STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NOS. 90-4799

) 90-5328

JANE DANIELS, d/b/a )

1. NORRIS CO., INC., )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, a formal hearing was conducted in this case before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The hearing was held in Miami and in Fort Lauderdale on the following days: January 16 and 17, 1991, April 29 and 30, 1991, May 2

   and 3, 1991, and September 23 and 24, 1991. The parties were represented at the hearing as follows:

   
   

   APPEARANCES

   
   

   For Petitioner: Michael A. Mone', Esquire

   Albert Peacock, Esquire

   Department of Professional Regulation Northwood Centre Suite 60

   1940 North Monroe Street Tallahassee, Florida 32399-0792

   
   

   For Respondent: Gregory F. Esposito, Esquire

   8000 Wiles Road Suite 9 Coral Springs, Florida 33065

   
   

   STATEMENT OF THE ISSUES

   
   

   This is a license discipline case in which the Respondent has been charged by Administrative Complaint with numerous violations of Part VII of Chapter 468, Florida Statutes (1989), which are the statutory provisions regulating the talent agency business.

   
   

   PRELIMINARY STATEMENT

   
   

   At the formal hearing in this case both parties presented the testimony of numerous witnesses and offered numerous exhibits. At the conclusion of the hearing the parties requested and were allowed 45 days from the filing of the transcript within which to file their proposed recommended orders. The final portion of the transcript of the hearing was filed with the Hearing Officer on October 24, 1991. Due to various complications, the deadline for the parties' proposed recommended orders was extended several times and was finally

   established as February 17, 1992. The Petitioner filed its proposed recommended order on February 17, 1992. The Respondent filed her proposed recommended order on February 19, 1992. The parties' proposed recommended orders have been carefully considered during the preparation of this Recommended Order. The proposed findings of fact submitted by the parties are specifically addressed in the Appendix to this Recommended Order.

   
   

   On February 17, 1992, the Petitioner filed a motion to strike certain of the Respondent's exhibits. On February 20, 1992, the Petitioner filed a motion to strike the Respondent's proposed recommended order. The motion to strike certain of the Respondent's exhibits is granted to the following extent; the Respondent's exhibit number 33 is hereby stricken from the record. The motion to strike the Respondent's proposed recommended order is denied.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material hereto, Respondent has been licensed as a talent agency in the State of Florida, having been issued license number TA 0000015. Respondent's last known address is 2803 East Commercial Boulevard, Suite #204, Fort Lauderdale, Florida 33308.

      
      

   2. At all times material hereto, Respondent has been married to Bill Daniels, a photographer, whose office is in the same building as the Respondent's agency.

      
      

   3. The Respondent and Bill Daniels share living quarters, expenses, profits from each other's incomes, and a joint personal checking account.

      
      

   4. At all times material hereto, Art Feldman (who is also sometimes known as "Art Field"), under the Respondent's direction, regularly spoke to, interviewed, and took money from artists who sought work through T.J. Norris Co., Inc.

      
      

   5. At all times material hereto, the Respondent and Art Feldman recommended only Bill Daniels as a photographer to the artists seeking to register with the Respondent.

      
      

   6. At all times material hereto, the Respondent, as well as Art Feldman and Ed Russell (who was another of Respondent's employees), were authorized by Bill Daniels to collect funds from and issue receipts to talent registered with the Respondent for photographic services and to obtain Bill Daniels picture releases from talent. The Bill Daniels receipts reflected that the Respondent "does not guarantee work or casting."

      
      

   7. At all times material hereto, Bill Daniels, at no charge to the Respondent, would make up photos from proofs of talent registered with the Respondent, a service Mr. Daniels did not provide to other talent agencies.

      
      

   8. Bill Daniels gave the Respondent the photography negatives of talent registered with Respondent.

      
      

      Facts regarding Counts One, Two, and Three -- Laurie Wells

      
      

   9. On or about February 2, 1988, Laurie Wells, after seeing Respondent's advertisement, took her daughter, Jena, to the Respondent's agency for the purpose of procuring modeling and/or acting work for her daughter, who was three years old at the time.

   10. The Respondent and Art Feldman told Ms. Wells that Jena would be perfect for an upcoming television series starring Zsa Zsa Gabor. The Respondent and Art Feldman both told Ms. Wells that she would not be able to use her own photographs of Jena, but would need to have a portfolio of photographs taken by Bill Daniels before Jena could be submitted for consideration for a role in the television series. Ms. Wells paid Mr. Feldman three hundred twenty- five dollars to register her daughter with the agency and to have photographs taken by Bill Daniels. Nevertheless, Jena was never called for casting for the television series and Jena never received any work through Respondent's agency.

       
       

   11. Ms. Wells never received a copy of the contract she signed with the Respondent's agency. At the time she was dealing with the Respondent's agency, Ms. Wells was a beginner in the talent industry.

       
       

   12. The photographs that Ms. Wells brought with her to her first meeting with the Respondent and Mr. Feldman were current photographs of Jena. The photographs that Ms. Wells brought with her to that first meeting were later used by other talent agencies from which Jena obtained work.

       
       

   13. Even though the Respondent and Mr. Feldman never guaranteed any work for Jena, they both made statements implying that there was lots of work available and that Jena would be perfect for some of that work.

