Recommendation Based on the foregoing findings of fact and conclusive of law, it is Recommended that the amended administrative complaint filed against Respondents be dismissed with prejudice. DONE and entered this 23rd day of May, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23 day of May, 1984.
The Issue Whether Seligman and Latz, Inc., d/b/a May Cohen Beauty Salon did operate a cosmetology salon without the presence and supervision of a master cosmetologist in violation of Sections 477.27(1), 477.15(8), and 477.02(4), Florida Statutes.
Findings Of Fact Notice of this hearing was duly served on Respondent and Counsel for both parties were present. The Division of Administrative Hearings, Department of Administration has jurisdiction over the proceedings. Respondent holds a current cosmetologist salon license Number 7150. Two inspectors from the Board of Cosmetology entered the premises of the Respondent Seligman and Latz, Inc. late in the evening on September 19, 1974 and observed the Respondents' employee Joyce McClain practicing the art of cosmetology, to wit: combing out the hair of a customer. The employee, Joyce McClain, was not a master cosmetologist at the time. The inspectors for the Board observed the employee, discussed the violation with her and wrote a violation, presented it to her and left the premises, having inspected the area which was used as the public space in which the customers were invited and which the employees performed services for and on the customers. No master cosmetologist was in the room in which the employee, Joyce McClain, was arranging the hair of a customer and no master cosmetologist was in direct supervision of the salon at the time the inspectors were inspecting the salon as a part of their employment by the Board of Cosmetology. The Hearing Officer further finds upon consideration of all the facts and the evidence that the violation by the employee, Joyce McClain, to wit: combing and arranging the hair of a customer while a master cosmetologist was not present and was not directly supervising the operation is contrary to the requirements of Section 477.04, F.S. The Hearing Officer further finds that the time of the inspection was late in the day; that the Work being done by the cosmetologist, Joyce McClain, was not an inherently dangerous procedure; that the salon had master cosmetologists in its employment although said master cosmetologists were not in direct supervision of the cosmetologist at the time of the inspection; that the comb-out or combing and arranging of the hair of a customer is the practice of cosmetology as defined in Section 477.03(e), F.S.: "(e) Hairdressing or the arranging, waving, dressing, curling, cleansing, thinning, cutting, singeing, bobbing, bleaching, tinting, coloring, steaming, straightening, dyeing, brushing, beautifying or otherwise treating by any means the hair of any person."
Recommendation Suspend the license of Respondent or not less than one day and not more than thirty (30) days. DONE and ORDERED this 29th day of January, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald G. LaFace, Esquire Counsel for Petitioner John R. Forbes, Esquire Counsel for Respondent ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA FLORIDA STATE BOARD OF COSMETOLOGY BOARD OF COSMETOLOGY, Petitioner, vs. CASE NO. 75-594 LICENSE NO. 7150 SELIGMAN & LATZ, INC., d/b/a May Cohen Beauty Salon, Respondent. /
The Issue The issue presented herein is whether or not the names Miami Yacht Sales, Inc. and Miami Yacht Brokerage, Inc. are deceptively similar.
