The Issue The issue in this case is whether the Board of Opticianry should discipline Respondent, George Martin (Martin), for alleged fraudulent, false, deceptive or misleading advertising in violation of Rule 21P-10.05(2)(a), (b), (f) and (g), Florida Administrative Code, and Section 484.014(1)(e) and (g), Florida Statutes (1983). FINDINGS OF FACT 1/ Petitioner, Department of Professional Regulation (Department), is a state agency charged with regulating the practice of opticianry pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 484, Florida Statutes. Respondent, George Martin (Martin), is and has been at all times material a licensed optician in the State of Florida, having been issued license number DO 000945. In July of 1982, an advertisement was placed by Opti- Mart, an optical company, in the Sarasota Herald Tribune newspaper. A copy of this advertisement is attached and incorporated by reference as Exhibit A. At the time that the advertisement was published, Martin had no ownership or interest as an officer or a director in Opti- Mart, Inc. The advertisement was placed by the owner of Opti-Mart, Mr. Douglas W. Rankin. Prior to placing the ad, Douglas W. Rankin showed the advertisement to Martin, his licensed optician, for his approval. Martin approved the ad. Martin does not recall having seen or approved the subject's advertisement prior to publication, the ad having been placed by Opti-Mart, Inc., although Martin does not specifically deny having seen a copy of the ad prior to publication. At the time of the publication of the ad, Opti-Mart had made arrangements for a licensed optometrist to conduct eye examinations by appointment for persons who called in response to the ad. There was not evidence that any member of the public was actually deceived or misled by the wording of the ad. Any persons who called in response to the ad were informed that the eye examinations were performed by a licensed optometrist and not by Martin or any other optician. Martin did not intend to conduct any eye examination, nor would any such eye examinations be performed by him. Martin had no intention to deceive or mislead any members of the public as to who would be performing the eye examinations. Immediately upon receiving knowledge that there was a question concerning the text of the advertisement, Martin caused Opti-Mart to cease running the ad with Martin's name appearing in the ad.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that the Board of Opticianry enter a final order dismissing the Administrative Complaint in this case with prejudice. RECOMMENDED this 7th day of December, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSON 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 7th day of December, 1984.
Findings Of Fact Violation notices for two signs owned by Petitioner were issued and were the subject of this hearing. Subsequent to the taking of the testimony but prior to the close of the record, the Respondent, Florida Department of Transportation, withdrew its complaint against Petitioner, Peterson Outdoor Advertising, on one of the signs, to wit: Board No. 92 located 4.4 miles north of State Road 404, Highway A1A, n/b with copy "Bank Services" for which a violation notice was issued the 14th day of March, 1977. The violation notice issued against Peterson Outdoor Advertising Corporation on Board No. 3297 located at 1.07 miles south of State Road 520 on Highway 1-95, M.P. 37.10 with copy "Seaworld" is the subject of this hearing. The violation notice cited Petitioner for violation of Section 479.07(1), no permit. Petitioner had a sign located in the approximate location of the sign now cited in violation. The sign was badly damaged by what was apparently an act of God, a windstorm. Most of the sign was destroyed as shown by Petitioner's Exhibit 1, a photograph taken in January of 1977. The sign had been constructed with six inch by eight inch beans and a plywood face. The height of the sign was approximately six feet. There were Peterson identifiers on part of the structure that was left standing. A new structure was erected at the approximate same location. Round poles for the supporting structure were erected. The new sign of new materials was built and the elevation of the new sign is approximately twenty feet in height. The State's Exhibits 2 and 3, photos taken on February 4, 1977, show the new structure, Exhibit 2 showing new round poles and the State's Exhibit 3 showing a sign approximately twenty feet in height advertising "Florida's Best Entertainment Value SEAWORLD. On 4 Between Orlando & Walt Disney World" as copy. The State's Exhibit 1 shows the remains of the old sign in the approximate location. The new sign, which is the sign of this hearing, carries the same permit nunber that the prior destroyed sign carried on one of the posts of the structure. The Respondent, Department of Transportation, contends: that no permit was applied for or obtained for the subject sign; that the old sign in the approximate same location was destroyed by an act of God and a new sign was rebuilt in the approximate location without a permit; that the old sign was erected with square poles and to a height of about six feet whereas the new sign was erected with round poles and with a height of approximately 20 feet; that the permit displayed on the new sign is the permit that had been issued to the old destroyed sign and when the sign was blown down the permit expired and should not have been placed on the new sign by the Petitioner, Peterson Outdoor Advertising. Petitioner, Peterson Outdoor Advertising, contends: that no one saw the old sign fall and it is a mere conclusion that it blew down; that it has a permit on it. The Proposed Recommended Order of Petitioner has been considered in the preparation of this Order.
