STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA BRADSHAW, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4012

) PASSPORT INTERNATIONALE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by telephone on November 8, 1994, before Donald R. Alexander, a Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Barbara Bradshaw, pro se

1169 La Mesa Avenue

Winter Springs, Florida 32708

For Respondent: Julie Johnson McCollum

2441 Bellevue Avenue

Daytona Beach, Florida 32114

For Department Robert G. Worley, Esquire of Agriculture: 515 Mayo Building

Tallahassee, Florida 32399-0800 STATEMENT OF THE ISSUE

The issue in this case is whether petitioner's claim against the bond posted by respondent with the Department of Agriculture and Consumer Services should be granted.

PRELIMINARY STATEMENT

This matter began on October 29, 1993, when respondent, Passport Internationale, Inc., requested a formal hearing to contest a claim against its bond filed by petitioner, Barbara Bradshaw. The bond was posted with the Department of Agriculture and Consumer Services. Thereafter, the matter was referred by the agency to the Division of Administrative Hearings on July 15, 1994, with a request that a Hearing Officer be assigned to conduct a hearing.

After efforts to settle the case were unsuccessful, by notice of hearing dated October 19, 1994, a final hearing by telephone was scheduled on November 8, 1994. At final hearing, petitioner testified on her own behalf. Also, petitioner's composite exhibit 1 was received in evidence. Respondent was

represented by Julie Johnson McCollum, the manager of respondent's successor corporation, and a former officer of respondent. Also, she testified on its behalf.

There is no transcript of hearing, and neither party has elected to file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Barbara Bradshaw, has filed a claim against the bond in the amount of $435.40 alleging that Passport failed to perform on certain contracted services.

   
   

2. For touring a timeshare resort in early 1992, petitioner received a travel certificate as a gift. After paying a $179.00 validation fee, the certificate entitled the holder to a five day, four night stay in the Bahamas. The certificate carried the name, address and logo of Passport International Express, a fictitious name then being used by Passport.

   
   

3. Passport's assets and liabilities were assumed by Incentive Internationale Travel, Inc. (Incentive) in June 1991, and the corporation was dissolved sometime in 1991. Even so, Incentive continued to sell Passport's travel certificates at least through April 1992, when petitioner received her certificate. Therefore, the travel services described in those certificates were protected by Passport's bond.

   
   

4. To validate her certificate, on April 17, 1992, petitioner sent Passport International Express a check in the amount of $179.00. Thereafter, she upgraded her accommodations, purchased additional land accommodations, and paid for port taxes. These items totaled $242.00, and were paid by check sent to Incentive on May 26, 1992. Throughout this process, petitioner assumed she was still dealing with Passport since she was never formally advised that Passport had been dissolved or that Incentive had assumed all of Passport's obligations.

   
   

5. Petitioner was scheduled to depart on her trip on July 24, 1992. On July 15, 1992, Incentive mailed her a form letter advising that it was necessary to "temporarily delay" her trip due to "circumstances beyond (its control.)"

   She was offered several options, including a total refund of her money to be made in January 1993. She opted for a refund. To date, however, nothing has been paid, and Incentive is now subject to bankruptcy court protection.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

7. Respondent is a seller of travel within the meaning of Subsection 559.927(1)(a), Florida Statutes. There, a seller of travel is defined in part as follows:

   
   

   1. "Seller of travel" means any person . . . purporting to maintain a business location in this state who offers for sale, directly or indirectly, at wholesale or retail . . . travel certificates in exchange for a fee, commission, or other valuable considerations.

      
      

      As a seller of travel, Passport was required to register with the Department, and to file a performance bond conditioned on the performance of contracted services. Subsections 559.927(2) and (10(b), Florida Statutes.

      
      

8. Any traveler may file a claim against the bond after an alleged violation of a contract. Subsection 559.927(10)(b)2., Florida Statutes. Claims may be paid if the traveler proves by a preponderance of the evidence that she was "injured by the fraud, misrepresentation, or financial failure of the seller of travel," or if the seller fails to perform the "contracted services." Subsection 559.927(10)(b)3., Florida Statutes.

   
   

9. The evidence shows that petitioner was injured by the "financial failure of the seller of travel," and thus she is entitled to be reimbursed from the bond. In so ruling, the undersigned notes that petitioner purchased a travel certificate from Passport who guaranteed the performance of travel services by filing a bond. When Incentive assumed the obligations of Passport, and agreed to fulfill the travel services previously guaranteed by Passport, it stood in Passport's stead, and any damages resulting from Incentive's breach of contract should be covered by Passport's bond. In this case, Incentive suffered a "financial failure" which prevented it from performing the contracted services. Therefore, the claim should be approved in the amount of $421.00, which amount is net of postage and copying costs ($14.40) claimed by petitioner.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be

granted and that she be reimbursed from the bond in the amount of $421.00.

DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 13th day of December, 1994.

COPIES FURNISHED:

Barbara Bradshaw 1169 La Mesa Avenue

Winter Springs, Florida 32708

Michael J. Panaggio 2441 Bellevue Avenue

Daytona Beach, Florida 32114

Robert G. Worley, Esquire

515 Mayo Building

Tallahassee, Florida 32399-0800

Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard D. Tritschler, Esquire The Capitol, PL-10

Tallahassee, Florida 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Agriculture and Consumer Affairs written exceptions to this Recommended Order. They should be filed with the Department of Agriculture and Consumer Affairs within twenty days from date of this Recommended Order.

Docket for Case No: 94-004012

Orders for Case No: 94-004012