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.
Findings Of Fact 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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 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
Recommendation Upon consideration of the facts found, the evidence admitted, and the Conclusions of Law reached, it is hereby RECOMMENDED that: 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: Petitioner enter a final order finding Respondent in violation of Section 468.413(2), (3) and (4), Florida Statutes, and impose the following penalties: 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 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. Permanent revocation of Respondent's license. 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.
The Issue Whether Respondent's license as a talent agency in the State of Florida should be suspended, revoked, or otherwise disciplined for alleged violations of Chapter 468, Florida Statutes. Whether Respondent violated Section 468.402(1) (s), Florida Statutes (1989), by soliciting business, either personally or through an agent or through any other person, through the use of fraud, deception, or otherwise; the use of misleading statements; or the exercise of intimidation or undue influence.
Findings Of Fact At all times material to the Administrative Complaint, Respondent was a licensed talent agency in the State of Florida, license number TA 0000086. Respondent is the owner and operator of La Moda International Modeling Agency, Inc. Mr. Douglas Dobbs, (hereinafter: Dobbs), in April 1989, presented himself to Respondent's agency, in an undercover capacity for the publication "Florida Celebrity," to determine whether recent consumer complaints to the publication were valid. Dobbs and Patricia Ann Hardy, (hereinafter: Hardy) represented themselves as people new in the industry who were looking for modeling jobs. During Respondent's interviews with Dobbs, Hardy was present on both occasions. Respondent told Dobbs and Hardy that he, the Respondent, discovered Jared and Kolbie Boyle and that he sent the Boyle children to New York on loan to another agency. Respondent further stated that he was the Boyle children's agent for many jobs and booked Kolbie Boyle for the cover of "Vogue Enfants", a French magazine. As a result his agency earned about $35,000.00 from the publication of the photograph. The Respondent also indicated that the Boyle children were receiving residual income for past work. The Respondent advised Dobbs and Hardy that the Boyle children were listed with La Moda, and the Respondent caused to be printed newspaper articles that represented that the Boyle children were listed by La Moda. The Respondent, or his employees, also represented in newspaper articles published regarding the Boyle children, that the children were going to model in Los Angeles and Germany. Jared and Kolbie Boyle are the young children of Lori Boyle. In 1985, her daughter, Kolbie, took modelling classes at La Moda Modeling studio where she met Respondent. Thereafter, both children were taken to New York where they participated in several photography sessions. These sessions were arranged by the children's mother through the Rascal's agency and Kidds Etc., both of New York City. In 1988, Kolbie Boyle appeared on the cover of Paris Vogue Enfants, a French magazine, for which Kolbie was paid $50-75. This booking was arranged by the mother through the Irene Marie Agency of Miami. No residual or other payments from Respondent or anyone else have been received as a result of this cover. The Boyle children are not, and never have been, under contract as models with the Respondent or his agency. The only contract signed by Lori Boyle, on behalf of the children, was an enrollment agreement for modeling classes for Kolbie in 1985. Lori Kolbie did grant Respondent permission to use the photographic likenesses of her children for general promotional purposes. However, she did not grant permission for Respondent to indicate that the children were going to Los Angeles or Germany for modeling assignments. Lori Boyle was contacted by Dobbs for verification of the information received by Dobbs and Hardy from the Respondent regarding the children. The Respondent gave Dobbs and Hardy a "clientele list" of agencies that the Respondent claimed to do business with on a regular basis. The "clientele list" actually contained the names of agencies that Respondent was trying to do business with. Respondent has stopped using the "clientele list" because people misunderstood its purpose. Respondent has had contact with several foreign country agencies on the "clientele list" and received books from several agencies as well as correspondence regarding possible association with Respondent. The Respondent, however, has worked with one agency. Respondent is a young man who is a resident alien from Iran and speaks with a distinct accent. During his testimony at the hearing, he had difficulty using correct tenses and phraseology in English. The Respondent submitted his new paper work and/or handout, for new talent as mitigation evidence to demonstrate his intent to conform to state laws. The Respondent's new forms, however, do not include the words "Talent Agency" as required by law. The Respondent also submitted his new contract as mitigation evidence to demonstrate the Respondent's desire to conform to state laws, however, the contract also does not include the words "Talent Agency" on the contract as required. The Respondent has been previously disciplined in Case Nos. 85998 and 92871 by the Department.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Department of Professional Regulation impose a civil penalty of $400.00 and suspend the Respondent's license to practice as a talent agency for four (4) months. It is further recommended that Respondent's license remain suspended until such time as the Respondent demonstrates that his contract and handouts comply with Chapter 468.412(6), and Rule 21-19.010(2), and Rule 21-19.010(4)(b), Florida Administrative Code. DONE AND ENTERED this 12th day of July, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 12th day of July, 1990. APPENDIX The following constitutes my specific rulings, as provided in Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted in substance: Paragraphs 1,2,3,4,5,6,7,8 (in part), 9,10,11,12,13 (in part: 2nd and 3rd sentences rejected as hearsay), 14. Rejected as hearsay: paragraph 15. Respondent's Proposed Findings of Fact: Accepted in substance: Paragraphs 1,2,3,15 Rejected as against the greater weight of the evidence or irrelevant or argument: 4,5,6,6(#2) ,7,8,10,11,12,13,14 16,17,18,19,20. COPIES FURNISHED: E. Renee Alsobrook, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack Perlmutter, Esquire 500-B North Harbor City Boulevard Box 361293 Melbourne, FL 32936-1293 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Mildred Gardner, Executive Director Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 =================================================================
The Issue At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint, as amended, and, if so, what disciplinary action should be taken.
