STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by telephone on November 7, 1994, before Donald R. Alexander, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dorothy L. Castellano, pro se

3821 S. E. 44th Street Ocala, Florida 34480

For Respondent: Michael J. Panaggio

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, Dorothy L. Castellano. 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 7, 1994. At final hearing, petitioner testified on her own behalf. Also, petitioner's exhibit 1 was received in evidence. Respondent was represented by

Michael J. Panaggio, the president of respondent's successor corporation. Also, he 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, Dorothy L. Castellano, has filed a claim against the bond in the amount of $59.00 alleging that Passport failed to perform on certain contracted services.

   
   

2. The facts giving rise to this controversy are not in dispute. In late 1989, petitioner received a promotion offer from Budget Rent A Car for a "free" one-day cruise for two persons from Fort Lauderdale to Freeport (Bahamas Islands) on Discovery Cruise Lines. The travel was to be arranged by Passport and required petitioner to pay Passport a $40.00 fee, plus $19.00 in port taxes, or a total of $59.00. She did so on March 6, 1989, as evidenced by a money order made payable to Passport International Express, a ficticious name then used by Passport.

   
   

3. After it received the money, Passport issued two travel certificates to petitioner. On the face of each certificate was the notation "Not valid after 08/30/90." This meant that petitioner had to use the certificates no later than August 30, 1990. Even so, this gave petitioner more than a year in which to take the trip. Petitioner does not deny that she was aware of this restriction. According to Passport, the expiration date was controlled by Discovery Cruise Lines and thus it had no authority to extend the life of the certificates. No evidence was adduced regarding the refund policy of Passport.

   
   

4. Petitioner eventually made reservations to use the certificates in July 1990. On June 6, 1990, she broke her ankle and was temporarily disabled. As a consequence, she could not travel before the certificates expired. Although petitioner contacted both Passport and Discovery Cruise Lines and requested either a refund of her money or an extension of time in which to use the certificates, her request was denied. Therefore, petitioner was unable to use the certificates. She then filed a claim with the Department seeking a refund of her money.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. 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, Subsection 559.927(2), F. S., and to file a performance bond conditioned on the performance of all contracted services. Subsection 559.927(10)(b), F. S.

      
      

7. Any traveler may file a claim against the bond within 120 days after an alleged violation of a contract. Subsection 559.927(10)(b)2., F. S. There is no contention that the claim was untimely. Claims may be paid if the traveler proves by a preponderance of the evidence that he or she was "injured by the fraud, misrepresentation, or financial failure of the seller of travel," or that the seller of travel failed to perform the "contracted services." Subsection 559.927(10)(b)3., F. S.

   
   

8. The evidence does not show that petitioner was injured by "fraud, misrepresentation, or financial failure of the seller of travel" or that Passport failed to perform the contracted services. Rather, the evidence shows clearly that the travel certificates would have been honored by Passport had they been timely used. Although petitioner became medically incapacitated three months before the certificates expired, and was unable to travel by the expiration date, unfortunately Passport had no legal obligation to extend their use. Therefore, the claim must be denied.

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

denied.

DONE AND ENTERED this 28th day of November, 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 28th day of November, 1994.

COPIES FURNISHED:

Dorothy L. Castellano 3821 S. E. 44th Street Ocala, Florida 34480

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, FL 32399-0810

Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, FL 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: 94-004014

Orders for Case No: 94-004014