       
       

       Facts regarding Counts Four, Five, and Six -- Donna Thomas

       
       

   14. On or about March 29, 1988, Donna Thomas, as a result of one of Respondent's advertisements, took her four-year-old granddaughter, Tami, to Respondent's agency to procure modeling work for Tami.

       
       

   15. Ms. Thomas spoke with both Art Feldman and with the Respondent. The Respondent told Ms. Thomas that her granddaughter was one of the most beautiful little girls they had had in the agency for a long time. The Respondent went on to state that she could definitely get Tami all kinds of work, but before they could do so Tami would have to have some pictures made. The Respondent also suggested that the pictures should be made as soon as possible. It was suggested to Ms. Thomas that she should have the photographs done by Bill Daniels. Ms. Thomas was not told of any other options for obtaining photographs.

       
       

   16. Ms. Thomas paid the Respondent two hundred fifty-five dollars to register Tami with the agency and to have photographs of Tami taken by Bill Daniels. The Respondent's agency never procured any work for Tami; the agency never even called about any work opportunities for Tami. At the time of her dealings with the Respondent's agency, Ms. Thomas was a beginner or novice to the talent industry.

       
       

   17. The evidence in this case is unclear as to whether the Respondent did or did not provide a copy of a contact to Ms. Thomas or to Tami's parents.

       
       

       Facts regarding Counts Sixteen, Seventeen, and Eighteen--Mr. and Mrs. Waldron

       
       

   18. On or about April 21, 1988, Mrs. Waldron, after seeing one of the Respondent's advertisements, took her son Richard to the Respondent to procure work for him in modeling or acting. Art Feldman told Mrs. Waldron that her son Richard was absolutely beautiful and was exactly what the agency was looking

       for. Feldman went on to say that he received calls every day from people who are looking for children just like Richard for movies, commercials, catalogs, and newspaper ads.

       
       

   19. Mr. Feldman went on to say that photographs had to be taken before the agency could do any work for Richard; that without a portfolio there was absolutely nothing the agency could do for Richard. Feldman urged Mrs. Waldron to use Bill Daniels for the photographs and described Bill Daniels as a "resident photographer" who did all of the agency's portfolios and who could get the photos done faster than other photographers.

       
       

   20. Mrs. Waldron signed a contract with the Respondent's agency and paid the Respondent three hundred fifty-five dollars to register Richard with the agency and have Richard's photographs taken by Bill Daniels. Mrs. Waldron never received a copy of the contract she signed with the Respondent.

       
       

   21. Richard did not procure work through the Respondent for over a year. When contacted about the lack of work, Art Feldman insisted that updated photographs be taken. When Mrs. Waldron refused new photographs until Richard obtained work, Richard was suddenly called for work as an extra on a movie called "Chains of Gold." Subsequently, Mrs. Waldron asked about other work for Richard, but Art Feldman said it was unavailable until more photographs were taken.

       
       

   22. At the time of her dealings with the Respondent, Mrs. Waldron was a beginner to the talent industry.

       
       

       Facts regarding Counts Twenty-two, Twenty-three, and Twenty-four--Marie Strong

       
       

   23. On or about July 11, 1988, Mrs. Marie Strong took her six-month-old son, Caleb, to Respondent's agency for the purpose of procuring work for Caleb in modeling and/or acting.

       
       

   24. Mrs. Strong met with Art Feldman who told her he could obtain work right away for Caleb, because there were several catalogs coming out within the next week or two that needed children Caleb's age. Feldman also told her that in order to do that she needed to get a professional portfolio taken right away by the agency's photographer, Bill Daniels. Feldman urged Mrs. Strong to pay a deposit on the photographs that very day and dissuaded her from taking time to discuss the matter with her husband.

       
       

   25. Mrs. Strong paid a deposit in the amount of one hundred thirty dollars the first day and returned the next day with the balance of one hundred ninety- five dollars. The photographs of her son Caleb were taken that day by Bill Daniels. Mrs. Strong was not told of any options to have the photographs taken by some other photographer.

       
       

   26. The Respondent's agency never procured any work for Mrs. Strong's son. The Respondent's agency never provided Mrs. Strong with a copy of a contract.

       At the time of their dealings with the Respondent, Mrs. Strong and her son were novices or beginners to the talent industry.

       
       

       Facts regarding Counts Twenty-five, Twenty-six, and Twenty-seven--Kory Bielski

       
       

   27. On or about September 8, 1988, after seeing Respondent's advertisement and calling for an appointment, Kory Bielski went to Respondent's agency for the purpose of procuring modeling and/or acting work.

   28. Mr. Bielski met with Art Feldman. Mr. Feldman told Mr. Bielski there was a lot of work he might be good for and that he wanted Mr. Bielski to sign up with the agency and get started. However, Mr. Feldman told Mr. Bielski that he had to have photographs taken before they would do anything. Mr. Feldman told Mr. Bielski that the agency had a photographer it worked with, and referred him to Bill Daniels. Mr. Feldman did not mention that Mr. Bielski could go to another photographer.

       
       

   29. Mr. Bielski paid Mr. Feldman a total of $425.00 to pay for the agency's registration fee and for photographs to be taken by Bill Daniels. The only work Mr. Bielski received through the Respondent's agency was two days of work as an extra in a movie. Mr. Bielski signed a contract with the Respondent's agency, but he was never given a copy of the contract.

