STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

MODEL 2000, INC.,

Respondent.

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)

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) Case Nos. 02-2982

) through 02-2996

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on October 23 and 24, 2002, in Tampa, Florida, before Fred L. Buckine, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: No appearance.

STATEMENT OF THE ISSUE

The issue is whether Respondent, Model 2000, Inc., a talent agency, violated Sections 468.402(1)(d), 468.402(1)(e), 468.402(1)(s), 468.402(t), 468.410(2), 468.410(3), 468.412(6)

and 468.413(2)(e), Florida Statutes, through solicitation, fraud, misrepresentation, concealment, false promises, false

pretenses, exploitation, trick, scheme, or device, exercise of undue influence, requiring photography services as a prerequisite condition of employment, and failure to provide contracts of representation as alleged in each of the

15 separate Administrative Complaints filed in this cause.

PRELIMINARY STATEMENT

Petitioner (Agency) charged Respondent, Model 2000, Inc., (Nancy Sniffen) in 15 separate Administrative Complaints containing eight counts each, with the aforementioned violations.1 Respondent, by and through William Cook, Esquire, of Tampa, Florida, timely filed a request for a formal hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

A Notice of Hearing, scheduling the final hearing for September 18 through 20, 2002, and an Order of Pre-hearing Instructions were issued on August 23, 2002.

Respondent's Motion for Continuance was granted, rescheduling the final hearing for October 23 through 25, 2002, in Tampa, Florida, by order dated September 26, 2002.

Petitioner's Motion to Compel and Respondent's Motion in Limine, filed on October 14, 2002, and Respondent's Counsel's Motion to Withdraw and Petitioner's Notice of Reliance on Similar Fact Evidence filed on October 15, 2002, were heard by telephone conference on October 16, 2002. By order of that same date, Respondent's counsel was permitted to withdraw as counsel

of record. Rulings on Petitioner's Motion to Compel and Notice of Reliance on Similar Fact Evidence were reserved until either Respondent retained new counsel or at the final hearing, whichever occurred first.

At the final hearing, no one on behalf of Respondent appeared. Petitioner's pending Motion to Compel and Notice of Similar Fact Evidence were granted.

Petitioner presented the testimony of 14 witnesses: Peter Hernandez, the Agency's investigator; Spencer Borisoff; Rene Donaldson; Athena Lopez; Irma Avery; Charlene Mars; Fiona West; Lisa Menuto; Eric West; Robert Mikolajcak; Gina Hughes; Tom Stanton; Anthony Guaglirado; and Philip Karr. Petitioner introduced 37 exhibits (P-1 through P-37) in evidence.

Petitioner's request for the record to remain open for submission of the deposition testimony of four witnesses2 who were under subpoena but did not appear was granted, and the record remained open until November 3, 2002.

The Transcript and the late-filed deposition of Nelita Parris were filed on November 18, 2002.

Petitioner's first Motion for Extension of Time to file a proposed recommended order was granted, extending the time for filing to November 19, 2002, by order dated October 31, 2000. Petitioner's second motion to extend filing was granted extending the time for filing to December 1, 2002, by order

dated November 18, 2002. Respondent did not file a proposed recommended order. Petitioner's Proposed Recommended Order was filed on December 2, 2002, and has been considered.

FINDINGS OF FACT

1. Petitioner is responsible for the licensing and regulation of talent agents in Florida. Authority for the licensure and regulation is set forth in Chapter 468, Florida Statutes, and associated provisions of the Florida Administrative Code.

2. At all times relevant and material to this inquiry, Respondent, Model 2000, Inc., was owned and operated by Nancy Sniffen, a.k.a. Nancy Keogh (Sniffen), and was licensed in the State of Florida as a Talent Agency, having been issued license number TA 0000618. The last known address for Respondent is 4852 West Gandy Boulevard, Tampa, Florida.

3. At all times relevant to this case, Sniffen advertised in print, served, operated, managed, and held herself out to the public as a Talent Agent by and through Model 2000, Inc.

4. In the Tampa Tribune daily newspaper under the headings, Classified, Employment General Section, Sniffen published the following ad and variations thereof:

   ACT/MODEL NOW

   Kids! Teens! Adults! For TV commercials, print, catalogs, movies. Get started the right way now!!