Recommendation Remove the sign, Board No. 32-97. DONE and ORDERED this day of July, 19'77, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 503 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1977. COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire 115 East Morse Boulevard Post Office Box 539 Winter Park, Florida 32790
Findings Of Fact Lamar Advertising Company was issued permits numbered AH998-10 and AH999-10 on or about October 11, 1982. These permits were for the erection of a sign on the north side of I-10 approximately 1.78 miles west of U.S. 29 in Escambia County, Florida. They were issued because of the existence of an auto paint and body shop within 800 feet of the proposed sign location. When Lamar Advertising Company submitted the applications for the subject permits it designated thereon that the proposed location was within 800 feet of a business. These applications also certified that the signs to be erected would meet all of the requirements of Chapter 479, Florida Statutes. In February of 1984, Lamar Advertising Company was advised that the subject permits were being revoked because of the absence of any visible commercial activity at the permitted location. Subsequently, Lamar Advertising Company requested an administrative hearing pursuant to this notice. Effective on June 30, 1984, Lamar Advertising Company assigned the subject permits to the Respondent. By letter dated September 25, 1984, the Department advised Lamar that the subject permits had been transferred to the Respondent subject to pending litigation. Prior to the issuance of the subject permits to Lamar Advertising Company, the site was inspected by the Department's outdoor advertising inspector, who is presently employed by the Respondent. Before this field inspection the inspector had been informed that a paint and body shop was located in the area, and this business was shown on a sketch submitted with the Lamar applications. When the inspector viewed the site from the interstate, she observed an area where several cars were parked and also saw someone working on a car. She measured the distance from the area where the parked cars were, to the proposed sign site, with her car odometer. No other measurements were made at this time. The inspector made no inquiry of anyone at this location regarding whether or not an automobile paint and body business was actually being conducted there. Nevertheless, she approved the subject permit applications based upon the existence of such a business. Willie James Pritchett who resides at the site of the subject automotive business, is employed by Pensacola Paint & Body, but he does conduct a business known as "Willie's Paint and Body" at this location. Mr. Pritchett's business is such that he works on cars in the back yard of his residence a couple of hours in the evening after work and on the weekends. A detached three stall garage is located behind Mr. Pritchett's residence. The business does not have a telephone listing separate from the residence, and all bookkeeping is conducted at the Pritchett home. Before the Department's inspector became employed by the Respondent, she arranged with Mr. Pritchett for the erection of a small on-premise sign, visible from I-10, advertising Willie's Paint and Body Shop. The phone number listed on this sign is the number of the Pritchett residence. The sign was furnished to Mr. Pritchett by the Respondent, and was erected around the first of February, 1985. If one were looking at the right spot, the Pritchett property is visible from I-10, but is almost completely obstructed by trees. The immediate area is residential in nature. There is nothing about the Pritchett property that would indicate to a traveler on I-10 that anything other than a residence is located at this site, even if the traveler were to see the entire property from the interstate. Mr. Pritchett produced occupational licenses for the periods October, 1977 - September, 1980, and October, 1983 through September, 1985. He testified that "the times I didn't have the license I wasn't in business". Consequently, in the month of October, 1982, when the subject permits were issued, Mr. Pritchett was not conducting an automotive paint and body business. The Department's present outdoor advertising inspector made several measurements at this location with the standard roller tape used by the State. The distance as measured along the pavement of I-10 from the location of Willie's Paint and Body Shop to the closest point at which the Respondent could locate its sign is either 890 feet or 920 feet or 940 feet, depending on how the distance is measured. The Respondent contends that the distance is 781 feet, but the measurements made by the Department's present inspector are accorded the greater weight because of the verification procedures utilized by him.