       
       

       Facts regarding Counts Twenty-eight, Twenty-nine, and Thirty--Brian Cossack

       
       

   30. On or about October 14, 1988, in response to a newspaper advertisement, Brian Cossack went to Respondent's agency for the purpose of procuring voice-over work. Mr. Cossack met first with Art Feldman. Even though Mr. Cossack's primary interest was in obtaining voice-over work (in which the physical appearance of the artist is irrelevant), Mr. Feldman told him he would be perfect for a role in an upcoming horror film and that he would also be given TV commercial work. When Mr. Cossack said he had very little on-camera experience and did not feel prepared to take on a role of that type, Mr. Feldman continued to insist that he would be a shoe-in for the role. Mr. Feldman called the Respondent into the room and the Respondent also expressed assurances that Mr. Cossack would be perfect for movie and TV work.

       
       

   31. The Respondent went on to say that she would pay half of the cost of Mr. Cossack's photography session. After mentioning that he was relying on their assurances, Mr. Cossack paid $30.00 to register with the Respondent's agency and agreed to pay $300.00 for photographs to be taken by the photographer recommended by the Respondent. Mr. Cossack paid $100.00 towards the photographs on the first day. A few headshots were taken that day. A few days later, Mr. Cossack returned, paid the $200.00 balance, and some more photographs were taken. Mr. Cossack never received any of the photographs. Mr. Cossack gave both checks for the photographs to Mr. Feldman.

       
       

   32. The only work Mr. Cossack obtained through the Respondent's agency was work as an extra in a movie. He worked one day as an extra and declined an opportunity to work a second day as an extra. There is no clear and convincing evidence that the Respondent's agency failed to provide Mr. Cossack with a copy of a contract.

       
       

       Facts regarding Counts Thirty-three and Thirty-four--Chaim Kohl

       
       

   33. On or about December 28, 1988, Chaim Kohl took his four-year-old son, Roy, to Respondent's agency for the purpose of procuring modeling work for Roy. At that time Mr. Kohl was a beginner to the talent industry. Mr. Kohl met with Art Feldman and told Mr. Feldman that he wanted the agency to teach his son how to be a model and to obtain work for his son as a model.

   34. Mr. Feldman told Mr. Kohl that Mr. Kohl would have to have photographs of his son taken by Bill Daniels if he wanted the Respondent's agency to represent him. Mr. Feldman also said that as soon as the photographs were ready there would be lots of castings because the agency had lots of work with huge clients.

       
       

   35. Mr. Kohl agreed to have the photographs taken and ultimately paid

       $30.00 to register his son with the Respondent's agency and $300.00 for the photography session with Bill Daniels. Mr. Kohl's son never received any work through the Respondent's agency; he was never even called for any castings.

       
       

       Facts regarding Counts Thirty-five and Thirty-six--Harriet and Jim Nabors

       
       

   36. During February of 1989, Jim and Harriet Nabors went to Respondent's agency for the purpose of procuring modeling and/or acting work. At that time Mr. and Mrs. Nabors were both beginners to the talent industry. They went to Respondent's agency more or less on a lark, in response to one of the Respondent's newspaper advertisements.

       
       

   37. Mr. and Mrs. Nabors met with Art Feldman. Mr. Feldman told them that before any work could be sought for them, they would have to have photographs taken by Bill Daniels, who he described as being the agency photographer. No other photographic options were given.

       
       

   38. Mr. and Mrs. Nabors paid $30.00 each to register with Respondent's agency. Mrs. Nabors paid an additional $395.00 for photographs. Mr. Nabors paid $410.00 for photographs and $300.00 for four acting lessons. All of the checks were delivered to Mr. Feldman. Neither Mr. Nabors nor Mrs. Nabors received any work through the Respondent's agency. They received very few calls advising them of work opportunities. When Mrs. Nabors called about opportunities, she was told that business was slow.

       
       

       Facts regarding Counts Thirty-nine and Forty--Michelle Barton

       
       

   39. On or about September 7, 1989, Michelle Barton took her son, Nicholas, to Respondent's agency for the purpose of procuring modeling work for Nicholas. At that time Nicholas was almost a year old and Ms. Barton was a beginner to the talent industry.

       
       

   40. Ms. Barton met with Art Feldman and told him she wanted to obtain modeling work for her son. The son had red hair. Mr. Feldman said there was a big need for children with red hair and specifically mentioned that there would be casting opportunities during the next month. Mr. Feldman also told Ms. Barton that she would have to have a portfolio of photographs of Nicholas taken by Bill Daniels, who was described to her as the agency photographer or as a photographer affiliated with the Respondent's agency. She was not told of any other photographic options.

       
       

   41. Ms. Barton paid $30.00 to register her son with the Respondent's agency and paid $295.00 to have photographs taken by Bill Daniels. She later paid an additional $25.00 to obtain two extra photographic prints. Ms. Barton delivered all of the checks to Mr. Feldman.

       
       

   42. Ms. Barton never received any work for her son through the Respondent's agency.

   43. Ms. Barton later registered her son with another agency. The only photographs she sent to that agency were snap shots. The second agency called her on several casting opportunities.