Findings Of Fact Preliminary matters At all times material hereto, respondent, Eston Mansfield, held Florida teaching certificate number 691581, covering the area of middle grades mathematics, grades 5 through 9. Such certificate expired June 30, 1995. At the time of the incidents at issue, respondent was, from time to time, employed as a substitute teacher by the School Board of Dade County, Florida, and the School Board of Broward County, Florida. Moreover, during such times, respondent was also self-employed, as a professional photographer. The incident in question In or about February 1993, A. E., a fifteen year old female, was referred to respondent, who she understood to be a professional photographer. 2/ At the time, A. E. was entertaining an interest in modeling, and had need for a modeling portfolio. A. E. and respondent spoke by telephone, and respondent agreed to do the photographs for the portfolio, and quoted a price between $1,500 and $2,000. When A. E. told respondent she could not afford the cost, respondent countered by telling her that he was looking for a model to practice some nude photography and that if she would agree to pose for the photographs he would do the photographs for the portfolio at no charge. A. E. agreed to the trade. At the time A. E. spoke with respondent, she was not a student, having "legally withdrawn" from school, was sharing an apartment with her older sister, age 18, and their respective boyfriends. A. E.'s boyfriend at the time was older than A. E., and A. E., although underage, was not a stranger to alcohol. Although A. E. and respondent had no personal contact prior to their telephone conversation, respondent had visited with her sister in the past, in an effort to interest her in a wedding portfolio, and was aware of A. E. and her living arrangements. Respondent was further aware that A. E. was the younger of the two sisters and knew, before the photography session hereinafter discussed, that A. E. was 15 years of age. In February or March, 1993, A. E., together with her friend, Wendy Colvin, went to respondent's home for the anticipated photography session. As described at hearing, respondent's home included an area that was suitably equipped for professional photography and the session, based on the persuasive proof, appears to have been conducted in a professional manner. 3/ Before the session began, respondent offered and A. E. accepted an alcoholic drink to help her "relax". Thereafter, A. E. posed in several sets of lingerie that she had brought for the session, and then posed for a number of nude photographs. Apart from the observation that some of the lingerie A. E. wore was her sister's wedding lingerie, the record is devoid of any descriptive observations from which one could draw any reliable, as opposed to speculative, conclusion as to its character. Likewise, the record is largely devoid of any descriptive observations of the lingerie or nude photographs, such that one cannot draw any reliable, as opposed to speculative, conclusion regarding their character or content. Notably, the photographs were not exhibited or offered at hearing, and only the vaguest of descriptions elicited from the witnesses. In A. E.'s opinion, some of the photographs "were tasteful, some were not." In respondent's opinion, some of the photographs that might be described as "tasteless" did not meet "a professional standard," which he attributed to A. E.'s amateur status and unfamiliarity with proper positioning or posing. 4/ Given the paucity of proof concerning the character or content of the photographs, it cannot be concluded that the photographs, in whole or in part, offended contemporary community standards by predominantly appealing to prurient, shameful or morbid interest, that the photographs were without any serious artistic value, or that the photographs were otherwise obscene, as that term is commonly understood. Moreover, there was no proof offered, by student, teacher, or otherwise, that respondent's practice of nude photography, albeit with a 15-year-old girl, otherwise offended community values or reduced his effectiveness as a teacher.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That a final order be rendered dismissing the charges filed against respondent. DONE AND ENTERED this 1st day of August, 1996, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1996.
The Issue This is a license discipline case in which the Respondent has been charged by Administrative Complaint with numerous violations of Part VII of Chapter 468, Florida Statutes (1989), which are the statutory provisions regulating the talent agency business.
Findings Of Fact At all times material hereto, Respondent has been licensed as a talent agency in the State of Florida, having been issued license number TA 0000015. Respondent's last known address is 2803 East Commercial Boulevard, Suite #204, Fort Lauderdale, Florida 33308. At all times material hereto, Respondent has been married to Bill Daniels, a photographer, whose office is in the same building as the Respondent's agency. The Respondent and Bill Daniels share living quarters, expenses, profits from each other's incomes, and a joint personal checking account. At all times material hereto, Art Feldman (who is also sometimes known as "Art Field"), under the Respondent's direction, regularly spoke to, interviewed, and took money from artists who sought work through T.J. Norris Co., Inc. At all times material hereto, the Respondent and Art Feldman recommended only Bill Daniels as a photographer to the artists seeking to register with the Respondent. At all times material hereto, the Respondent, as well as Art Feldman and Ed Russell (who was another of Respondent's employees), were authorized by Bill Daniels to collect funds from and issue receipts to talent registered with the Respondent for photographic services and to obtain Bill Daniels picture releases from talent. The Bill Daniels receipts reflected that the Respondent "does not guarantee work or casting." At all times material hereto, Bill Daniels, at no charge to the Respondent, would make up photos from proofs of talent registered with the Respondent, a service Mr. Daniels did not provide to other talent agencies. Bill Daniels gave the Respondent the photography negatives of talent registered with Respondent. Facts regarding Counts One, Two, and Three -- Laurie Wells On or about February 2, 1988, Laurie Wells, after seeing Respondent's advertisement, took her daughter, Jena, to the Respondent's agency for the purpose of procuring modeling and/or acting work for her daughter, who was three years old at the time. The Respondent and Art Feldman told Ms. Wells that Jena would be perfect for an upcoming television series starring Zsa Zsa Gabor. The Respondent and Art Feldman both told Ms. Wells that she would not be able to use her own photographs