STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEROVICAP PHARMACEUTICAL )

CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-613

) STATE OF FLORIDA, DEPARTMENT OF ) AGRICULTURE AND CONSUMER )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on June 9, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Terry Fleischer, President

Gerovicap Pharmaceutical Corporation 1785 East Sahara Ave., Suite 160

Las Vegas, Nevada 89104

For Respondent: John S. Koda, Esquire

Office of General Counsel

Florida Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent should grant Petitioner's application for a commercial telephone seller license pursuant to provisions of Chapter 501, Part IV, Florida Statutes.

PRELIMINARY STATEMENT

By letter dated January 11, 1993, Respondent denied Petitioner's application for a commercial telephone seller license under provisions of the Florida Telemarketing Act set forth in Sections 501.601-501.626, Florida Statutes.

Subsequently, Petitioner requested formal administrative proceedings in response to the denial and the matter was transferred to the Division Of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the hearing, Petitioner presented the testimony of two witnesses and three exhibits. Respondent presented testimony of one witness and four exhibits. The Hearing Officer took official recognition of the documents contained in the file of the Division Of Administrative Hearings Case No. 93- 613.

The transcript of the final hearing was filed with the Division of Administrative Hearings on June 23, 1993. Proposed findings of fact provided by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner is Gerovicap Pharmaceutical Corporation, Inc., a Nevada Corporation. Petitioner was incorporated in 1988. Petitioner has no offices in any state other than Nevada. Petitioner has been operating telemarketing services for a period of approximately 10 years.

   
   

2. Respondent is the state agency charged with the enforcement of state regulation of telemarketing businesses in accordance with provisions of Chapter 501, Part IV, Florida Statutes.

   
   

3. The application submitted by Petitioner to Respondent for licensure as a commercial telephone seller listed three legal actions taken against Petitioner in the states of Florida, Oregon and Wisconsin.

   
   

4. Petitioner entered into an Agreed Permanent Injunction and Final Judgment in the Circuit Court of the 11th Judicial Circuit for Dade County, Florida, on October 5, 1992. At that time, Petitioner accepted responsibility for running a mail advertisement promotion in Florida, advising potential customers to call a toll free number to place orders although Petitioner had not met the State of Florida's registration requirements. As a part of the settlement, Petitioner agreed to refrain from advertising and promoting sweepstakes in Florida in violation of state requirements and paid a total of

   $2,500 to cover a civil penalty, as well as attorney fees and costs.

   
   

5. Petitioner entered into an Assurance of Voluntary Compliance in Circuit Court in Marion County, Oregon, on August 7, 1992. Petitioner agreed at that time to refrain from engaging in telephone solicitations in the state of Oregon and to pay $7,500 in investigative costs and attorney fees to the Oregon Department of Justice.

   
   

6. On September 11, 1992, a Consent Judgment was entered in the Circuit Court for Waukesha County, Wisconsin. Based upon the stipulation of the parties, the judgment enjoined Petitioner from engaging in certain sweepstakes activities and ordered Petitioner to pay a civil forfeiture to the state of Wisconsin in the amount of $10,000 for various violations of that state's telemarketing regulations.

   
   

7. In accordance with provisions of Section 501.612(1)(c), Florida Statutes, Respondent denied Petitioner's application for licensure in the State of Florida as a commercial telephone seller as a result of the Florida, Oregon and Wisconsin legal actions.

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Respondent has the discretion to deny licensure to an applicant in accordance with provisions of Section 501.612(1)(c), Florida Statutes, if the applicant is, or has ever been, the subject of an "injunction, temporary restraining order, or final judgment or order, an assurance of voluntary compliance, or any similar document, or any restrictive court order" which relates to previous business activity of the applicant.

   
   

10. In the instant case, Respondent's denial of licensure on the basis of previous discipline accorded Petitioner in Florida, Wisconsin and Oregon, is well within Respondent's statutory authority and the purpose of the Florida Telemarketing Act to "promote the general welfare of the public and the integrity of the telemarketing industry." Section 501.602, Florida Statutes.

    
    

11. Petitioner bears the burden of proving by a preponderance of the evidence entitlement to the issuance of the license which is the subject of this proceeding. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has failed to meet this burden.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered denying Petitioner's application. DONE AND ENTERED this 20th day of July, 1993, in Tallahassee, Leon County,

Florida.

DON W. DAVIS

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 20th day of July, 1993.

APPENDIX

The following constitutes my rulings, pursuant to requirements of Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Petitioner's Proposed Findings

1.-2. Accepted in substance. 3.-5. Rejected, relevance.

6.-8. Subordinate to HO findings on this point.

1. Rejected, unnecessary.

2. Accepted, but not verbatim. 11.-12. Rejected, argument, relevancy.

1. Accepted.

2. Rejected, weight of the evidence.

3. Rejected, relevancy.

Respondent's Proposed Findings 1.-7. Accepted in substance.

1. Rejected, recitation of statute.

2. Accepted.

COPIES FURNISHED:

Terry Fleischer, President

Gerovicap Pharmaceutical Corporation 1785 East Sahara Ave., Suite 160

Las Vegas, Nevada 89104

Jerome A. DePalma, Esquire 3201 South Maryland Parkway Suite 326

Las Vegas, Nevada 89109

John S. Koda, Esquire Office of General Counsel

Florida Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

Hon. Bob Crawford Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399-1550

Richard Tritschler General Counsel

513 Mayo Building

Tallahassee, Florida 32399-0800

Brenda Hyatt, Chief

Bureau of Licensing & Bond Department of Agriculture Mayo Building, Rm 508

Tallahassee, Florida 32399-0800

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 consult with 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: 93-000613

Orders for Case No: 93-000613