The Issue Whether the signs of Respondent, Cannon Motel, should be removed for violation of Chapter 499, Florida Statutes, improper setback and no permit to erect the signs.
Findings Of Fact Cannon Motels, Inc. was served with a violation notice on October 18, 1976. The alleged violation was that the Cannon Motel signs were in violation of the state statute inasmuch as they had been erected without first obtaining a permit from the Petitioner, Department of Transportation, and they violate the setback requirements of Chapter 479. Petitioner, by certified letter dated November 11, 1976, requested an administrative hearing. Respondent moved to continue the hearing on the grounds of improper venue, lack of jurisdiction and failure by Petitioner to follow the technical rules. The motion was denied for the reason that the venue was proper being in the district in which a permit for an outdoor advertising sign must be obtained; the Hearing Officer has jurisdiction under Chapter 120, Florida Statutes, and the parties were fully advised of the issue to be heard. The subject signs each read "Cannon Motel." One is located one-half mile west of State Road 85 facing Interstate 10 and the other is located 1.3 riles east of State Road 85 facing Interstate 10. The sign east of State Road 85 is 30 by 12 and is approximately 18 feet from the nearest edge of the right of way. The sign that is west of State Read 85 is approximately 38 feet from the nearest edge of the right of way. Both signs were erected within 660 feet of the federal aid primary road without applying for or securing a permit from the Florida Department of Transportation. At some time prior to the hearing but after the erection of the signs, the area in which the sign located west of State Road 85 was erected was annexed by Crescent City, Florida. That area in which the signs are located is unzoned by the city and zoned agriculture by Okaloosa County.
Recommendation Remove the subject signs within ten (10) days of the filing of the Final Order. DONE and ORDERED this 31st day of October, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 James E. Moore, Esquire Moore and Anchors Post Office Box 746 Niceville, Florida 32578
Findings Of Fact The Respondent, Bill Salter Outdoor Advertising, Inc., was issued permits numbered AI-962-10 and AI-963-10 on or about April 28, 1983. These permits were for the erection of a sign located on the north side of I-10, approximately 1.6 miles east of SR 297, in Escambia County, Florida. They were issued because of the proximity of an automotive business noted on a sketch attached to the applications submitted by the Respondent as "Bill's Paint and Body Shop." In February of 1984, replacement tags numbered AL844-12 and AL845-12 were issued. The Respondent submitted the applications and the attached sketch for these permits, and designated on the applications that the sign location would be in an unzoned area within 800 feet of a business. The sketch shows what is designated as "Bill's Paint and Body Shop" to be in close proximity to the proposed sign location. On each of these applications the Respondent certified that the sign would meet all requirements of Chapter 479 of the Florida Statutes. Prior to the issuance of these permits, the subject site was inspected by the Department's outdoor advertising inspector, who approved the applications because of the existence of a "Pritchett's Paint and Body Shop" nearby the proposed sign location. This inspector was able to see several autos on the Pritchett property and some activity around these autos. Apparently because the inspector expected to find an automotive business near the proposed sign site as represented on the Respondent's applications, it was concluded that such a business existed there, and the applications were approved. Subsequently, a sign was erected on the Pritchett property with the copy "Willie's Paint and Body Shop," but this sign was not in place when the site inspection was made. From the main traveled way of I-10, the inspector was not able to testify specifically that any paint and body work was observed, or that any commercial activity could be seen from the interstate. The inspector merely testified "I observed activity around those automobiles going on." The Pritchett property is residential. Mr. Pritchett lives there. He does operate a paint and body business from his back yard. He has had an occupational license since 1977, renewing these businesses each year through 1984. Although he could not produce a license for the year when the permits were approved, this does not mean that he didn't actually renew the license for this year. Nevertheless, as viewed from I-10, only the sign which was erected subsequent to the approval of the permits and the rear portion of some autos, can be seen. The Department's inspector made a mistake in approving the Respondent's applications because no commercial activity is visible from the interstate. The testimony of the Respondent and his witnesses, including Mr. Pritchett, is rejected as being inconsistent with what can be seen by viewing the photographs in