of Jena, but would need to have a portfolio of photographs taken by Bill Daniels before Jena could be submitted for consideration for a role in the television series. Ms. Wells paid Mr. Feldman three hundred twenty- five dollars to register her daughter with the agency and to have photographs taken by Bill Daniels. Nevertheless, Jena was never called for casting for the television series and Jena never received any work through Respondent's agency. Ms. Wells never received a copy of the contract she signed with the Respondent's agency. At the time she was dealing with the Respondent's agency, Ms. Wells was a beginner in the talent industry. The photographs that Ms. Wells brought with her to her first meeting with the Respondent and Mr. Feldman were current photographs of Jena. The photographs that Ms. Wells brought with her to that first meeting were later used by other talent agencies from which Jena obtained work. Even though the Respondent and Mr. Feldman never guaranteed any work for Jena, they both made statements implying that there was lots of work available and that Jena would be perfect for some of that work. Facts regarding Counts Four, Five, and Six -- Donna Thomas On or about March 29, 1988, Donna Thomas, as a result of one of Respondent's advertisements, took her four-year-old granddaughter, Tami, to Respondent's agency to procure modeling work for Tami. Ms. Thomas spoke with both Art Feldman and with the Respondent. The Respondent told Ms. Thomas that her granddaughter was one of the most beautiful little girls they had had in the agency for a long time. The Respondent went on to state that she could definitely get Tami all kinds of work, but before they could do so Tami would have to have some pictures made. The Respondent also suggested that the pictures should be made as soon as possible. It was suggested to Ms. Thomas that she should have the photographs done by Bill Daniels. Ms. Thomas was not told of any other options for obtaining photographs. Ms. Thomas paid the Respondent two hundred fifty-five dollars to register Tami with the agency and to have photographs of Tami taken by Bill Daniels. The Respondent's agency never procured any work for Tami; the agency never even called about any work opportunities for Tami. At the time of her dealings with the Respondent's agency, Ms. Thomas was a beginner or novice to the talent industry. The evidence in this case is unclear as to whether the Respondent did or did not provide a copy of a contact to Ms. Thomas or to Tami's parents. Facts regarding Counts Sixteen, Seventeen, and Eighteen--Mr. and Mrs. Waldron On or about April 21, 1988, Mrs. Waldron, after seeing one of the Respondent's advertisements, took her son Richard to the Respondent to procure work for him in modeling or acting. Art Feldman told Mrs. Waldron that her son Richard was absolutely beautiful and was exactly what the agency was looking for. Feldman went on to say that he received calls every day from people who are looking for children just like Richard for movies, commercials, catalogs, and newspaper ads. Mr. Feldman went on to say that photographs had to be taken before the agency could do any work for Richard; that without a portfolio there was absolutely nothing the agency could do for Richard. Feldman urged Mrs. Waldron to use Bill Daniels for the photographs and described Bill Daniels as a "resident photographer" who did all of the agency's portfolios and who could get the photos done faster than other photographers. Mrs. Waldron signed a contract with the Respondent's agency and paid the Respondent three hundred fifty-five dollars to register Richard with the agency and have Richard's photographs taken by Bill Daniels. Mrs. Waldron never received a copy of the contract she signed with the Respondent. Richard did not procure work through the Respondent for over a year. When contacted about the lack of work, Art Feldman insisted that updated photographs be taken. When Mrs. Waldron refused new photographs until Richard obtained work, Richard was suddenly called for work as an extra on a movie called "Chains of Gold." Subsequently, Mrs. Waldron asked about other work for Richard, but Art Feldman said it was unavailable until more photographs were taken. At the time of her dealings with the Respondent, Mrs. Waldron was a beginner to the talent industry. Facts regarding Counts Twenty-two, Twenty-three, and Twenty-four--Marie Strong On or about July 11, 1988, Mrs. Marie Strong took her six-month-old son, Caleb, to Respondent's agency for the purpose of procuring work for Caleb in modeling and/or acting. Mrs. Strong met with Art Feldman who told her he could obtain work right away for Caleb, because there were several catalogs coming out within the next week or two that needed children Caleb's age. Feldman also told her that in order to do that she needed to get a professional portfolio taken right away by the agency's photographer, Bill Daniels. Feldman urged Mrs. Strong to pay a deposit on the photographs that very day and dissuaded her from taking time to discuss the matter with her husband. Mrs. Strong paid a deposit in the amount of one hundred thirty dollars the first day and returned the next day with the balance of one hundred ninety- five dollars. The photographs of her son Caleb were taken that day by Bill Daniels. Mrs. Strong was not told of any options to have the photographs taken by some other photographer. The Respondent's agency never procured any work for Mrs. Strong's son. The Respondent's agency never provided Mrs. Strong with a copy of a contract. At the time of their dealings with the Respondent, Mrs. Strong and her son were novices or beginners to the talent industry. Facts regarding Counts Twenty-five, Twenty-six, and Twenty-seven--Kory Bielski On or about September 8, 1988, after seeing Respondent's advertisement and calling for an appointment, Kory Bielski went to Respondent's agency for the purpose of procuring modeling and/or acting work. Mr. Bielski met with Art Feldman. Mr. Feldman told Mr. Bielski there was a lot of work he might be good for and that he wanted Mr. Bielski to sign up with the agency and get started. However, Mr. Feldman told Mr. Bielski that he had to have photographs taken before they would do anything. Mr. Feldman told Mr. Bielski that the agency had a photographer it worked with, and referred him to Bill Daniels. Mr. Feldman did not mention that Mr. Bielski could go to another photographer. Mr. Bielski paid Mr. Feldman a total of $425.00 to pay for the agency's registration fee and for photographs to be taken by Bill Daniels. The only work Mr. Bielski received through the Respondent's agency was two days of work as an extra in a movie. Mr. Bielski signed a contract with the Respondent's agency, but he was never given a copy of the contract. Facts regarding Counts Twenty-eight, Twenty-nine, and