       
       

       Facts regarding Count Forty-one--Marilyn Moore

       
       

   44. On or about March 21, 1990, after seeing the Respondent's advertisement in the telephone book, Marilyn Moore took her thirteen-month-old daughter, Jaime, to Respondent's agency for the purpose of procuring modeling work for Jaime. At that time Ms. Moore was a beginner to the talent industry.

       
       

   45. Ms. Moore met with Art Feldman and told him she wanted to obtain modeling work for her daughter. She had with her a small color photograph of the child that had been taken approximately a month earlier by Olan Mills. Mr. Feldman told Ms. Moore that he definitely thought her daughter had potential as a model, but that first she would have to be registered with the agency and they would need more photographs of the child. Mr. Feldman also told her that he had a photographer who could take the photographs.

       
       

   46. Ms. Moore asked if they could use the photographer she already had, and Mr. Feldman replied that the agency really needed eight-by-ten black and white photographs and that the agency photographer was in the next room and could do the photographs right then and there for a fee. Ms. Moore asked Mr. Feldman if she could use another photographer and Mr. Feldman replied that it was best to use the agency's photographer because they had worked together before and the agency photographer knew exactly what they needed.

       
       

   47. Ms. Moore registered her daughter with the Respondent's agency and wrote a $30.00 check to pay the registration fee. She left the payee's name blank on the check and delivered the check to Mr. Feldman. Someone later stamped the check with the name Bill Daniels as payee. Ms. Moore did not agree to have the agency's photographer take any photographs of her child and she declined the request that she make another appointment with the Respondent's agency.

       
       

   48. Later that same day, Ms. Moore stopped payment on the $30.00 check she had delivered to Mr. Feldman. A couple of days later, before he knew that payment had been stopped on the check, Mr. Feldman called Ms. Moore on the telephone and told her she could use her own photographs.

       
       

       Facts regarding Counts Forty-two, Forty-three, and Forty-four--Sonia Watson

       
       

   49. On or about December 7, 1988, after seeing the Respondent's advertisement in a newspaper, Sonia Watson took her eight-month-old daughter, Jessica, to Respondent's agency for the purpose of procuring modeling work. At that time Mrs. Watson and her infant daughter were beginners to the talent industry. Because she was a beginner, Mrs. Watson went to the Respondent's agency primarily for the purpose of obtaining information.

       
       

   50. Mrs. Watson met with Art Feldman. Mr. Feldman was very encouraging about the modeling prospects for Mrs. Watson's child and he told Mrs. Watson the agency would have no problem finding jobs for her daughter and that Mrs. Watson should not worry about the money for the agency's service or for the photographs because she would be able to make it back easily. Mr. Feldman told Mrs. Watson she would have to pay a $30.00 registration fee, a $15.00 fee for a "portfolio" photograph, and a $300.00 fee for photographs and for hiring the agency to find jobs for her daughter.

   51. During the first visit Mrs. Watson paid the $30.00 registration fee and the $15.00 "portfolio" fee. She later made an appointment to have the photographs taken and paid half of the money for the photographs. Thereafter, half of the photographs were taken by Bill Daniels, who was described by Mr. Feldman as "our photographer." About two months later, Mrs. Watson returned and paid the remaining half of the money for the photographs and Bill Daniels took the other half of the photographs. Mrs. Watson paid all of the money to Mr. Feldman. Mrs. Watson was supposed to receive five 8 x 10 photographs of her child. The photographs were never provided to her.

       
       

   52. Mrs. Watson signed a contract after she paid all of the money. She did not receive a copy of the contract she signed.

       
       

   53. Before agreeing to have Bill Daniels take her child's photographs, Mrs. Watson had found a photographer who would do a photographic "portfolio" of her daughter for $90.00 or $95.00. When she told Mr. Feldman about that possibility, Mr. Feldman advised against it and told her she should use the agency's photographer because the photographer knew the companies the agency dealt with, knew the positions and things the companies were looking for, and, also, that the $300.00 fee included hiring him as her agent.

       
       

   54. Mrs. Watson's child never received any work through the Respondent's agency.

       
       

       Facts regarding Counts Fifty and Fifty-one--Mr. and Mrs. Trent

       
       

   55. On or about August 12, 1989, after seeing the Respondent's advertisement in a newspaper, Mr. V. G. Trent took his two daughters, Gayle and Shirene, to Respondent's agency for the purpose of procuring modeling work for Gayle and Shirene. At that time, Mr. Trent and his two daughters were all beginners to the talent industry.

       
       

   56. The Trents met with Art Feldman. Mr. Feldman said that, because of their tall and exotic looks, the two girls would be working in no time. Mr. Feldman told them that they would need photographs and that the agency would take the photographs for them. Mr. Trent was not advised of any other options regarding the photographs. Mr. Feldman told Mr. Trent it would be in the best interest of the girls for the agency to take the photographs because the agency would be representing the girls and the agency would know what pictures to select.

       
       

   57. Mr. Trent agreed to Mr. Feldman's suggestions regarding the photographs and agreed to pay $760.00 to have both girls registered with the Respondent's agency and to have both girls photographed by Bill Daniels. The registration was $30.00 for each girl and the photography was $350.00 for each girl. During the first visit Mr. Trent paid a down payment towards the $760.00 and the balance was paid by his wife during a subsequent visit. Neither of Mr. Trent's daughters ever received any work through the Respondent's agency.