Findings Of Fact Based upon my observation of the witness and his demeanor while testifing, documentary evidence received, pleadings and responses, and the entire record compiled herein, I hereby make the following relevant factual findings. On 0ctober 7, 1977, Respondent, Division of Corporations, issued Charter number F40099 permitting the use of the corporate name Miami Yacht Sales, Inc. to the Petitioner in reliance on Chapter 607, Florida Statutes. On January 3, 1984, Respondent, Division of Corporations, issued Charter number 087231 permitting, the `use of the corporate name Miami Yacht Brokerage, Inc. to the Respondent in reliance on Chapter 607, Florida Statutes. Petitioner is engaged in the business of selling new and used boats and yachts. Petitioner conducts its business at 2122 N. River Drive, Miami, Florida. Petitioner, through its president, Larry Stevens, related one incidence of a telephone communique from Merrill Stevens Brokerage, a competitor which was seeking information respecting one of Respondent, Miami Yacht Brokerage, Inc., salesmen. Mr. Stevens also related at least one instance wherein a supplier misdelivered a package which was destined for the Respondent's business, end Petitioner rerouted that package to Respondent. Petitioner, through Mr. Stevens, generally alluded to "confusion, client-wise" which he believed would continue as soon as Respondent, Miami Yacht Brokerage, Inc., was able to get an advertisement in the Yellow Pages of the Miami telephone directory. Petitioner pointed to no specific acts of confusion or other deceptive practices by Respondent, Miami Yacht Brokerage, Inc.. example, Petitioner did not substantiate that any of its customers went to the Respondent's business and had to ultimately be directed to Petitioner's business. Likewise, Petitioner did not allege or otherwise claim that the name Miami Yacht Brokerage, Inc. was selected by Respondent based on an attempt to deceive or otherwise defraud the consuming public. As stated herein, Respondent, Miami Yacht Brokerage, Inc., did not appear at the hearing herein although it was properly noticed by copy of a notice of hearing filed May 28, 1984 scheduling this matter for hearing on June 28, 1984. However, the evidence reveals that Respondent, Miami Yacht Brokerage, Inc., is also engaged in the business of selling new and used boats and yachts and its business is situated approximately four miles from Petitioner's business site.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is therefore recommended that the petition of Miami Yacht Sales, Inc., seeking to forbid the use by the Respondent of the name Miami Yacht Brokerage, Inc., be DENIED. Recommencded this 13th day of November, 1984, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1984.
The Issue The issues for determination in this proceeding are whether Respondent violated Sections 475.426(1)(a) and 475.25(1)(a), (b), and (e), Florida Statutes, 1/ by: acting as a broker; failing to deposit money in escrow; committing fraud, deceit, or dishonesty; and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate and for regulating licensees on behalf of the state. Respondent is a licensed real estate sales person under license number 0585127. In September, 1992, Respondent's real estate license had lapsed. It was renewed on October 22, 1992. The last license issued to Respondent was issued as a sales person at 457 Loma Bonita Drive, Davenport, Florida. Respondent is a British citizen doing business in Florida. Respondent owns 50 percent of the outstanding stock of Newbay Florida Associates ("Newbay") and Newbay Properties of Central Florida, Inc ("Newbay Properties"). Mr. Paul Chandler is a British citizen confined to a wheelchair by osteogenesis imperfecta, a bone disease. Mr. Chandler was injured in an automobile accident by a drunken driver in 1989. As a result, Mr. Chandler was awarded a jury verdict of $600,000. From the net proceeds of the jury verdict, Mr. Chandler purchased four houses in Florida from Respondent. The houses were for Mr. Chandler and members of his family who have disabilities similar to Mr. Chandler's. 2/ Mr. Chandler paid the remainder of his jury award, approximately $225,000, to Respondent to purchase a furniture franchise. The franchise was to be operated as Flamingo Interiors, Inc. ("Flamingo"), in Kissimmee, Florida. In September, 1992, Respondent and Mr. Chandler negotiated and executed a Franchise Rights Agreement (the "agreement"). The agreement identifies Mr. Chandler as the "franchisee" but otherwise conceals material facts and contains misrepresentations, false promises, false pretenses, and amounts to dishonest dealing by trick, scheme, or device. The agreement illustrates Respondent's fraud and breach of trust in a business transaction. The agreement contains the name "NEWBAY FLORIDA ASSOCIATES" across the top of the front page of the document. However, the agreement identifies the "franchisor" as Flamingo Interiors of Wells, Somerset, England. The agreement requires Flamingo Interiors to perform numerous obligations. The obligations include: setting up a retail store; providing all necessary training, licensing, qualifications, visas, and inventory; conveying an exclusive area of operation within an "eight (8) miles radius from the Newbay office;" and establishing the location and