STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

H. FLEISCHER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4018

) PASSPORT INTERNATIONALE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by telephone on November 7 and 8, 1994, before Donald R. Alexander, a Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: H. Fleischer, pro se

15 Wind Ridge Drive

North Caldwell, New Jersey 07006

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, H. Fleischer. 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. A continued hearing was held on November 8, 1994. At final hearing, petitioner and his wife testified. 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.

A transcript of hearing was filed on December 8, 1994. 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, H. Fleischer, has filed a claim against the bond for $648.95 alleging that Passport failed to perform on certain contracted services.

   
   

2. On an undisclosed date in 1991, petitioner responded to a newspaper advertisement promoting a five-day, four-night cruise to the Bahamas for $99.00 per person. After calling a toll-free number, petitioner was told that in order to take the trip, he must purchase a video for $198.00 plus $11.95 postage, or a total of $209.95. Petitioner agreed to purchase the video in order to take advantage of the trip.

   
   

3. The advertisement was being run by a telemarketeer in Tennessee who had been authorized to sell Passport's travel certificates. As such, it was acting as an agent on behalf of Passport. In June 1991, the assets and liabilities of Passport were assumed by Incentive Internationale Travel, Inc. (Incentive).

   Even so, any travel described in certificates sold after that date under the name of Passport was still protected by Passport's bond.

   
   

4. Within seven days after receiving the video and other materials, which carried the name, address, logo and telephone number of Passport, petitioner returned the same to the telemarketeer along with a request for a refund of his money. When he did not receive a refund, he filed a complaint with the Department.

   
   

5. In response to a Department inquiry, in December 1991 Incentive declined to issue a refund on the ground the video was purchased from a Tennessee firm, and not Passport, and Passport had never received any money from the telemarketeer. Incentive offered, however, to honor the travel certificate by allowing petitioner to purchase a trip to the Bahamas under the same terms and conditions as were previously offered.

   
   

6. On July 6, 1992, petitioner accepted Incentive's offer and paid that firm $439.00 for additional accommodations, meals, fees and taxes. Shortly after July 24, 1992, petitioner received a letter from Incentive advising that his trip had been cancelled and that the firm had filed for bankruptcy protection. To date, petitioner has not received a refund of his money.

   
   

   CONCLUSIONS OF LAW

   
   

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

8. 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.

      
      

9. 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 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., Florida Statutes.

   
   

10. The evidence shows that petitioner was injured by the "financial failure of the seller of travel," and thus he is entitled to be reimbursed from the bond. In so ruling, the undersigned notes that petitioner purchased a travel certificate from an agent of Passport, who guaranteed the performance of the 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. Here, Incentive suffered a "financial failure" within the meaning of the law and could not perform the contracted services. Therefore, the claim should be approved in the amount of $648.95. The fact that Passport's agent did not account for a part of these funds is immaterial to a resolution of the issues.

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 reimbursed $648.95 from the bond.

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:

H. Fleischer

15 Wind Ridge Road

North Caldwell, NJ 07006

Michael J. Panaggio 2441 Bellevue Avenue

Daytona Beach, FL 32114

Robert G. Worley, Esquire

515 Mayo Building Tallahassee, FL 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: 94-004018

Orders for Case No: 94-004018