       
       

       Facts regarding Counts Fifty-four and Fifty-five--Helena Jackson

       
       

   58. On or about February 25, 1988, Helena Jackson, also known as Helena Steiner-Hornsteyn, and her teenage daughter, Annika, went to Respondent's agency for the purpose of procuring modeling and/or acting work for Annika. Following conversations with Art Feldman and the Respondent, Mrs. Jackson and her daughter ultimately paid to register with the Respondent's agency and to have photographs

       taken by Bill Daniels. There is no clear and convincing evidence as to what representations were made to Mrs. Jackson and her daughter by Mr. Feldman or the Respondent.

       
       

       Facts regarding photography needs of beginners

       
       

   59. In the opinion of experts in the talent agency business, beginning talent should spend as little as possible for photographs until they learn more about the business, decide whether they like the business, or begin to receive regular bookings. In the case of infants and children up to the age of about 10 or 12 years of age, it is sufficient for beginning talent to use snapshots that have been enlarged up to about 5 x 7 inches. An adequate supply of such enlargements can be obtained for approximately $40.00. Everyone in the talent industry is aware of the fact that babies and young children change in appearance quite rapidly and they are not expected to submit professional photographs for castings.

       
       

   60. In the opinion of experts in the talent agency business, it is sufficient for beginning talent to limit their photography expense to obtaining an 8 x 10 glossy headshot. As one expert explained, ". . . to go beyond an 8 x

       10 glossy headshot, to me, is ridiculous. And, I think is a waste of money." A photo session limited to headshots is available from Bill Daniels for $125.00 and is available for less from other photographers in the area of the Respondent's agency.

       
       

   61. In the opinion of experts in the talent agency business, inexperienced talent are very susceptible to suggestions made by talent agents and have a tendency to follow agents' suggestions due to their inexperience. Because of this tendency, it constitutes undue influence for a talent agent to recommend a specific photographer to a beginning talent without also advising the talent that there are other less expensive alternatives available.

       
       

       Allegations on which no evidence was submitted

       
       

   62. In DOAH Case No. 90-5328 there is no competent substantial evidence of the Respondent's conduct alleged in either Count One or Count Two, both concerning Elizabeth Kingsley.

       
       

   63. In DOAH Case No. 90-4799 there is no competent substantial evidence of the facts alleged in any of the following counts:

       
       

       Count Seven, concerning Sarah (Tina) Polansky Count Eight, concerning Sarah (Tina) Polansky Count Nine, concerning Sarah (Tina) Polansky Count Ten, concerning Tracy Wilson

       Count Eleven, concerning Tracy Wilson Count Twelve, concerning Tracy Wilson Count Thirteen, concerning Michael Pry Count Fourteen, concerning Michael Pry Count Fifteen, concerning Michael Pry Count Nineteen, concerning Julie Lane Count Twenty, concerning Julie Lane Count Twenty-one, concerning Julie Lane

       Count Thirty-one, concerning Michelle Morrill Count Thirty-two, concerning Michelle Morrill Count Thirty-seven, concerning Kathryn Bischoff

       Count Thirty-eight, concerning Kathryn Bischoff

       Count Forty-five, concerning Marilyn Abbey Count Forty-six, concerning Marilyn Abbey Count Forty-seven, concerning Gary Janis Count Forty-eight, concerning Gary Janis Count Forty-nine, concerning Carol Mulchay Count Fifty-two, concerning August Yamond Count Fifty-three, concerning August Yamond Count Fifty-six, concerning Marie Tortu Count Fifty-seven, concerning Marie Tortu Count Fifty-eight, concerning Ilandie Joseph Count Fifty-nine, concerning Marcia Burke Count Sixty, concerning Marcia Burke

       
       

   64. The Respondent has prior violations of Chapter 468, Florida Statutes. In DPR Case Number 102652, the Respondent entered a Settlement Stipulation agreeing to pay a fine in the amount of two hundred dollars for a violation of Section 468.412(6), Florida Statutes (1988), regarding advertising by a talent agency. In DPR Case Numbers 0110491 and 0106073, DOAH Case Number 89-5521, the Respondent was found to have violated Section 468.410(3), Florida Statutes, on three (3) counts and Section 468.402(1)(t), Florida Statues, on two (2) counts. The Respondent was ordered to pay a fine in the amount of two thousand dollars.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   66. In a license discipline proceeding of this nature the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris

       v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

       
       

       We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

       
       

       See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the above- quoted language from Slomowitz. The Smith case also includes the following at page 958:

       
       

       "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used

       in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

       
       

   67. Section 468.402, Florida Statutes (1989), reads as follows, in pertinent part:

       
       

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

          * * *

          (b) Violated any provision of this part or any rule of the department.

          * * *

          1. 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.

          2. Exercised undue influence on the artist in such a manner as to exploit the artist for financial gain of the licensee or a third party, which includes, but is not limited to, the promoting or selling of services to the artist.

          
          

   68. Section 468.410(3), Florida Statutes (1989), reads as follows:

       
       

       (3) A talent agency shall give each applicant a copy of a contract which lists the services to be provided and the fees to be charged.