evidence. Moreover, whoever erected the sign had to feel that the view from I-10 was inadequate to qualify the site as commercial without it. During the summer of 1984, the subject site was inspected by a Department Right-of-Way Administrator, who determined that the permits had been issued in error because of the absence of visible commercial activity within 800 feet of the sign. In December of 1984, the Department issued its notices of violation advising the Respondent that the subject sign permits were being revoked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permits numbered AL844-12 and AL845- 12 held by the Respondent, Bill Salter Outdoor Advertising, Inc., authorizing signs on the North side of I-10, approximately 1.6 miles east of SR 297 in Escambia County, Florida, be revoked, and any signs erected pursuant to these permits be removed. THIS RECOMMENDED ORDER entered this 31st day of October, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-0327T The Proposed Findings of Fact submitted by the parties are ruled upon as follows: Petitioner's Proposed Findings of Fact: Accepted. Rejected, as irrelevant. Rejected, as irrelevant. Accepted. Rejected, as irrelevant. Accepted relative to use of sketch. Rejected relative to remainder, as irrelevant. Accepted. Accepted relative to the photos. Rejected relative to remainder, as irrelevant. Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Rejected, as irrelevant. Rejected. Accepted relative to the application. Rejected relative to remainder, as irrelevant. Rejected, as irrelevant. Accepted relative to visibility of the commercial activity. Rejected relative to remainder. Accepted relative to everything except the visibility from I-10. Rejected, relative to the visibility from I-10. Accepted. Rejected relative to visibility from I-10. Accepted relative to the remainder. Accepted. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Mark J. Proctor, Esquire Post Office Box 12308 Pensacola, Florida 32581 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
Findings Of Fact The Respondent's sign which is the subject of this proceeding was erected on Kaley Avenue, approximately 124 feet east of the intersection of Kaley Avenue with U.S. 17/92/441, in Orange County, Florida. This location is approximately .64 mile north of 1-4, as alleged in the violation notice. The subject sign is located on the south side of Kaley Avenue facing east and west which is parallel to U.S. 17/92/441. U.S. 17/92/441 is a federal-aid primary highway. Kaley Avenue is a non-controlled road. The parties stipulated that it was the position of personnel of the Fifth District of the Department of Transportation prior to May of 1985 that state permits for outdoor advertising structures were not required when such structures were to be erected on a non-controlled highway, although said structures might be within 660 feet of a federal- aid primary highway. In March of 1981 the Respondent had applied to the Department for a permit to erect a sign at the location in question in this proceeding. By letter dated April 24, 1981, the Department returned the Respondent's application for the reason that the sign location requested does not face or serve a federal-aid primary highway, and no state permit is required. Based upon the Department's response to its permit application, the Respondent erected its sign at the location where its application sough a permit. The sign was erected in May of 1981. The sign that was erected is visible to traffic on U.S. 17/92/441, although it is parallel to U.S. 17/92/441 and at right angles to Kaley Avenue. There is another permitted sign located on the south side of U.S. 17/92/441, approximately 96 feet from the subject sign. This other sign faces north and south not east and west, and is not on Kaley Avenue. The notice of violation issued for the subject sign in August of 1985 seeks removal of this sign for not having the permit which the Respondent had applied for in 1981, but which had not been issued. It was as a result of the Department's erroneous interpretation of the applicable statutes and rules that the Respondent's application for a permit was returned in April of 1981 advising the Respondent that a permit was not required. As a result of this erroneous interpretation, the Respondent's sign was built.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the charges against the Respondent, Cashi Signs, in the violation notice issued on August 21, 1985, be dismissed, and that the sign which is the subject of this proceeding be given the classification of non-conforming sign. THIS RECOMMENDED ORDER entered on this 23rd day of October, 1986, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1987. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Thomas Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 =================================================================
The Issue Whether the Respondent has violated Section 479.02, Florida Statutes, and Section 479.07, Florida Statutes, for failure to display a visible permit tag and for a multiplicity of advertisers on one side of Board No. 0399B.
