METRO DADE COUNTY, CONSUMER PROTECTION DIVISION, PETITIONER,

v.

BUY WISE, INC., RESPONDENT

FERGUSON, Judge.

The question presented is whether intent to deceive is an element of a Dade County ordinance which prohibits misleading advertising. We hold that it is not and quash the order on review.

The Consumer Protection Division for Dade County received several complaints from individuals concerning an advertisement placed in a local newspaper by Buy Wise, Inc., listing for sale a remote-controlled RCA 20" color television for $157. The complainants reported that in response to the newspaper ad, they went to Miami-area Buy Wise stores to purchase the advertised set, but were told that the stores did not have any of the advertised televisions in stock. During an investigation conducted by a Consumer Protection inspector, Buy Wise eventually admitted that it never had any of the advertised televisions in any of its stores.

After an administrative hearing where evidence was presented by both Buy Wise and Dade County, the hearing officer found Buy Wise guilty of misleading advertising in violation of section 8A-108(a) of the Code of Metropolitan Dade County. Buy Wise ap pealed the ruling to the appellate division of the circuit court which reversed on a holding that Dade County failed to prove that Buy Wise intended to violate the ordinance. We hold that the circuit court departed from the essential requirements of law by requiring the petitioner to prove intent to deceive. See City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla.1982) (in certiorari review of an administrative agency action, the district court determines whether the circuit court applied the correct law).

Section 8A-108(a) of the Code of Metropolitan Dade County provides as follows:

It is unlawful for any person, firm, corporation or association, or any employee thereof with intent directly or indirectly to dispose of real or personal property or to perform services, professional or otherwise, or any thing of any nature whatsoever, or to induce the public to enter into any obligation relating thereto, to make or disseminate or cause to be made or disseminated before the public in this county, in any newspaper or other publication, or any advertising device, or by public outcry or proclamation, or by any other manner or means whatever, any assertion, representation or statement of fact, concerning such real or personal property or services, professional or otherwise, or concerning any circumstances or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.-

(Emphasis added).

Under section 8A-108(a), the County is not required to prove an intent to deceive; the statute requires the County to prove only that the defendant had an intent to sell, or otherwise dispose of property, by representations which were known, or should have been known, to be untrue or misleading. A violation of the ordinance, therefore, may rest on a grossly negligent misrepresentation as well as a misrepresentation made with scienter. See Love v. State, 584 So. 2d 645 (Fla. 3d DCA 1991) (where statute clearly does not require scienter, court may not require State to prove that element).

Certiorari granted.