Thirty--Brian Cossack On or about October 14, 1988, in response to a newspaper advertisement, Brian Cossack went to Respondent's agency for the purpose of procuring voice-over work. Mr. Cossack met first with Art Feldman. Even though Mr. Cossack's primary interest was in obtaining voice-over work (in which the physical appearance of the artist is irrelevant), Mr. Feldman told him he would be perfect for a role in an upcoming horror film and that he would also be given TV commercial work. When Mr. Cossack said he had very little on-camera experience and did not feel prepared to take on a role of that type, Mr. Feldman continued to insist that he would be a shoe-in for the role. Mr. Feldman called the Respondent into the room and the Respondent also expressed assurances that Mr. Cossack would be perfect for movie and TV work. The Respondent went on to say that she would pay half of the cost of Mr. Cossack's photography session. After mentioning that he was relying on their assurances, Mr. Cossack paid $30.00 to register with the Respondent's agency and agreed to pay $300.00 for photographs to be taken by the photographer recommended by the Respondent. Mr. Cossack paid $100.00 towards the photographs on the first day. A few headshots were taken that day. A few days later, Mr. Cossack returned, paid the $200.00 balance, and some more photographs were taken. Mr. Cossack never received any of the photographs. Mr. Cossack gave both checks for the photographs to Mr. Feldman. The only work Mr. Cossack obtained through the Respondent's agency was work as an extra in a movie. He worked one day as an extra and declined an opportunity to work a second day as an extra. There is no clear and convincing evidence that the Respondent's agency failed to provide Mr. Cossack with a copy of a contract. Facts regarding Counts Thirty-three and Thirty-four--Chaim Kohl On or about December 28, 1988, Chaim Kohl took his four-year-old son, Roy, to Respondent's agency for the purpose of procuring modeling work for Roy. At that time Mr. Kohl was a beginner to the talent industry. Mr. Kohl met with Art Feldman and told Mr. Feldman that he wanted the agency to teach his son how to be a model and to obtain work for his son as a model. Mr. Feldman told Mr. Kohl that Mr. Kohl would have to have photographs of his son taken by Bill Daniels if he wanted the Respondent's agency to represent him. Mr. Feldman also said that as soon as the photographs were ready there would be lots of castings because the agency had lots of work with huge clients. Mr. Kohl agreed to have the photographs taken and ultimately paid $30.00 to register his son with the Respondent's agency and $300.00 for the photography session with Bill Daniels. Mr. Kohl's son never received any work through the Respondent's agency; he was never even called for any castings. Facts regarding Counts Thirty-five and Thirty-six--Harriet and Jim Nabors During February of 1989, Jim and Harriet Nabors went to Respondent's agency for the purpose of procuring modeling and/or acting work. At that time Mr. and Mrs. Nabors were both beginners to the talent industry. They went to Respondent's agency more or less on a lark, in response to one of the Respondent's newspaper advertisements. Mr. and Mrs. Nabors met with Art Feldman. Mr. Feldman told them that before any work could be sought for them, they would have to have photographs taken by Bill Daniels, who he described as being the agency photographer. No other photographic options were given. Mr. and Mrs. Nabors paid $30.00 each to register with Respondent's agency. Mrs. Nabors paid an additional $395.00 for photographs. Mr. Nabors paid $410.00 for photographs and $300.00 for four acting lessons. All of the checks were delivered to Mr. Feldman. Neither Mr. Nabors nor Mrs. Nabors received any work through the Respondent's agency. They received very few calls advising them of work opportunities. When Mrs. Nabors called about opportunities, she was told that business was slow. Facts regarding Counts Thirty-nine and Forty--Michelle Barton On or about September 7, 1989, Michelle Barton took her son, Nicholas, to Respondent's agency for the purpose of procuring modeling work for Nicholas. At that time Nicholas was almost a year old and Ms. Barton was a beginner to the talent industry. Ms. Barton met with Art Feldman and told him she wanted to obtain modeling work for her son. The son had red hair. Mr. Feldman said there was a big need for children with red hair and specifically mentioned that there would be casting opportunities during the next month. Mr. Feldman also told Ms. Barton that she would have to have a portfolio of photographs of Nicholas taken by Bill Daniels, who was described to her as the agency photographer or as a photographer affiliated with the Respondent's agency. She was not told of any other photographic options. Ms. Barton paid $30.00 to register her son with the Respondent's agency and paid $295.00 to have photographs taken by Bill Daniels. She later paid an additional $25.00 to obtain two extra photographic prints. Ms. Barton delivered all of the checks to Mr. Feldman. Ms. Barton never received any work for her son through the Respondent's agency. Ms. Barton later registered her son with another agency. The only photographs she sent to that agency were snap shots. The second agency called her on several casting opportunities. Facts regarding Count Forty-one--Marilyn Moore On or about March 21, 1990, after seeing the Respondent's advertisement in the telephone book, Marilyn Moore took her thirteen-month-old daughter, Jaime, to Respondent's agency for the purpose of procuring modeling work for Jaime. At that time Ms. Moore was a beginner to the talent industry. Ms. Moore met with Art Feldman and told him she wanted to obtain modeling work for her daughter. She had with her a small color photograph of the child that had been taken approximately a month earlier by Olan Mills. Mr. Feldman told Ms. Moore that he definitely thought her daughter had potential as a model, but that first she would have to be registered with the agency and they would need more photographs of the child. Mr. Feldman also told her that he had a photographer who could take the photographs. Ms. Moore asked if they could use the photographer she already had, and Mr. Feldman replied that the agency really needed eight-by-ten black and white photographs and that the agency photographer was in the next room and could do the photographs right then and there for a fee. Ms. Moore asked Mr. Feldman if she could use another photographer and Mr. Feldman replied that it was best to use the agency's photographer because they had worked together before and the agency photographer knew exactly what they needed. Ms. Moore registered her daughter with the Respondent's agency and wrote a $30.00 check to pay the registration fee. She