   Call 837-5700 for interview. No fees Model 2000 Inc. TA#681.

   
   

5. As a direct result of the above advertisement, Renee Donaldson, Irma Avery, Charlene Mars, Gina Hughes, and Robert Mikolajczak responded to the Tampa Tribune advertisement.

6. In the Weekly Planet, a hiring ad, similar in content to the Tampa Tribune ad, containing "Call 837-5700" was published by Model 2000, Inc. As a direct result of this advertisement in the Weekly Planet, Athena Lopez and Lisa Menuto responded.

7. During the initial meeting between Sniffen and the witnesses herein, she made promises, guarantees, and statements known to be false when made regarding each individual's looks and their latent talents. They were told that each had great employment opportunities as models, and with her connections with several department stores, J.C. Penny, Beall's, and Dillards, and her connections with their catalog companies, each model was assured of employment.

8. Based upon their individual looks and ethnic differences, Sniffen stated to one or more of the witnesses who testified that there was: "a high demand for ethnic models" (non-whites), "lots of job for Hispanics," "abundance for work for people with your looks," "they are looking for someone your age," and "there is a demand and need for someone like you."

   Sniffen intended these statement to induce individuals to rely upon her assessment and expertise as a modeling agent to secure employment. At the time Sniffen made the above statements, she knew or should have known that employment opportunities for models required more than her one-look assessment.

9. Sniffen assured each witness that "there was a lot of work in the area"; "companies were looking for people like [sic]"; "have so much work and not enough models to fill jobs"; "I'm affiliated with J.C. Penny, Burdines, and Dillards in their casting area for hiring for photo shots"; and "Florida is number one in hiring for print work." Based upon these representations or variations thereof, Athena Lopez, Irma Avery, Charlene Mars, Fiona West (for her daughter Christy West), Lisa Menuto, Robert Mikolajaczak, Gina Hughes (for her daughter Gabriella Hughes), Tom Stanton, and Nelita Parris agreed to have their photographs taken and agreed to engage Sniffen as their respective modeling agent and representative. The record contains no evidence that Sniffen presently had or had in the past "affiliations" with any of the major chain stores or their casting departments.

10. During the initial meeting with these witnesses, Sniffen required them, as a condition precedent to beginning their modeling career, to have photographs made. These photographs were to be taken by Sniffen's staff photographers,

    and from those photographs each model was required to have composite cards printed at an additional cost.

11. Based upon the representations made by Sniffen requiring each model to have composite card photography, each witness agreed and paid Sniffen a photograph and composite card fee. The witnesses below made payments either in cash and/or by credit card to have their photographs taken by Sniffen's photographers at a location she designated.

    Spencer Borisoff	$934.07
    Tom Stanton	$855.00
    Athena Lopez	$466.94
    Lisa Menuto	$693.00
    Gina Hughes	$1,040.82
    Robert Mikolijcak	$347.00
    Aaliyah Womack	$603.92
    Charlene Mars	$261.15
    Irma Avery	$774.90
    Nelita Parris	$150.00
    Christy West3	$855.00
    Nelita Parris	$150.00

    
    

    No witness hereinabove secured employment with any company as a result of the composite card photographs. Sniffen's representation as their talent agent that composite cards were a pre-employment requirement in the modeling business was untrue and knowingly made with the intent to, and in fact did, cause each witnesses to reply thereon to their determinant.

12. Sniffen hired Anthony Guagliardo, a Florida-licensed public service photographer since 1999, as one of her three photographers to take photographs of her clients. From

    November 1999 to April 2000, Guagliardo worked for Sniffen taking photographs of her clients.

13. Sniffen called the Photo Hut were he worked seeking a photographer that would assist her with photographing her clients who came in to have their composite cards made. Sniffen's initial phone conversation at Photo Hut was with another person on duty who asked other employees if anyone was interested in part-time work. After a brief conversation, Guagliardo agreed to be a photographer and began working for Model 2000, Inc.

14. According to his testimony, Guarliardo's daily employment hours were from 9:00 a.m. to 5/6:00 p.m. daily. He worked infrequently on Saturdays and Sundays. For his photography services, he was paid $25.00 per hour. During a routine day, Guagliardo testified that as many as 20 persons would arrive to have their pictures taken, and he would take

    18 shots of each client in three different poses or positions.