       The contract shall state that the talent agency is regulated by the department and shall list the address and telephone number of the department.

       
       

   69. Section 468.412, Florida Statutes (1989), reads as follows, in pertinent part:

       
       

       1. A talent agency shall maintain a record sheet for each booking. This shall be the only required record of placement and shall be kept for a period of 1 year after the date of the last entry in the buyer's file.

       2. Each talent agency shall keep records in which shall be entered:

          1. The name and address of each artist employing such talent agency;

          2. The amount of fees received from each such artist;

          3. The employment in which each such artist is engaged at the time of employing such talent agency and the amount of compensation of the artist in such employment, if any, and the employments subsequently secured by such artist during the term of the contract between the artist and the talent agency and the amount of compensation received by the artist pursuant thereto; and

          4. Other information which the department may require from time to time.

       3. All books, records, and other papers kept pursuant to this act by any talent agency shall be open at all reasonable hours to the inspection of the department and its agents. Each talent agency shall furnish to the department, upon request, a true copy of such books, records, and papers, or any portion thereof, and shall make such reports as the department may prescribe from time to time.

          * * *

          (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, circulars, 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 any false information or make any false promises or representations concerning an engagement or employment to any applicant who applies for an engagement or employment.

          * * *

          1. No talent agency may divide fees with anyone, including, but not limited to, an agent or other employee of an employer, buyer, a casting director, producer, or a director.

          2. If a talent agency collects from an artist a fee or expenses for obtaining employment for the artist, and the artist fails to procure such employment, or the artist fails to be paid for such employment if procured, such talent agency shall, upon demand therefor, repay to the artist the fee and expenses so collected. Unless repayment thereof is made within 48 hours after demand therefor, the talent agency shall pay to the artist an additional sum equal to the amount of the fee.

   70. Section 468.402, Florida Statutes (1989), authorizes the Department to adopt rules regulating the business of talent agencies. The rules adopted by the Department include rule 21-19.010(4), Florida Administrative Code, which reads as follows:

       
       

       (4) 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. Should the circumstances of the arrangement between the artist and agency prevent a contract to be executed prior to the first engagement, the artist and the talent agency have seven (7) days after the commencement of the first engagement in which to execute said contract.

       2. All contracts between an agency and the artist are to contain words similar to the following: (name of agency and license number) is regulated by

       the Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32399-0750. Telephone number (904) 488-0041.

       
       

   71. In the Administrative Complaint in Case No. 90-4799, the Respondent has been charged in Count Fifty-four with violation of Section 486.402(1)(s), Florida Statutes (1989). The evidence is insufficient to establish the violation charged in this count. Therefore, Count Fifty-four of the Administrative Complaint in Case No. 90-4799 should be dismissed.

       
       

   72. In the Administrative Complaint in Case No. 90-4799, the Respondent has been charged in Counts One, Four, Sixteen, Twenty-two, Twenty-five, Twenty- eight, Thirty-three, Thirty-five, Thirty-nine, Forty-one, Forty-two, and Fifty, with violations of Section 486.402(1)(s), Florida Statutes (1989). There is clear and convincing evidence to establish the violations alleged in each of these counts. The conduct of the Respondent and of Mr. Feldman, who was acting on her behalf and at her direction, in misleading beginning talent regarding the possibilities of obtaining work, in misleading beginning talent with regard to the nature of the photographs they would need, and in misleading beginning talent regarding where they could obtain photographic services, constitutes the solicitation of business through the use of deception, through the use of misleading statements, and through the exercise of undue influence within the meaning of Section 468.402(1)(s), Florida Statutes (1989). Accordingly, the Respondent should be found guilty of the violations alleged in Counts One, Four, Sixteen, Twenty-two, Twenty-five, Twenty-eight, Thirty-three, Thirty-five, Thirty-nine, Forty-one, Forty-two, and Fifty, of the Administrative Complaint in Case No. 90-4799.

       
       

   73. In the Administrative Complaint in Case No. 90-4799, the Respondent has been charged in Count Fifty-five with violation of Section 486.402(1)(t), Florida Statutes (1989). The evidence is insufficient to establish the violation charged in this count. Therefore, Count Fifty-five of the Administrative Complaint in Case No. 90-4799 should be dismissed.

   74. In the Administrative Complaint in Case No. 90-4799, the Respondent has been charged in Counts Two, Five, Seventeen, Twenty-three, Twenty-six, Twenty-nine, Thirty-four, Thirty-six, Forty, Forty-three, and Fifty-one, with violations of Section 486.402(1)(t), Florida Statutes (1989). There is clear and convincing evidence to establish the violations alleged in each of these counts. The conduct of the Respondent and of Mr. Feldman, who was acting on her behalf and at her direction, in misleading beginning talent regarding the possibilities of obtaining work, in misleading beginning talent with regard to the nature of the photographs they would need, in misleading beginning talent regarding where they could obtain photographic services, in inducing beginning talent to enter into contracts to purchase photographic services from Bill Daniels, and in collecting payment for such photographic services, constitutes the exercise of undue influence on the artists in such a manner as to exploit the artist for financial gain of the licensee or a third party within the meaning of Section 468.402(1)(t), Florida Statutes (1989). Accordingly, the Respondent should be found guilty of the violations alleged in Counts Two, Five, Seventeen, Twenty-three, Twenty-six, Twenty-nine, Thirty-four, Thirty-six, Forty, Forty-three, and Fifty-one, of the Administrative Complaint in Case No. 90-4799.