left the payee's name blank on the check and delivered the check to Mr. Feldman. Someone later stamped the check with the name Bill Daniels as payee. Ms. Moore did not agree to have the agency's photographer take any photographs of her child and she declined the request that she make another appointment with the Respondent's agency. Later that same day, Ms. Moore stopped payment on the $30.00 check she had delivered to Mr. Feldman. A couple of days later, before he knew that payment had been stopped on the check, Mr. Feldman called Ms. Moore on the telephone and told her she could use her own photographs. Facts regarding Counts Forty-two, Forty-three, and Forty-four--Sonia Watson On or about December 7, 1988, after seeing the Respondent's advertisement in a newspaper, Sonia Watson took her eight-month-old daughter, Jessica, to Respondent's agency for the purpose of procuring modeling work. At that time Mrs. Watson and her infant daughter were beginners to the talent industry. Because she was a beginner, Mrs. Watson went to the Respondent's agency primarily for the purpose of obtaining information. Mrs. Watson met with Art Feldman. Mr. Feldman was very encouraging about the modeling prospects for Mrs. Watson's child and he told Mrs. Watson the agency would have no problem finding jobs for her daughter and that Mrs. Watson should not worry about the money for the agency's service or for the photographs because she would be able to make it back easily. Mr. Feldman told Mrs. Watson she would have to pay a $30.00 registration fee, a $15.00 fee for a "portfolio" photograph, and a $300.00 fee for photographs and for hiring the agency to find jobs for her daughter. During the first visit Mrs. Watson paid the $30.00 registration fee and the $15.00 "portfolio" fee. She later made an appointment to have the photographs taken and paid half of the money for the photographs. Thereafter, half of the photographs were taken by Bill Daniels, who was described by Mr. Feldman as "our photographer." About two months later, Mrs. Watson returned and paid the remaining half of the money for the photographs and Bill Daniels took the other half of the photographs. Mrs. Watson paid all of the money to Mr. Feldman. Mrs. Watson was supposed to receive five 8 x 10 photographs of her child. The photographs were never provided to her. Mrs. Watson signed a contract after she paid all of the money. She did not receive a copy of the contract she signed. Before agreeing to have Bill Daniels take her child's photographs, Mrs. Watson had found a photographer who would do a photographic "portfolio" of her daughter for $90.00 or $95.00. When she told Mr. Feldman about that possibility, Mr. Feldman advised against it and told her she should use the agency's photographer because the photographer knew the companies the agency dealt with, knew the positions and things the companies were looking for, and, also, that the $300.00 fee included hiring him as her agent. Mrs. Watson's child never received any work through the Respondent's agency. Facts regarding Counts Fifty and Fifty-one--Mr. and Mrs. Trent On or about August 12, 1989, after seeing the Respondent's advertisement in a newspaper, Mr. V. G. Trent took his two daughters, Gayle and Shirene, to Respondent's agency for the purpose of procuring modeling work for Gayle and Shirene. At that time, Mr. Trent and his two daughters were all beginners to the talent industry. The Trents met with Art Feldman. Mr. Feldman said that, because of their tall and exotic looks, the two girls would be working in no time. Mr. Feldman told them that they would need photographs and that the agency would take the photographs for them. Mr. Trent was not advised of any other options regarding the photographs. Mr. Feldman told Mr. Trent it would be in the best interest of the girls for the agency to take the photographs because the agency would be representing the girls and the agency would know what pictures to select. Mr. Trent agreed to Mr. Feldman's suggestions regarding the photographs and agreed to pay $760.00 to have both girls registered with the Respondent's agency and to have both girls photographed by Bill Daniels. The registration was $30.00 for each girl and the photography was $350.00 for each girl. During the first visit Mr. Trent paid a down payment towards the $760.00 and the balance was paid by his wife during a subsequent visit. Neither of Mr. Trent's daughters ever received any work through the Respondent's agency. Facts regarding Counts Fifty-four and Fifty-five--Helena Jackson On or about February 25, 1988, Helena Jackson, also known as Helena Steiner-Hornsteyn, and her teenage daughter, Annika, went to Respondent's agency for the purpose of procuring modeling and/or acting work for Annika. Following conversations with Art Feldman and the Respondent, Mrs. Jackson and her daughter ultimately paid to register with the Respondent's agency and to have photographs taken by Bill Daniels. There is no clear and convincing evidence as to what representations were made to Mrs. Jackson and her daughter by Mr. Feldman or the Respondent. Facts regarding photography needs of beginners In the opinion of experts in the talent agency business, beginning talent should spend as little as possible for photographs until they learn more about the business, decide whether they like the business, or begin to receive regular bookings. In the case of infants and children up to the age of about 10 or 12 years of age, it is sufficient for beginning talent to use snapshots that have been enlarged up to about 5 x 7 inches. An adequate supply of such enlargements can be obtained for approximately $40.00. Everyone in the talent industry is aware of the fact that babies and young children change in appearance quite rapidly and they are not expected to submit professional photographs for castings. In the opinion of experts in the talent agency business, it is sufficient for beginning talent to limit their photography expense to obtaining an 8 x 10 glossy headshot. As one expert explained, ". . . to go beyond an 8 x 10 glossy headshot, to me, is ridiculous. And, I think is a waste of money." A photo session limited to headshots is available from Bill Daniels for $125.00 and is available for less from other photographers in the area of the Respondent's agency. In the opinion of experts in the talent agency business, inexperienced talent are very susceptible to suggestions made by talent agents and have a tendency to follow agents' suggestions due to their inexperience. Because of this tendency, it constitutes undue influence for a talent agent to recommend a specific photographer to a beginning talent without also advising the talent that there are other less expensive alternatives available. Allegations on which no evidence was submitted In DOAH Case No. 90-5328 there is no competent substantial