Findings Of Fact A violation notice was issued on October 18, 1976, Respondent sign company citing an advertising sign located 10.14 miles south of U.S. 1; 528 north of 520 with copy thereon advertising the businesses of 13 restaurants. At the hearing testimony was heard and evidence was received showing that a permit tag was affixed to a pole of the outdoor advertising structure. The tag was not clearly visible and is difficult to be seen inasmuch as the copy of the board has been nailed on the pole immediately above the permit tag. Testimony was received and an exhibit entered which shows that the entire face of the sign is covered with outdoor advertising. Lettering at the top of the sign states "EAT OUT ENJOY THE INFORMAL FAMILY ATMOSPHERE OF MERRITT ISLAND". The lettering on the bottom board of the sign which is a separate board attached to the main board has the lettering, "TURN RIGHT ON 520". The remainder of the board shows individual advertisements of 13 different places to eat. The Petitioner contends: (1) that the permit tag is not clearly visible as required by the law; (2) that the sign is in violation of Section 479.02(1) and the Governor's Agreement promulgated thereto inasmuch as it displays more than two (2) signs. Respondent contends: (1) that the permit tag is clearly visible; (2) that one advertiser bought the copy and the sign displays but one advertisement.
Recommendation Have the Respondent move the permit tag into a more visible position as required by the statutes. Dismiss the charge as to a violation of the Governor'S Agreement. DONE and ORDERED this 29th day of July, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William Rowland, Esquire 115 East Morse Boulevard Winter Park, Florida 32789
The Issue Whether the Respondent erected and maintained outdoor advertising signs without a proper permit and in violation of the set-back laws of Chapter 479, Florida Statutes.
Findings Of Fact Respondent erected an outdoor advertising sign approximately one (1) mile east of State Road 79 on the north side of Interstate 10 right-of-way. The copy on the face of the sign read: "Rich's Truck Stop, Restaurant, Travel Park, CB Radio Shop, Texaco, This Exit." The distance from the sign to the nearest edge of the pavement of I-10 was approximately two hundred thirty-one (231) feet. The Respondent, Mr. Rich, speaking for the partnership Rich Oil Company admitted that the sign was located as stated in the violation notice. The sign was located in a rural area not zoned by a city or by a county. Respondent erected a second sign located approximately .5 of a mile west of Florida Secondary 181 on the north side of I-10 right-of-way. The sign is painted on the side of a trailer. The size of the sign is nine (9) feet high and forty (40) feet long. The copy states: "Rich's Truck Stop, Exit Highway 79, Marker 111, Open 24 Hours, Restaurant, Camping, Texaco." The trailer with the sign on it is located approximately one hundred three (103) feet from the nearest edge of the pavement of I-10. The trailer with the sign painted on it is standing in a pasture in a rural unzoned area. The Respondent Mr. Rich agreed as to the approximate location of the subject sign. No application for permit was made by the Respondent for either of the two subject signs. Respondent received a Violation Notice from Petitioner stating the signs were in violation of the set-back regulations and were in violation of the statute requiring a state permit. Contrary to the contentions of Respondent, the Hearing Officer finds that both of the signs which are the subject of this hearing and herein described are in fact "signs." The second described sign painted on the side of a trailer is a "sign" within the standard definition "a lettered board or other display used to identify or advertise a place of business," Webster's New Collegiate Dictionary, Copyright 1974 by G. and C. Merriam Company.