size of the retail store at the discretion of Newbay. The agreement represents that Newbay owns 25 percent of the outstanding stock in Flamingo Interiors. However, the agreement conceals Flamingo Interiors' place of formation, organization, and current status, and conceals Newbay's authority, or lack of authority, to bind Flamingo Interiors to the obligations of the franchisor in the agreement. Respondent is the only signatory to the agreement other than Mr. Chandler. Respondent signed the agreement on behalf of Newbay. No one from Flamingo Interiors is a signatory to the agreement. The purchase price under the agreement requires Mr. Chandler to deposit $45,000 upon execution of the agreement. The balance of $180,000 is to be paid by December 31, 1992. Mr. Chandler paid the $225,000 required under the agreement in three checks made payable to "Newbay Clients Account." Respondent represented that the amounts paid by Mr. Chandler would be held in the escrow account of Newbay Properties until the obligations of the franchisor were completed in accordance with the terms of the agreement. All negotiations were conducted in the offices of Newbay Properties. Newbay Properties had no escrow account. Respondent failed to place the $225,000 paid to him by Mr. Chandler into any escrow account. The obligations of the franchisor were never satisfied, in whole or in part. Neither Respondent, Newbay, nor Flamingo Interiors made any attempt to obtain performance of the obligations of the franchisor. After repeated efforts and requests by Mr. Chandler, Respondent failed to account for or return Mr. Chandler's money. Respondent never explained his failure to return the money deposited with Respondent by Mr. Chandler.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Sections 475.25(1)(k), 475.25(1)(e), and 475.42(1)(a); guilty of violating Section 475.25(1)(b); and revoking Respondent's real estate sales license. RECOMMENDED this 8th day of February, 1995, in Tallahassee, Florida. DANIEL S. MANRY 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 8th day of February 1995.
The Issue Whether Respondent violated Section 477.15(8)(9), Florida Statutes, and Regulation 21F-301, Florida Administrative Code, by operating a cosmetology salon without a salon license.
Findings Of Fact Notice of this hearing was attempted by mail and notice was left at the proper address. The Division of Administrative Hearings has jurisdiction over the proceeding. Respondent holds a current cosmetologist license No. 18927. Respondent is or has been practicing the art of cosmetology in her home without first having secured a certificate of registration for a cosmetology salon.
Findings Of Fact From March 4, 1976, through March 18, 1976, and from April 19, 1976, until the business closed in 1976, Lipshutz was a registered real estate salesman in the employ of FAR. From October 29, 1975, through February 18, 1976, Gottstein was a registered real estate salesman in the employ of FAR. From February 20, 1976, until March 31, 1976, and from April 19, 1976, until the business closed in 1976, Beck was a registered real estate salesman in the employ of FAR. FAR was a registered corporate broker, located in Dade County, Florida. During those periods of time, Far was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owners for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing fee. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Respondents. FREC introduced no evidence to show that Respondents represented that the property could be sold for several times the purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase United States property listed with the company. There was no evidence introduced to show that Respondents either made the representations or knew them to be false. There was no evidence introduced to show that Respondents knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Respondents were dishonest or untruthful.
The Issue The issue presented for decision herein is whether or not the Respondent's, PSL Realty, Inc., registered name is deceptively similar to Petitioner's registered name, Port St. Lucie Realty, Inc. Ultimately, Petitioner seeks an Order cancelling Respondent's registered name.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. On November 20, 1972, Respondent, Department of State, Division of Corporations, issued Charter number 413260 permitting the use of the corporate name Port St. Lucie Realty, Inc., to the Petitioner in reliance on Chapter 608, Florida Statutes (1971). On March 11, 1983, Respondent, Department of State, Division of Corporations, issued Charter number G27456 permitting the use of the corporate name PSL Realty, Inc., to the Respondent in reliance on Chapter 607, Florida Statutes. Since Petitioner's incorporation during 1972, Petitioner has used the acronym PSL in advertising signs for more than ten (10) years. Since approximately April, 1983, several calls and inquiries have been made to brokers and salesmen in the Petitioner's office respecting rental properties. Petitioner has listed rentals on an extremely limited basis. Since Petitioner became aware of Respondent, PSL's, incorporation during approximately March 1983 Petitioner has stopped using the logo PSL on advertising signs, etc., pending the outcome of this administrative hearing. In its