evidence of the Respondent's conduct alleged in either Count One or Count Two, both concerning Elizabeth Kingsley. In DOAH Case No. 90-4799 there is no competent substantial evidence of the facts alleged in any of the following counts: Count Seven, concerning Sarah (Tina) Polansky Count Eight, concerning Sarah (Tina) Polansky Count Nine, concerning Sarah (Tina) Polansky Count Ten, concerning Tracy Wilson Count Eleven, concerning Tracy Wilson Count Twelve, concerning Tracy Wilson Count Thirteen, concerning Michael Pry Count Fourteen, concerning Michael Pry Count Fifteen, concerning Michael Pry Count Nineteen, concerning Julie Lane Count Twenty, concerning Julie Lane Count Twenty-one, concerning Julie Lane Count Thirty-one, concerning Michelle Morrill Count Thirty-two, concerning Michelle Morrill Count Thirty-seven, concerning Kathryn Bischoff Count Thirty-eight, concerning Kathryn Bischoff Count Forty-five, concerning Marilyn Abbey Count Forty-six, concerning Marilyn Abbey Count Forty-seven, concerning Gary Janis Count Forty-eight, concerning Gary Janis Count Forty-nine, concerning Carol Mulchay Count Fifty-two, concerning August Yamond Count Fifty-three, concerning August Yamond Count Fifty-six, concerning Marie Tortu Count Fifty-seven, concerning Marie Tortu Count Fifty-eight, concerning Ilandie Joseph Count Fifty-nine, concerning Marcia Burke Count Sixty, concerning Marcia Burke The Respondent has prior violations of Chapter 468, Florida Statutes. In DPR Case Number 102652, the Respondent entered a Settlement Stipulation agreeing to pay a fine in the amount of two hundred dollars for a violation of Section 468.412(6), Florida Statutes (1988), regarding advertising by a talent agency. In DPR Case Numbers 0110491 and 0106073, DOAH Case Number 89-5521, the Respondent was found to have violated Section 468.410(3), Florida Statutes, on three (3) counts and Section 468.402(1)(t), Florida Statues, on two (2) counts. The Respondent was ordered to pay a fine in the amount of two thousand dollars.
Recommendation Based on all of the foregoing it is RECOMMENDED that a Final Order be issued in this case to the following effect: In Case No. 90-5328, dismissing all charges in the Administrative Complaint for failure of proof. In Case No. 90-4799, dismissing the charges set forth in the following counts of the Administrative Complaint for failure of proof: Six, Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen, Fifteen, Nineteen, Twenty, Twenty-one, Thirty, Thirty-one, Thirty-two, Thirty-seven, Thirty-eight, Forty-five, Forty-six, Forty-seven, Forty- eight, Forty-nine, Fifty-two, Fifty-three, Fifty-four, Fifty-five, Fifty-six, Fifty-seven, Fifty-eight, Fifty-nine, and Sixty. In Case No. 90-4799, finding the Respondent guilty of the violations of Section 468.402(1)(s), Florida Statutes (1989), as charged in the following counts of the Administrative Complaint: Counts One, Four, Sixteen, Twenty-two, Twenty-five, Twenty-eight, Thirty-three, Thirty- five, Thirty-nine, Forty-one, Forty-two, and Fifty. In Case No. 90-4799, finding the Respondent guilty of the violations of Section 468.402(1)(t), Florida Statutes (1989), as charged in the following counts of the Administrative Complaint: Counts Two, Five, Seventeen, Twenty-three, Twenty-six, Twenty-nine, Thirty-four, Thirty- six, Forty, Forty-three, and Fifty-one. In Case No. 90-4799, finding the Respondent guilty of the violations of Section 468.402(1)(b), Florida Statutes (1989), as charged in the following counts of the Administrative Complaint: Counts Three, Eighteen, Twenty- four, Twenty-seven, and Forty-four. In Case No. 90-4799, imposing the following penalties for the violations described above: An administrative fine in the amount of $400.00 for each of the 28 violations found above, for a total of administrative fines in the amount of $11,200.00. Revocation of the Respondent's license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of March 1993. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March 1993. APPENDIX The following are my specific rulings on the proposed findings of fact submitted by all parties. The following general observations are made in order to facilitate an understanding on the basis for the findings of fact that have been made as well as the basis for the findings of fact that have been rejected. There is no great dispute about most of the basic facts in these cases. There is quite a bit of dispute about numerous details, as well as disputes about what inferences should be drawn from the facts. In resolving these differences I have, for the most part, been more persuaded by the versions described by the Petitioner's witnesses than by the versions described by the Respondent and her witnesses. In resolving such differences I have especially considered such matters as any motive or bias of each witness, the apparent candor or lack of candor of each witness, the extent to which the testimony of each witness appeared to be logical or illogical, and the extent to which the evidence of each witness appeared to be consistent or inconsistent with other evidence in these cases. Findings proposed by Petitioner: Paragraph 1: Rejected as constituting conclusions of law, rather than proposed findings of fact. Paragraphs 2, 3, 4, 5, 6, 7, 8, 9, and 10: Accepted. Paragraphs 11 and 12: Accepted in substance, but with some details corrected. Paragraphs 13, 14, 15, and 16: Accepted. Paragraph 17: Accepted in substance. Paragraph 18: First sentence accepted; second sentence rejected as not supported by clear and convincing evidence. Paragraph 19: Accepted. Paragraph 20: Accepted. Paragraphs 21 and 22: Accepted in substance. Paragraphs 23, 24 and 25: Accepted. Paragraph 26: First sentence rejected as unnecessary details. Second sentence accepted. Paragraph 27: Accepted. Paragraph 28: Accepted in substance. Paragraph 29: Accepted. Paragraph 30: Accepted. Paragraph 31: Rejected as containing numerous inaccurate details. Some somewhat similar findings have been made. Paragraph 32: Accepted in substance. Paragraphs 33 and 34: Accepted in substance. Paragraph 35 First sentence accepted. First half of second sentence rejected as not supported by clear and convincing evidence. Second half of second sentence accepted. Paragraphs 36, 37, and 38: Accepted in substance. Paragraphs 39 and 40: Accepted. Paragraph 41: Accepted in substance. Paragraph 42: Accepted. Paragraph 43: Accepted in substance. Paragraph 44: Accepted Paragraph 45: Accepted. Paragraph 46: Accepted in substance. Paragraph 47: Rejected as not fully supported by the evidence and as, in any event, subordinate and unnecessary details. Paragraph 48: Accepted in substance. Paragraphs 49, 50, 51, 52, 53, and 54: Accepted. Paragraph 55: Accepted in substance. Paragraphs 56 and 57: Accepted. Paragraphs 58 and 59: Accepted that Mrs. Jackson paid to register herself and her