    
    

15. Mr. Guagliardo testified that a bulk purchase of film reduced cost of each roll of film to $2.00 per roll. The contact sheet cost $20.00 per sheet from which 72 photographs were made. A single roll of film was needed to photograph two clients. The cost to Sniffen for one hour of the photographer's time, a roll of film, and two contact sheets averaged $65. The average amount Sniffen charged each of the 11 clients listed

    above for their photo-shoot was $583.00 each. During the time he was on duty, Guagliardo testified that normally two additional photographers were also working doing photo shoots for Sniffen.

16. The evidence clearly demonstrates that Sniffen advertised to attract customers, each of whom she required payment for photographs upon her representations that composite photograph cards were a pre-employment requirement for modeling. The evidence sufficiently demonstrates that Sniffen had no honest intent; her singular purpose was financial gain, and her means was the photography/composite card requirement. Once monies were paid, few of the witnesses were able to contact Sniffen and none secured modeling employment through Sniffen's efforts.

17. The models, believing Sniffen's assurances that composite card photographs were necessary for securing employment in modeling, later came to realize Sniffen's intent was only to secure payment for the photo sessions. Sniffen's continued refusals to answer phone calls, to communicate with the witnesses after composite card payments were made, and the lack of leads and/or contacts from potential employers demonstrated her single-minded purpose not to assist them as their modeling agent. They were intentionally misled by Sniffen's false promises.

18. The Agency proved the allegations in the following Administrative Complaints:

    DOAH	02-2982	- Spencer Borisoff
    DOAH	02-2983	- Tom Stanton
    DOAH	02-2984	- Athena Lopez
    DOAH	02-2985	- Lisa Menuto
    DOAH	02-2988	- Gina Hughes
    DOAH	02-2990	- Robert Mikolkczak
    DOAH	02-2992	- Aaliyah Womack
    DOAH	02-2993	- Charlene Mars
    DOAH	02-2994	- Irma Avery
    DOAH	02-2995	- Nelita Parris
    DOAH	02-2996	- Christy West

    
    

19. The Agency presented no evidence concerning the administrative complaints below and have not met its required burden of proof.

    DOAH 02-2986 - Bilan Evans DOAH 02-2987 - Louis Kelbs DOAH 02-2989 - John Greene DOAH 02-2991 - Van Saint Meyer

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this case in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

21. Petitioner has alleged that Respondent violated Section 468.402(1)(e), Florida Statutes, which concerns a talent agent who knowingly committed material fraud, misrepresentation causing another person to rely upon the agent's work to that

    party's injury or damage, and in relevant part, states that action may be taken against a person who has:

    (e) Knowingly committed or been a party to any material fraud, misrepresentation, concealment, conspiracy, collusion, trick, scheme, or device whereby any other person lawfully relying upon the work, representation, or conduct of the talent agency acts or has acted to his or her injury or damage.

    
    

22. Petitioner has alleged that Respondent violated Section 468.402(1)(s), Florida Statutes, which concerns solicitation of business by fraud or deception through the use of misleading statements or undue influence, on the part of a talent agent, and in relevant part, states that action may be taken against a person who has:

    (s) Solicited business, either personally or through an agent or through any other person, through the use of fraud or deception or by other means; through the use of misleading statements; or through the exercise of intimidation or undue influence.

    
    

23. Petitioner has alleged that Respondent violated Section 468.402(1)(d), Florida Statutes, which concerns publishing false statements or promises as inducement for persons to act to their injury, and in relevant part, states that action may be taken against a person who has:

    (d) Made, printed, published, distributed, or caused, authorized, or knowingly permitted the making, printing, publication, or distribution of any false statement, description, or promise of such a

    character as to reasonably induce any person to act to his or her damage or injury, if such statement, description, or promises were purported to be performed by the talent agency and if the owner or operator then knew, or by the exercise of reasonable care and inquiry, could have known, of the falsity of the statement, description, or promise.

