(2), Florida Statutes (1989).

    
    

23. "Engagement" means any engagement, employment, or placement of a person as a model in modeling services. Section 468.401(4), Florida Statutes (1989).

    
    

24. "Operator" means the person who is or who will be in actual charge of a talent agency. Section 468.401(6).

    
    

25. "Artist" means person rendering professional services in modeling. Section 468.401(8).

    
    

26. "License" means a license issued by the Department of Professional Regulation to carry on the business of a talent agency under this part. Section 468.401(10), Florida Statutes (1989).

    
    

27. The Department has the duty to issue and revoke licenses, as follows:

    
    

    1. The department may issue a license to a talent agency and may revoke a license, deny an application for a license, suspend the license for a reasonable period, or assess a civil penalty in an amount not to exceed the biennial license fee, when it is satisfied that the owner or operator of the license of

       applicant for a license, or any person on behalf of the owner or operator, has:

       * * *

       (s) Solicited business, either personally or through an agent or through any other person, through the use of fraud, deception, or otherwise; the use of misleading statements; or the exercise of intimidation or undue influence. Section 468.402, Florida Statutes (1989).

       
       

28. Section 468.412(6), Florida Statutes, reads as follows:

    
    

    (6) No talent agency may publish or cause to be published any false, fraudulent, or misleading information, representation, notice, or advertisement. All advertisements of a talent agency by means of card, circular, or signs, and in newspapers and other publications, and all letterheads, receipts, and blanks shall be printed and contain the licensed name, department license number and address of the talent agency and the words "talent agency". No talent agency may give false information or make any false promises or representations concerning an engagement or employment to any applicant who applies for an engagement or employment.

29. Rule 21-19.009, Florida Administrative Code, reads as follows: Upon proof of violation of the term of Part

    VII, Chapter 468, Florida Statutes the Department may impose fines, civil penalties and license suspensions or revocation. The following monetary fines are adopted but are not exclusive of any other remedy authorized to be sought by the Department:

    1. Failure to display license; a fine of up to $50;

    2. Any other violation of (Part VII, Chapter 468, Florida Statutes); a civil penalty in an amount not to exceed the biennial license fee up to $400.

       
       

30. Rule 21-19.010(4) (a), Florida Administrative Code reads as follows:

    
    

    1. Contract - Artist and Talent Agency;

       1. A contract is required to be executed between an artist and the talent agency when the artist and the talent agency agree to have said talent agency secure employment for the artist.

    
    

31. The Respondent made representations to Dobbs and Hardy that were not accurate. Specifically, the Respondent was not responsible for Kolbie Boyle's

    appearance on the cover of "Vogue Enfants". Although the Respondent had limited permission to use the children's photographs, his representations regarding the children led others to believe the children were listed as models with La Moda. This was not correct. The Respondent misled Dobbs and Hardy regarding the possible salary range for modeling for a magazine cover by stating that the agency received $35,000.00 for the job instead of $50.00 that Kolbie Boyle actually received, and Respondent's statement that they continue to receive residual income for that work. Additionally, the Respondent and/or his employee caused to be published, articles in the newspaper regarding arrangements for the Boyle children to work in Los Angeles and Germany which were not accurate. The Respondent stated he did business regularly with other talent agencies on his "clientele list", but in fact, only hoped to do business with those agencies.

    
    

32. The Respondent claims that Mr. Dobbs, Ms. Hardy and others misunderstand the Respondent, due to his accent; however, the Respondent's attempt to correct his handouts and contract demonstrate that the Respondent does not understand the requirements of Florida Statutes, Chapter 468, Part VII, and Rule 21-19, Florida Administrative Code, in that the Respondent's paper work is not in compliance with the laws and rules of the State of Florida.

    
    

33. Additionally, the Respondent's own testimony verifies that his handouts caused misunderstandings, as he termed it, with people other than Dobbs and Hardy.

    
    

34. The evidence clearly and convincingly demonstrates that Respondent uses misleading, if not fraudulent and deceptive statements, and advertisements to solicit business for La Moda in violation of Florida Statute 468.402(1)(s).

    
    

35. The Respondent has been disciplined on two prior occasions by the Department of Professional Regulation.

    
    

36. Chapter 468.402(1) and Rule 21-19.009, Florida Administrative Code, provide for the assessment of a civil penalty not to exceed

    $400.00, revocation and/or suspension of licensure for a violation of Chapter 468.402, Florida Statutes.

    
    

37. The Petitioner has clearly and convincingly demonstrated that the Respondent uses deception and/or misleading statements to sign talent at his agency. The Petitioner has clearly and convincingly demonstrated that the information provided by the Respondent to Mr. Dobbs was not truthful.

    
    

38. The Respondent is guilty of violating Chapter 468.402(1)(s), Florida Statutes, based upon his use of deceptive, fraudulent, and/or misleading statements in the solicitation of business for La Moda Modeling Agency and has twice been disciplined previously by the Petitioner.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED

That the Department of Professional Regulation impose a civil penalty of

$400.00 and suspend the Respondent's license to practice as a talent agency for four (4) months. It is further recommended that Respondent's license remain suspended until such time as the Respondent demonstrates that his

contract and handouts comply with Chapter 468.412(6), and Rule 21-19.010(2), and Rule 21-19.010(4)(b), Florida Administrative Code.