advertising, Petitioner always lists its phone number. Additionally, there have been isolated instances of misdeliveries by United Parcel Service and fielding of complaints by a local homeowner's association known as Windmill Point. (Testimony of Ann Chambers, Petitioner's President and a real estate broker, and Mrs. Robert Nesbitt, a member of the Property Owner's Association of Windmill Point.) Since Respondent, PSL, became registered on March 11, 1983, it has only used specific blue and white business cards and its phone number is listed correctly on all advertising materials. Respondent, PSL's, salesmen do not misrepresent or pass themselves off as being representatives of any real estate company other than as a representative of PSL Realty, Inc. (Testimony of Kenneth Benzenhafer, Incorporator, Registered Agent and Salesman for Respondent; Harold P. Partenheimer, Vice-President and Broker for PSL Realty, Inc.; and the deposition testimony of Bertha Hensley [Petitioner's Exhibit A].) The acronym, PSL, is used extensively by commercial advertisers as well as local community service and governmental agencies including the City Council. Petitioner conceded that it has not attempted to seek any protection by means of consequent "third-party" and/or constructive notice available under the trademark service mark collective mark statute, i.e. Chapter 495, Florida Statutes, for the acronym PSL. Nor has there been any showing that the Petitioner has made filings under the fictitious name statutes, Section 865.09, Florida Statutes. Therefore, by using the acronym PSL in its advertising materials, it appears that any confusion has been largely caused by the Petitioner in this cause. The name Port St. Lucie Realty, Inc., is not deceptively similar to the name PSL Realty, Inc.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Secretary of State enter a Final Order denying Petitioner's request for the relief requested in the form of requiring the Respondent, PSL Realty, Inc., to amend its articles of incorporation and registration with the Department of State to reflect a name other than as registered, PSL Realty, Inc. DONE AND ENTERED this 8th day of April 1984 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April 1984. COPIES FURNISHED: James F. Gray, Esquire 220 South Second Street Ft. Pierce, Florida 33450 Douglas E. Gonano, Esquire Citizens Federal Building Suite 200 1600 South Federal Highway Ft. Pierce, Florida 33450 Carole Barice, Esquire Department of State The Capitol Tallahassee, Florida 32301
Findings Of Fact The Petitioner DuPont Realty Investment Corporation was issued Charter No. 535008 on April 27, 1977. Petitioner is a nonprofit corporation which remained active until December 16, 1981, when it was involuntarily dissolved for failure to file its annual report. Corporate status was reinstated ab initio on June 29, 1983 and has since remained in good standing. Respondent DuPont Realty, Inc., "was issued Charter No. 680928 on August 4, 1980, and has been permitted the use of that corporate name by the Respondent Secretary of State. The Petitioner challenged the Respondent's right to the use of the name DuPont Realty, Inc., and an administrative hearing was held on August 20, 1981, a Recommended Order was entered, and a Final Order issued on November 23, 1981, which found the names of the parties to this proceeding not to be deceptively similar. The Final Order of the Secretary of State ,was note appealed by the Petitioner. Subsequently, the Petitioner filed on May 17, 1983, a letter requesting a hearing on whether the names of the parties were deceptively similar. At the final hearing, the Respondent DuPont Realty, Inc., filed a Motion to Dismiss based on the November 23, 1981, Final Order finding that the two corporate names were not deceptively similar. The Petitioner opposed the Motion to Dismiss arguing that subsequent events would demonstrate that the names were in fact and law, deceptively similar. Since the entry of the Final Order on November 23, 1981, the Petitioner has received a real estate salesman's license for Linda Green, an employee of the Respondent, which was sent to the Petitioner by the Department of Professional Regulation by mistake. Additionally, on one occasion a printing company sent the Petitioner a bill with the name DuPont Realty and the Petitioner has received a few telephone calls from customers who were attempting to contact the Respondent. The Respondent has taken steps since the previous hearing to lessen any possible confusion which might have resulted between the two companies. Her clientele today is exclusively French-Canadian, she has moved out of Dade County and into Broward County, is no longer listed in the Greater Miami telephone directory, and sells almost exclusively residential properties. The parties are presently operating businesses in which there are greater differences today than there were in 1981. They no longer compete in the same geographical area, do not serve the same type of clients, and market different types of properties.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Respondent Secretary of State finding the names DuPont Realty Investment Corporation and DuPont Realty, Inc., not to be deceptively similar. DONE and ORDERED this 30th day of November, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1983.