    
    

24. Petitioner has alleged that Respondent violated Section 468.410(2), Florida Statutes, which concerns employment conditioned on the purchase of photography services and provides in relevant part that:

    (2) No talent agency shall, as a condition to registering or obtaining employment for any applicant or artist, require the applicant or artist to subscribe to, purchase, or attend any publication, postcard service, advertisement, resume service, photography service, school, acting school, workshop, acting workshop, or video or audiotapes.

    
    

25. Petitioner has alleged that Respondent violated Section 468.410(3), Florida Statutes, which concerns a written contract for services and fees charges and provides in relevant part that:

    (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.

26. Petitioner has alleged that Respondent violated Section 468.412(6), Florida Statutes, which concerns misleading publications and provides in relevant part that:

    (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.

    
    

27. Petitioner has alleged that Respondent violated Section 468.402(1)(t), Florida Statutes, which concerns promises of promoting modeling services and prohibits the:

    (t) 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.

    
    

28. In disciplinary license proceedings, Petitioner must prove each allegation made in the administrative complaint by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investors Protection v.

    Osborne Stern Company, 670 So. 2d 932 (Fla. 1996).

29. In accordance with its burden, Petitioner has shown that Respondent advertised in both a daily, Tampa Tribune (daily readership over 80,000 within the Hillsborough-Pinellas County area), and a weekly, the Weekly Planet, newspaper. It is reasonable to assume that Respondent knew at the time of the advertisement, she did not intend to provide written contracts of employment to those who responded and she, in fact, did not provide written contracts of employment, but rather provided a photo shoot agreement.

30. The printed solicitations were employed to establish contact with persons desiring modeling employment. Once contact was established with the several models, Respondent would make each person sign an agreement to pay for a required pre- employment photo shoot. Respondent informed the models, and indeed insisted, that a paid photo shoot and composite card purchase were required before any potential employment efforts could be undertaken.

31. In accordance with its burden, Petitioner has shown that Respondent, knowing she did not have "affiliates with catalog companies" who would hire models referred by Respondent, stressed this falsity in conversations with applicants as the means of inducing them to begin the process of photo shoot composite card payment. Respondent required each applicant to sign a photo shoot agreement before undertaking their

    representation. Respondent, knowingly and to the detriment and injury of each complainant, did not give a written contract of employment as a talent agent.

32. By requiring that each complainant purchase a photo shoot and that 100 or more composite cards be taken from a photo shoot, Respondent exploited the models for personal financial gain, having nothing to do with securing a modeling job for the individual.

33. After the composite card purchase, Respondent would advise the models to "market yourself by sending at lease two comp cards." Respondent's efforts of "obtaining employment or placement for applicants" consisted of providing the names and addresses of two or three companies and agencies to clients for their direct contact. All attempts by applicants to contact Respondent after the composite card purchases were met with no response.

34. Petitioner has carried its burden of proof and demonstrated by clear and convincing evidence of record that Respondent violated Sections 468.402(1)(d), 468.402(1)(e), 468.402(1)(s), 468.402(t), 468.410(2), 468.410(3), and 468.412(6), Florida Statutes.

35. Respondent is subject to penalties provided in Section 468.402(5), Florida Statutes, which provides in relevant part that:

    1. The department may take any one or more of the actions specified in subsection

1. against any person who has:

   
   

   * * *

   
   

   1. Made, printed, published, distributed, or caused, authorized, or knowingly permitted the making, printing, publication, or distribution of any false statement, description, or promise of such a character as to reasonably induce any person to act to his or her damage or injury, if such statement, description, or promises were purported to be performed by the talent agency and if the owner or operator then knew, or by the exercise of reasonable care and inquiry, could have known, of the falsity of the statement, description, or promise.

      
      

   2. Knowingly committed or been a party to any material fraud, misrepresentation, concealment, conspiracy, collusion, trick, scheme, or device whereby any other person lawfully relying upon the work, representation, or conduct of the talent agency acts or has acted to his or her injury or damage.

* * *

1. Solicited business, either personally or through an agent or through any other person, through the use of fraud or deception or by other means; through the use of misleading statements; or through 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.

