STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANANTA M. DASGUPTA, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4017

) PASSPORT INTERNATIONALE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by telephone on November 16, 1994, before Donald R. Alexander, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ananta M. Dasgupta, pro se

1009 East Hamilton Avenue Eau Claire, Wisconsin 54701

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, Ananta M. Dasgupta. 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 16, 1994. At final hearing, petitioner testified on his own behalf. Also, petitioner's 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, Ananta M. Dasgupta, has filed a claim against the bond in the amount of $531.00 alleging that Passport failed to perform on certain contracted services.

   
   

2. In response to a mail offer, in March 1987 petitioner purchased a travel certificate from VIP Vacations (VIP), a Miami Beach telemarketeer that was reselling travel certificates previously obtained from Passport. As such, VIP was acting as an agent on Passport's behalf. The holder of the certificate was entitled to a vacation package for two persons to Hawaii for a cost of

   $488.00. The travel certificate carried the name, address and logo of Passport and provided that all transportation authorized by the certificate would be fulfilled by Passport. The certificate expired in one year, or at the end of March 1988.

   
   

3. After receiving the certificate, petitioner filled out the reservation request form with three requested travel dates (the fourth week of December 1987, 1988 or 1989) and returned it to VIP in November 1987 along with a $50.00 deposit. The form and deposit were forwarded by VIP to Passport. When petitioner could not secure travel on his first selected date, and he was told the certificate expired at the end of March 1988, he requested a refund of his money. Passport then agreed to extend the certificate to December 1988 but advised petitioner it could not confirm his reservations for the second requested travel date during the fourth week of December 1988. When petitioner continued to pursue his demand for a refund, Passport declined to refund anything other than the $50.00 deposit saying the trip was solicited by VIP, and not Passport, and in any event, the certificate had by then expired.

   
   

4. Finding Passport's response to his demand for a refund to be unacceptable, petitioner filed an action against Passport in a Wisconsin circuit court, and on April 6, 1990, he obtained a judgment in the amount of $531.00.

   It is undisputed that the judgment resulted from a cause of action involving Passport's activities as a seller of travel. The judgment forms the basis for petitioner's claim.

   
   

   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, and to file a performance bond conditioned on the performance of all contracted services. Subsections 559.927(2) and (10)(b), Florida Statutes.

      
      

7. Subsection 559.227(10)(b)2., Florida Statutes, authorizes any traveler to file a claim against a bond. The law provides that a claim may be paid if a traveler has obtained a judgment "in any suit for actual damages, including reasonable attorney's fees, resulting from a cause of action involving the registrant's activities as a seller of travel." Subsection 559.927(10)(b)3., Florida Statutes.

   
   

8. The evidence shows that petitioner has secured a judgment against Passport in the amount of $531.00 related to its "activities as a seller of travel." This being so, petitioner's claim should be approved in the amount of the judgment.

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 he be paid $531.00 from the bond.

DONE AND ENTERED this 9th 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 9th day of December, 1994.

COPIES FURNISHED:

Ananta M. Dasgupta

1009 East Hamilton Avenue Eau Claire, Wisconsin 54701

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: 94-004017

Orders for Case No: 94-004017