DONE AND ENTERED this 12th day of July, 1990, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1990.

APPENDIX

The following constitutes my specific rulings, as provided in Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings of Fact:

Accepted in substance: Paragraphs 1,2,3,4,5,6,7,8 (in part), 9,10,11,12,13 (in part: 2nd and 3rd sentences rejected as hearsay), 14.

Rejected as hearsay: paragraph 15. Respondent's Proposed Findings of Fact:

Accepted in substance: Paragraphs 1,2,3,15

Rejected as against the greater weight of the evidence or irrelevant or argument: 4,5,6,6(#2) ,7,8,10,11,12,13,14 16,17,18,19,20.

COPIES FURNISHED:

E. Renee Alsobrook, Esquire Department of Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792

Jack Perlmutter, Esquire

500-B North Harbor City Boulevard

1. Box 361293 Melbourne, FL 32936-1293

   Kenneth E. Easley, Esquire Department of Professional Regulation

   1940 North Monroe Street Tallahassee, FL 32399-0792

   
   

   Mildred Gardner, Executive Director Department of Professional Regulation

   1940 North Monroe Street Tallahassee, FL 32399-0792

   
   

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

   AGENCY FINAL ORDER

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

   
   

   STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

   TALENT AGENCY

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Petitioner,

   
   

   vs. DPR CASE NO. 89-3958

   DOAH CASE NO. 89-7183

   ABBAS BAGHERI-KOLAH LICENSE NO: TA 0000086 d/b/a LAMODA INTERNATIONAL

   MODELING AGENCY,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS MATTER, was considered by the Department of Professional Regulation, pursuant to Section 120, Florida Statutes. The Department considered the Recommended Order of the Hearing Officer, the exceptions filed by the Petitioner and the September 19, 1990, letter filed on behalf of the Respondent.

   
   

   The Petitioner was represented by E. Renee Alsobrook, Esquire. The Respondent was represented by Jack Perlmutter, Esquire.

   
   

   Upon consideration, it is ORDERED and ADJUDGED:

   
   

   1. The Respondent's exceptions number one (letter dated September 19, 1990) is denied as there was competent substantial evidence in the record to support the Hearing Officer's Findings of Fact and Conclusions of Law. The Respondent's exception is without merit.

   2. Respondent's exception number two (letter dated September 19, 1990) is denied; the failure of the Respondent's contracts to conform to the requirements of Florida Administrative Code Rule 21-19 and Section 468, Florida Statutes is an aggravating circumstance as to the-penalty in this cause.

      
      

   3. Petitioner's exceptions number one, to the Recommended Order, Findings of Fact number 17, is adopted and replaces the Findings of Fact number 17 in the Recommended Order as follows:

      
      

      Probable cause of violations of Chapter 468 and the rules promulgated pursuant thereto were previously found to exist in Cases 85998 and 92871. The Respondent was issued a Letter of Guidance in Case 85998 and the Respondent signed an agreement to Cease and Desist the unlicensed activity as a talent agency in Case 92871.

      
      

   4. Petitioner's exception number two to the Hearing Officer's Conclusion of Law paragraph number 18 is adopted. The Recommended Order shall reflect that the Petitioner has on two prior occasions had a finding of probable cause of violations, and, the Respondent was issued a Letter of Guidance in Case 85998 and agreed to Cease and Desist the unlicensed practice as a talent agency in Case 92871.

      
      

   5. Except for the Findings of Fact number 17 and Conclusions of Law number

      18 as set forth supra, the Recommended Order is adopted by the Department.

      
      

   6. The Respondent shall pay a civil penalty of $400.00 within thirty (30) days of the filing of this Final Order.

      
      

   7. The Respondent's license, TA 0000086, is suspended for four (4) months. The Respondent's license shall remain suspended until such time as the Respondent demonstrates that his contract and handouts comply with Chapter 468.412(6), Rule 21-19.010(4)(b), and Rule 21-19.010(2), Florida Administrative Code.

      
      

   8. This order shall be placed in and become a permanent part of Respondent's official record with the Department.

      
      

   9. This order becomes effective upon being filed with the Department's Clerk.

Any party who is substantially affected is hereby notified that they may appeal this Order, unless waived, by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation and by filing a filing fee and one copy of a Notice of Appeal with the District Court of Appeal within thirty (30) days of the date this order is filed.

DONE and ORDERED this 15th day of November, 1990.

Larry Gonzalez Secretary

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER has been forwarded by Certified U.S. Mail to Abbas Bagheri-Kolah c/o Jack Perlmutter, Esquire, 500-B N. Harbor City Boulevard, Melbourne, Florida

32935, and hand- delivered to E. Renee Alsobrook, Esquire, Department of Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399, this 16 day of November, 1990.

Mildred Gardner Executive Director Talent Agencies

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399

Docket for Case No: 89-007183

Orders for Case No: 89-007183