       
       

   75. In the Administrative Complaint in Case No. 90-4799, the Respondent has been charged in Counts Six and Thirty with violations of Section 486.402(1)(b), Florida Statutes (1989), by reason of having failed to comply with Section 468.410(3), Florida Statutes (1989). The evidence is insufficient to establish the violations charged in these two counts. Therefore, Counts Six and Thirty of the Administrative Complaint in Case No. 90-4799 should be dismissed.

       
       

   76. In the Administrative Complaint in Case No. 90-4799, the Respondent has been charged in Counts Three, Eighteen, Twenty-four, Twenty-seven, and

       Forty-four with violations of Section 486.402(1)(b), Florida Statutes (1989), by reason of having failed to comply with Section 468.410(3), Florida Statutes (1989). There is clear and convincing evidence to establish the violations alleged in each of these counts. The failure of the Respondent or of Mr.

       Feldman to provide copies of the contracts they entered into with talent is a clear violation of the requirements of Section 468.410(3), Florida Statues (1989), and is, therefore, a violation of Section 468.402(1)(b), Florida Statutes (1989), as charged in these counts. Accordingly, the Respondent should be found guilty of the violations alleged in Counts Three, Eighteen, Twenty- four, Twenty-seven, and Forty-four of the Administrative Complaint in Case No.

       90-4799.

       
       

   77. The following counts of the Administrative Complaint in Case No. 90- 4799 should be dismissed because there was no evidence offered in support of the allegations in any of the following counts:

       
       

       Count Seven, concerning Sarah (Tina) Polansky Count Eight, concerning Sarah (Tina) Polansky Count Nine, concerning Sarah (Tina) Polansky Count Ten, concerning Tracy Wilson

       Count Eleven, concerning Tracy Wilson Count Twelve, concerning Tracy Wilson Count Thirteen, concerning Michael Pry Count Fourteen, concerning Michael Pry Count Fifteen, concerning Michael Pry Count Nineteen, concerning Julie Lane Count Twenty, concerning Julie Lane

       Count Twenty-one, concerning Julie Lane

       Count Thirty-one, concerning Michelle Morrill Count Thirty-two, concerning Michelle Morrill Count Thirty-seven, concerning Kathryn Bischoff

       Count Thirty-eight, concerning Kathryn Bischoff

       Count Forty-five, concerning Marilyn Abbey Count Forty-six, concerning Marilyn Abbey Count Forty-seven, concerning Gary Janis Count Forty-eight, concerning Gary Janis Count Forty-nine, concerning Carol Mulchay Count Fifty-two, concerning August Yamond Count Fifty-three, concerning August Yamond Count Fifty-six, concerning Marie Tortu Count Fifty-seven, concerning Marie Tortu Count Fifty-eight, concerning Ilandie Joseph Count Fifty-nine, concerning Marcia Burke Count Sixty, concerning Marcia Burke

       
       

   78. With regard to the applicable penalty to be imposed in these proceedings, Rule 21-19.009, Florida Administrative Code, provides as follows:

       
       

       Upon proof of violation of the terms of Part VII, Chapter 468, Florida Statutes, the Department may impose fines, civil penalties and license suspension 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 -- 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.

          
          

   79. Rule 21-19.005(3), Florida Administrative Code, provides that the "biennial license fee"/renewal of license fee is four hundred ($400) dollars.

       
       

   80. In view of the Respondent's prior disciplinary history and in view of the large number of violations proved in this proceeding, it appears that a severe penalty is warranted. The Respondent's conduct warrants a maximum fine on each of the twenty-eight counts proved in this proceeding and revocation of the Respondent's license.

RECOMMENDATION

Based on all of the foregoing it is RECOMMENDED that a Final Order be issued in this case to the following effect:

1. In Case No. 90-5328, dismissing all charges in the Administrative Complaint for failure of proof.

   
   

2. In Case No. 90-4799, dismissing the charges set forth in the following counts of the Administrative Complaint for failure of proof: Six, Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen, Fifteen, Nineteen, Twenty,

   Twenty-one, Thirty, Thirty-one, Thirty-two, Thirty-seven, Thirty-eight, Forty-five, Forty-six, Forty-seven, Forty- eight, Forty-nine, Fifty-two, Fifty-three, Fifty-four,

   Fifty-five, Fifty-six, Fifty-seven, Fifty-eight, Fifty-nine, and Sixty.

   
   

3. In Case No. 90-4799, finding the Respondent guilty of the violations of Section 468.402(1)(s), Florida Statutes (1989), as charged in the following counts of the Administrative Complaint: Counts One, Four, Sixteen,

   Twenty-two, Twenty-five, Twenty-eight, Thirty-three, Thirty- five, Thirty-nine, Forty-one, Forty-two, and Fifty.

   
   

4. In Case No. 90-4799, finding the Respondent guilty of the violations of Section 468.402(1)(t), Florida Statutes (1989), as charged in the following counts of the Administrative Complaint: Counts Two, Five, Seventeen, Twenty-three, Twenty-six, Twenty-nine, Thirty-four, Thirty- six, Forty, Forty-three, and Fifty-one.