daughter and to have Bill Daniels photograph her and her daughter. The remainder of these paragraphs are rejected as irrelevant details or as not supported by clear and convincing evidence. Mrs. Jackson was a difficult witness, both on direct examination and on cross-examination. She was often argumentative, unresponsive, rambling, and disjointed during her testimony. Her testimony was far from clear and was not convincing. Paragraphs 60, 61, and 62: Accepted in substance. Paragraph 63: Rejected as not fully supported by the record and as, in any event, irrelevant to the issues in this case. Paragraph 64: Accepted in substance, with additional details. Findings proposed by Respondent: With regard to the proposed findings of fact submitted by the Respondent, it is first noted that the Respondent's proposals are virtually impossible to address with specificity because, for the most part, they are comprised of summaries of testimony (testimony both favorable and unfavorable to the Respondent), rather than being statements of the specific facts the Respondent wishes to have found. In this regard it is perhaps sufficient to note that most of the Respondent's summaries of the testimony are essentially accurate summaries of the testimony at hearing, even where the summaries contain assertions that conflict with each other. As noted above, I have resolved most of those conflicts in favor of the versions put forth by the Petitioner's witnesses. Inasmuch as the Respondent has chosen to summarize testimony rather than make proposals of specific facts to be found, it would serve no useful purpose to embark upon a line-by-line discussion of all of the summaries. COPIES FURNISHED: E. Renee Alsobrook, Esquire Department of Professional Regulation Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles Tunnicliff, Esquire Department of Professional Regulation Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Gregory F. Esposito, Esquire Suite 9 8000 Wiles Road Coral Springs, Florida 33065 Anna Polk, Executive Director Board of Talent Agencies Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times relevant hereto, Donald C. Munafo was certified by the Department of Education and employed on continuing contract by the Pinellas County School Board as a physical education instructor at the 16th Street Middle School in Clearwater. He has been employed by the Pinellas County School Board for approximately 15 years. Munafo has been involved in photography for a number of years and has done professional photography for ten years as a sideline to his primary occupation as a school teacher. He is a member of Bay Photographic Association located in the Tampa Bay area, which is an affiliate of Florida Professional Photographers. In May 1984 Richard Norgrove, who also taught at 16th Street Middle School, formed Edventure Media, Inc., to provide himself and his wife with a tax shelter and to produce educational and training videos. Knowing Munafo to be a professional photographer, Norgrove consulted with him as to ideas on equipment Norgrove needed. After forming the corporation and making a few training films, Norgrove decided to produce a video of a "cat fight," which involves two females in brawl. He advertised for models to engage in a wrestling match and employed two who responded to his ad. Norgrove prepared a simple script and did the filming at his home. He requested Munafo to take some stills during the video filming to use to advertise copies of the cat fight for sale. To accommodate Norgrove, Munafo took still photographs of the models while Norgrove made the videotape of the girls tearing each others. clothes off and simulating a real fight. By the end of the video each girl was wearing only panties. This video was titled "The Dress." Shortly thereafter, Norgrove decided to make another cat fight video and again advertised for models. One of the girls answering the ad was Lisa Anderson. Norgrove again asked Munafo to take still shots while Norgrove made the videotape. Again Munafo agreed to help in the endeavor, knowing that the still shots would be used to promote the video and/or sold. Munafo received no compensation from Norgrove other than the cost to Munafo for supplies and for developing the pictures. During the taking of this video, which was titled "The Boyfriend," both of the models were reduced to complete nudity. Lisa Anderson was one of the girls involved in the video of "The Boyfriend." Lisa Anderson had answered Norgrove's ad by telephone, and they first met at a bar where Lisa was served alcoholic beverages. She had told Norgrove she was 23 years old and was anxious to make some money modeling and did not object to removing her clothes. Lisa subsequently signed a release stating that she was over 18 years old. As a matter of fact, Lisa was 17 when the video and subsequent photographs of her were taken. Lisa did not testify in these proceedings, but led Norgrove to believe she had been married twice and at the time the video was made was living with two men. One newspaper article (Exhibit 20) stated she was the mother of two children. Norgrove packaged "The Dress" and "The Boyfriend" on one cassette (Exhibit 8) and advertised it for sale in adult magazines under the title "Battling Beauties." He sold between 20 and 50 of these cassettes for approximately $60 each. Munafo took no part in promoting the cassette, mailing the cassettes, nor did he receive any percentage of the money Norgrove received for the sale of the cassettes. Following the filming of "The Boyfriend" Lisa called Norgrove several times to see if he had more jobs for her since she needed to make some money. Finally, Norgrove told her that he might be able to sell some nude photos of her to a publishing house but could not guarantee their sale. He offered to take the pictures and if they sold split the proceeds with her. Lisa agreed and Norgrove decided his sailboat would provide a good background location for the photo sessions. Again he requested Munafo to come along and take the photographs while he, Norgrove, ran the sailboat. At the appointed time they sailed out into open water where Lisa stripped and assumed various poses while Munafo took pictures. These pictures were admitted into evidence as Exhibits. Upon returning to shore, the three of them went to Munafo's house where Norgrove did another video of Lisa in the nude doing exercises. During the making of this video Munafo was downstairs and came up to the studio less than a minute before the video was completed. At this time Lisa was jumping on a small trampoline and Munafo suggested to Norgrove that he take some shots from the floor looking up. For the photos of Lisa taken in the sailboat, Munafo was again reimbursed only for the film and cost of developing the pictures he took. All told Eventure Media, Inc., paid Munafo less than $100.00 for the costs he incurred in shooting the pictures requested by Norgrove. Munafo's testimony was uncontradicted and corroborated by Norgrove that all Munafo expected to receive from his participation were his expenses and the expectation that he would meet a model he could later employ to pose for a figure study. Munafo is a serious photographer who participates in many of the competitions sponsored by photography groups, both local and statewide. Exhibit 16 was admitted as a copy of a figure study Munafo entered in a photo contest and took second place. In the interim the local police received information that Norgrove had been making pornographic videotapes and they alerted the United States Postal Inspectors. Their investigation revealed that Lisa Anderson was 17 years old at the time the videos and photographs were taken. 