Recommendation Remove both of the subject signs within ten (10) days of the issuance of the Final Order unless said signs have been previously removed by the Respondent. DONE and ORDERED this 1st day of February, 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George L. Waas, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. O. E. Black, Administrator Outdoor Advertising Department of Transportation Tallahassee, Florida 32304 Russell A. Cole, Jr., Esquire 123 North Oklahoma Street Bonifay, Florida 32425 Mr. Glen E. Rich Rich Oil Company U.S. 90 West Bonifay, Florida 32425 Mr. J. E. Jordan District Sign Coordinator Post Office Box 607 Chipley, Florida 32428
Findings Of Fact On August 24, 1981, Famous Brands Television and Appliances, Inc., entered into a Consent Order with the State Attorney for Palm Beach County, Florida, whereby Famous Brands, together with its principals and officers and agents, agreed to cease and desist from utilizing "bait and switch" practices or be held in contempt of court. At all times material to that litigation, Respondent Bill Lacek was the president of Famous Brands Television and Appliances, Inc. Famous Brands became bankrupt. Lacek knew that his credibility had been affected by his management of Famous Brands. Therefore, when he opened V.T.S. Video, Inc., a similar business, he placed the corporation in the name of his sister Rose Richard. Although ostensibly the president and sole director of V.T.S. Video, Rose Richard's duties were limited to those of a bookkeeper/office manager, the same duties which she had when she worked for her brother at Famous Brands. V.T.S. Video was in the business of advertising and offering for sale video, television and stereo products to the general public. The business was located at 25 North Military Trail, West Palm Beach, Florida. Respondent Bill Lacek formulated, controlled, and directed the acts and practices at V.T.S. Video. He was personally responsible for the purchasing, advertising, marketing, and promoting of the products sold by V.T.S. Video. He personally wrote the advertising, established the sales commission structure for the employees of V.T.S. Video, and attended sales meetings. Lacek solicited customers through newspaper advertising, including advertisements in The Palm Beach Post. Lacek's advertisements included ads for Sony and Hitachi televisions and video cameras. Respondent Lacek's advertisements were not bona fide offers to sell the advertised products. When customers appeared at V.T.S. Video to purchase the advertised Sony or Hitachi products, they were told by V.T.S. Video employees that the Sony or Hitachi products were not available or that the only product available was a "floor model," i.e., a model which has been used at the business for demonstration purposes and which frequently has been damaged and is, therefore, an unattractive product for purchase. Additionally, Lacek and the employees of V.T.S. Video would disparage the advertised products and "switch" the shopper to a different brand, the item which Lacek intended to sell instead of the advertised product. To assure that his salesmen would follow his established "switch and bait" techniques, Lacek set the sales commission structure so that no commission was paid to a salesman who sold the advertised product (if one were available) rather than the product to which the customer was to be switched. Further, the advertisements written by Lacek did not disclose the fact that the advertised item was a floor model. Hopper Electronics in Miami purchases from the factory rebuilt or refurbished products which it then sells to wholesalers. A rebuilt or refurbished product is a product which has been returned to the factory as defective by a customer or a distributor. The factory repairs the item and then re-boxes it for sale. In other words, a rebuilt or refurbished ("RB") product is a used product. Lacek purchased from Hopper on behalf of V.T.S. Video between 3,000 and 5,000 Emerson "RB" products between approximately late 1986 and late 1987. All of the Emerson RB units purchased from Hopper Electronics carried a label saying "RB" on the back of the unit itself and a label saying "RB" on the box containing the unit. Lacek paid Hopper Electronics a total of $780,000 for Emerson RB units during that time period. Although Lacek knew that the RB units were used and not new products, his newspaper ads for those units did not disclose that the products were used or that they were RB products. The Emerson televisions and VCRs purchased from Hopper were sold to the public as new products. Lacek instructed his employees not to disclose that the Emersons were not new products. If a customer questioned the "RB" label appearing on the back of the unit or on the box, the customer was told that the product had been re-boxed or that the product was from Riviera Beach. Respondent Bill Lacek knew that his sales practices were deceptive and that they constituted unfair trade practices, even prior to the institution of this proceeding, since they were the same practices that he was enjoined from utilizing when he signed the Consent Order on behalf of Famous Brands Television and Appliances, Inc., in 