   
   

5. In Case No. 90-4799, finding the Respondent guilty of the violations of Section 468.402(1)(b), Florida Statutes (1989), as charged in the following counts of the Administrative Complaint: Counts Three, Eighteen, Twenty- four, Twenty-seven, and Forty-four.

   
   

6. In Case No. 90-4799, imposing the following penalties for the violations described above:

   
   

   1. An administrative fine in the amount of $400.00 for each of the 28 violations found above, for a total of administrative fines in the amount of $11,200.00.

      
      

   2. Revocation of the Respondent's license.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of March 1993.

MICHAEL M. PARRISH

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 1st day of March 1993.

APPENDIX

The following are my specific rulings on the proposed findings of fact submitted by all parties.

The following general observations are made in order to facilitate an understanding on the basis for the findings of fact that have been made as well as the basis for the findings of fact that have been rejected. There is no great dispute about most of the basic facts in these cases. There is quite a bit of dispute about numerous details, as well as disputes about what inferences should be drawn from the facts. In resolving these differences I have, for the most part, been more persuaded by the versions described by the Petitioner's witnesses than by the versions described by the Respondent and her witnesses.

In resolving such differences I have especially considered such matters as any motive or bias of each witness, the apparent candor or lack of candor of each witness, the extent to which the testimony of each witness appeared to be logical or illogical, and the extent to which the evidence of each witness appeared to be consistent or inconsistent with other evidence in these cases.

Findings proposed by Petitioner:

Paragraph 1: Rejected as constituting conclusions of law, rather than proposed findings of fact.

Paragraphs 2, 3, 4, 5, 6, 7, 8, 9, and 10: Accepted.

Paragraphs 11 and 12: Accepted in substance, but with some details corrected. Paragraphs 13, 14, 15, and 16: Accepted.

Paragraph 17: Accepted in substance.

Paragraph 18: First sentence accepted; second sentence rejected as not supported by clear and convincing evidence.

Paragraph 19: Accepted.

Paragraph 20: Accepted.

Paragraphs 21 and 22: Accepted in substance. Paragraphs 23, 24 and 25: Accepted.

Paragraph 26: First sentence rejected as unnecessary details. Second sentence accepted.

Paragraph 27: Accepted.

Paragraph 28: Accepted in substance. Paragraph 29: Accepted.

Paragraph 30: Accepted.

Paragraph 31: Rejected as containing numerous inaccurate details. Some somewhat similar findings have been made.

Paragraph 32: Accepted in substance. Paragraphs 33 and 34: Accepted in substance.

Paragraph 35 First sentence accepted. First half of second sentence rejected as not supported by clear and convincing evidence. Second half of second sentence accepted.

Paragraphs 36, 37, and 38: Accepted in substance.

Paragraphs 39 and 40: Accepted. Paragraph 41: Accepted in substance. Paragraph 42: Accepted.

Paragraph 43: Accepted in substance. Paragraph 44: Accepted

Paragraph 45: Accepted.

Paragraph 46: Accepted in substance.

Paragraph 47: Rejected as not fully supported by the evidence and as, in any event, subordinate and unnecessary details.

Paragraph 48: Accepted in substance.

Paragraphs 49, 50, 51, 52, 53, and 54: Accepted. Paragraph 55: Accepted in substance.

Paragraphs 56 and 57: Accepted.

Paragraphs 58 and 59: Accepted that Mrs. Jackson paid to register herself and her daughter and to have Bill Daniels photograph her and her daughter. The remainder of these paragraphs are rejected as irrelevant details or as not supported by clear and convincing evidence. Mrs. Jackson was a difficult witness, both on direct examination and on cross-examination. She was often argumentative, unresponsive, rambling, and disjointed during her testimony. Her testimony was far from clear and was not convincing.

Paragraphs 60, 61, and 62: Accepted in substance.

Paragraph 63: Rejected as not fully supported by the record and as, in any event, irrelevant to the issues in this case.

Paragraph 64: Accepted in substance, with additional details.

Findings proposed by Respondent:

With regard to the proposed findings of fact submitted by the Respondent, it is first noted that the Respondent's proposals are virtually impossible to address with specificity because, for the most part, they are comprised of summaries of testimony (testimony both favorable and unfavorable to the Respondent), rather than being statements of the specific facts the Respondent wishes to have found. In this regard it is perhaps sufficient to note that most of the Respondent's summaries of the testimony are essentially accurate summaries of the testimony at hearing, even where the summaries contain assertions that conflict with each other. As noted above, I have resolved most of those conflicts in favor of the versions put forth by the Petitioner's witnesses. Inasmuch as the Respondent has chosen to summarize testimony rather than make proposals of specific facts to be found, it would serve no useful purpose to embark upon a line-by-line discussion of all of the summaries.

COPIES FURNISHED:

E. Renee Alsobrook, Esquire Department of Professional

Regulation Northwood Centre Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Charles Tunnicliff, Esquire Department of Professional

Regulation Northwood Centre Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Gregory F. Esposito, Esquire Suite 9

8000 Wiles Road

Coral Springs, Florida 33065

Anna Polk, Executive Director Board of Talent Agencies

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-004799

Orders for Case No: 90-004799