18 USC §2251, et seq., makes it a federal crime to use anyone under the age of 18 as a participant in a sexually explicit film or to transmit such film through the United States mail. After obtaining copies of the video cassettes and still photographs, the federal authorities obtained an indictment against Norgrove and Munafo and arrested them on March 4, 1985. The time of their arrest was the first inkling either had that Lisa Anderson was under the age of 18. News of the arrest of three Pinellas County school teachers (Norgrove's wife was also arrested) charged with distributing sexually explicit films involving minors received wide dissemination from the local press and, by reason of the implications of "kiddie-porn," the events leading to the trial in federal court and the results of that trial were closely followed and reported by the press. Prior to the commencement of the trial, the Norgroves negotiated a plea of guilty of conspiracy and received a lenient sentence. Munafo went to trial and was acquitted of all charges by the jury (Exhibit 17). Following the arrest of Munafo and the Norgroves, they were suspended by the School Board and hearings were requested. The Department of Education preferred charges to discipline their certificates based on the same allegations made by the School Board in their suspensions, and all cases were consolidated for hearing. Continuances were granted to await the outcome of the federal proceedings before conducting these administrative proceedings. Following the Norgroves negotiating a plea in the federal court trial, they withdrew their request for a Section 120.57(1), Florida Statutes, hearing and were dropped from these proceedings. No evidence was presented that Respondent showed explicit sexual films or pictures to other teachers as is alleged in the charging document by the Superintendent. Nor was any testimony presented to show that Respondent's effectiveness in the school system was seriously reduced by the publicity associated with his arrest, trial and subsequent acquittal. The primary, if not sole, basis for the disciplinary action proposed by the School Board and the Department of Education is whether the actions of Munafo in taking sexually explicit photographs of Lisa Anderson and another woman constitute immorality, misconduct in office, gross immorality or moral turpitude, or conduct which seriously reduces his effectiveness in the Pinellas County school system. The photographs which form the basis of these charges are similar to those published in adult magazines such as Penthouse, Hustler, Playboy, Cavalier, etc., which are transmitted through the United States mail and are displayed on the magazine racks of vendors of newspapers and magazines in drugstores, airports, bookstores, and newsstands open to the general public. Petitioner produced two witnesses to testify to the immorality of one who would take explicit sexual photographs. Neither of these witnesses is a professional photographer although one teaches photography in a Pinellas County school. He did not believe a teacher should be held to a higher moral standard respecting activities totally unassociated with the school than is a member of the general public, but his personal moral convictions would preclude him from taking such pictures. Petitioner's other witness, John F. Joyce, Ed.D., opined that it was immoral for a school teacher to take such photographs as were taken by Respondent. Dr. Joyce, however, did not think it immoral for a teacher to look at pornographic photographs in Hustler magazine with prurient interests or even to be editor of such a magazine. How the work of an editor, in deciding which I pornographic photographs will sell the most magazines and still be within the letter of the law so as to avoid prosecution or a ban of the sales in a magazine, can be all right while the mechanic (or artist), who opens the shutter of the camera to expose the film and record the pornographic pose is immoral, completely eludes me. Accordingly, little weight is accorded this opinion. Nor is the age of Lisa Anderson at the time these photographs were taken relevant to the charge of immorality. Respondent certainly thought he was taking a photograph of a woman over the age of 18; and such opinion was justified by the physical appearance of Lisa, by the model release form she signed (Exhibit 10) stating she was over 18, by her marital history, and by her reported living arrangements (with two men). The photographs taken on the sailboat (Exhibits 1-5) clearly fit the category of sexually explicit and are more pornographic than are the stills Munafo took during the videotaping of he cat fights. Accordingly, the outcome of these proceedings can be said to stand or fall on whether the taking of these photographs (Exhibits 1-5) constitutes immorality or gross immorality by a school teacher. In making this ultimate finding of fact it is significant that such photographs are protected by the First Amendment provided the model is over 18 that such photographs can be sent through the United States mail system without any violation of the law (again if the model is over 18) that the sole basis for the criminal charges preferred against this Respondent was the age of the model used that it would not be considered an offense involving moral turpitude or jeopardize any license they have if a lawyer, doctor, banker, or broker took such photographs that Munafo was acquitted of these criminal charges that in these criminal charges specific intent is not an element of the offense and that Munafo reasonably believed that Lisa Anderson was over 18 at the time these photographs were taken. Lisa Anderson had no apparent connection to the Pinellas County school system and none of the filming had any connection to a school or school system or in any way indicated the model was a minor. From these findings comes the ultimate finding of fact that taking these photographs of Lisa Anderson does not constitute immorality, gross immorality, or misconduct in office.