* * *

(5) Upon a finding of a violation of any one or more of the grounds enumerated in subsection (1) or any other section of this part, the department may take the following actions:

* * *

1. Permanently revoke or suspend the license of a talent agency.

   
   

2. Impose an administrative fine, not to exceed $5,000, for each count or separate offense.

   
   

3. Require restitution.

   
   

4. Issue a public reprimand.

   
   

5. Place the licensee on probation, subject to such conditions as the department may specify.

RECOMMENDATION

Upon consideration of the facts found, the evidence admitted, and the Conclusions of Law reached, it is hereby

RECOMMENDED that:

1. Petitioner enter a final order dismissing the following Administrative Complaints: DOAH Case No 02-2986; DOAH Case

   No. 02-2987; DOAH Case No. 02-2989; and DOAH Case No. 02-2991.

   
   

   It is further Recommended that:

   
   

2. Petitioner enter a final order finding Respondent in violation of Section 468.413(2), (3) and (4), Florida Statutes, and impose the following penalties:

   1. Require Respondent to make restitution to the Complainants below within 60 days:

      Case Nos. Complainants Amount

      
      

      DOAH	02-2982	Spencer Borisoff	$934.07
      DOAH	02-2983	Tom Stanton	$855.00
      DOAH	02-2984	Athena Lopez	$466.94
      DOAH	02-2985	Lisa Menuto	$693.02
      DOAH	02-2988	Gina Hughes	$1,040.82
      DOAH	02-2990	Robert Mikolkczak	$347.00
      DOAH	02-2992	Aaliyah Womack	$603.92
      DOAH	02-2993	Charlene Mars	$261.15
      DOAH	02-2994	Irma Avery	$774.90
      DOAH	02-2995	Nelita Parris	$150.00
      DOAH	02-2996	Christy West	$855.00

      
      

   2. Impose a fine in the amount of $1,000 for each of the following Administrative Complaints: DOAH Case No. 02-2982; DOAH Case No. 02-2983; DOAH Case No. 02-2984; DOAH Case

      No. 02-2985; DOAH Case No. 02-2988; DOAH Case No. 02-2990; DOAH Case No. 02-2992; DOAH Case No. 02-2993; DOAH Case No. 02-2994;

      DOAH Case No. 02-2995; and DOAH Case No. 02-2996, for a total of

      
      

      $11,000 in fines.

      
      

   3. Permanent revocation of Respondent's license.

      
      

   4. Should Respondent fail to timely comply with full payment of the restitutions and the fines as herein ordered, the Agency pursue those sanctions as provided in Sections 468.413(2) and 468.413(4), Florida Statutes.

DONE AND ENTERED this 10th day of January, 2003, in Tallahassee, Leon County, Florida.

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 2003.

ENDNOTES

1/ The 15 Administrative Complaints filed against Respondent and the respective Complainants: Spencer Borisoff-02-2982; Tom Stanton-02-2983; Athena Lopez-02-2984; Lisa Menuto-02-2985; Bilan Evans-02-2986; Lois Krebs-02-2987; Gina Hughes-02-2988; John Greene-02-2989; Robert Mikoljczak-02-2990; Pat Van Sant-02- 2991; Aaliyah Womack- 02-2992; Charlene (Dino) Mars-02-2993; Irma Avery-02-2994; Nelita Parris-02-2995; and Christy West-02- 2996. These cases were consolidated sua sponte by order dated July 31, 2002.

2/ The witnesses were: Bilan Evans-DOAH Case No. 02-2986; Louis Kelbs-DOAH Case No. 02-2987; John Greene-DOAH Case No. 02-2989; and Pat Van Saint-DOAH Case No. 02-2991.

3/ At the time of this recommended order, Eric and Fiona West, (on behalf of Christy West) DOAH Case No. 02-2996, have a suit pending in Hillsborough County Circuit Court against Model 2000, Inc., Case Number 2001-5239, seeking damages and attorney's fees. Should Eric and Fiona West recover in their Circuit Court action, their $855 recovery hereinabove would be precluded under the doctrine of unjust enrichment.

COPIES FURNISHED:

Gail Scott-Hill, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Nancy Sniffen, President Model 2000, Inc.

4852 West Gandy Boulevard Tampa, Florida 33611

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Julie Malone, Executive Director Division of Professions Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 02-002983

Orders for Case No: 02-002983