1981. Respondent Lacek's practices in the operation of V.T.S. Video have injured the public. Two Assistant Attorneys General represented Petitioner at the final hearing in this cause. Attached to Petitioner's proposed recommended order are affidavits from those attorneys stating that they have spent 220 hours combined in the "investigation and resolution" of this matter. Petitioner has failed to submit a cost affidavit and has therefore waived its statutory right to recover reasonable costs in this action. The Agreed Final Order to Cease and Desist entered into by Petitioner and Respondents V.T.S Video, Inc., and Rose Richard the day before the final hearing in this cause provides that Respondent V.T.S. Video, Inc., will pay to Petitioner the sum of $10,000 in civil penalties plus the sum of $15,000 for attorney's fees in this action.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered: Finding Respondent Bill Lacek guilty of the allegations in the Complaint filed against him; Ordering Respondent Bill Lacek to cease and desist from all violations of Chapter 501, Part II, Florida Statutes, and of Chapter 2-9, Florida Administrative Code; Assessing against Respondent Bill Lacek a civil penalty in the amount of $1,500,000; and Denying Petitioner's claim for reimbursement of its attorney's fees and costs against Respondent Bill Lacek. DONE and ENTERED this ,7th day of March, 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 7th day of March, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-0505 Petitioner's proposed findings of fact numbered 5, 7-15, and 17 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 6 has been rejected as not constituting a finding of fact. Petitioner's proposed finding of fact numbered 16 has been rejected as not being supported by the record in this cause. COPIES FURNISHED: Rhonda G. Lapin, Esquire Andy Itzkovits, Esquire Assistant Attorneys General Suite N921 401 N.W. Second Avenue Miami, Florida 32128 James S. Telepman, Esquire 340 Royal Palm Way Post Office Box 2525 Palm Beach, Florida 33480 (Last known address for Respondent Bill Lacek) Honorable Robert A. Butterworth Attorney General The Capitol Tallahassee, Florida 32399-1050 =================================================================
Findings Of Fact In March of 1984 the Respondent applied to the Department for a permit to erect a sign facing east at the location in question in this proceeding. The actual location proposed was 350 feet from the right-of-way of U.S. 17/92/441, adjacent to Oak Ridge Road, in Orange County, Florida. U.S. 17/92/441 is a federal-aid primary highway. Oak Ridge Road is a non-controlled road. There is another sign owned by the Respondent located 20 to 25 feet from the subject sign, but there is no evidence in the record to show which direction this other sign faces, or whether the two signs are on the same side of the highway. By memorandum dated April 5, 1984, the Department returned the Respondent's application for the reason that the sign location requested "is not on a federal-aid primary highway", and the Respondent "need only comply with local regulations". This memorandum stated further that "a state sign permit is not required" to locate a sign at the subject site. The application submitted by the Respondent in March of 1984 was returned with the notation on it that the proposed sign "need only comply with local regulations". Based upon the Department's response to its permit application, the Respondent erected its sign at the location where its application sought a permit. The sign that was erected is visible to traffic on U.S. 17/92/441, although it is parallel to U.S. 17/82/441 and at right angles to Oak Ridge Road. The notice of violation issued for the subject sign in July of 1985 seeks removal of this sign for not having the permit which the Respondent had applied for in 1984. The parties stipulated that it was the position of personnel of the Fifth District of the Department of Transportation prior to May of 1985 that state permits for outdoor advertising structures were not required when such structures were to be erected on a non-controlled highway, although said structures might be within 660 feet of a federal- aid primary highway. It was as a result of this erroneous interpretation of the applicable statutes and rules that the Respondent's application for a permit was returned in April of 1984 with the notation on it that a permit was not required. This erroneous interpretation allowed the Respondent's sign to be built.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the charges against the Respondent, Peterson Outdoor Advertising Corporation, in the violation notice issued on July 26, 1985, be dismissed, and that the sign which is the subject of this proceeding be given the classification of non-conforming sign. THIS RECOMMENDED ORDER entered on this 23rd day of October, 1986, in Tallahassee, Florida. WILLIAM B. THOMAS 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 23rd day of October, 1986. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Thomas Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 =================================================================
