STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FAYE C. TERRY, )
)
Petitioner, )
)
vs. ) CASE NO. 94-4042
) PASSPORT INTERNATIONALE, INC., )
)
Respondent. )
)
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: Faye C. Terry, pro se
Post Office Box 1092
Laurens, South Carolina 29360
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, Faye C. Terry. 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 18, 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:
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, Faye C. Terry, has filed a claim against the bond in the amount of $915.00 alleging that Passport failed to perform on certain contracted services.
In August 1990, petitioner purchased a travel certificate entitling the holder to a five-day, four-night vacation package to the Bahamas for $329.00. The certificate was purchased from United Marketing Group (United), an Ohio telemarketeer authorized to sell the certificates on Passport's behalf. The certificate carried the name, logo, address and telephone number of Passport.
The certificate purchased by petitioner expired in August 1991. When petitioner discovered she could not use the certificate by the expiration date, on August 26, 1991, she paid a $50.00 fee to Passport to extend the life of the certificate for an additional year, or until August 30, 1992.
In June 1991, all of the assets and liabilities of Passport were acquired by Incentive Internationale Travel, Inc. (Incentive), a corporation having the same address, telephone number, owners, and personnel as Passport.
In addition, Passport's status as a corporation was dissolved at a later date in 1991. Even so, Incentive continued to fulfill all travel certificates sold by Passport, and all travel described in those certificates was protected by Passport's bond.
Petitioner originally requested to use her travel certificate in August 1991 and sent Passport a $90.00 reservation deposit in conjunction with her request. When she was unable to travel on that date due to a personal conflict, she requested to use her certificate in June 1992. She was told that no accommodations were available. Instead, she was booked to travel in August 1992. Accordingly, on July 12, 1992, she paid Incentive for the cost of an additional traveler (her mother) to accompany her on the trip plus extra accommodations in Fort Lauderdale and certain fees and taxes. Her total payment to Passport and its successor now totaled $915.00.
In a form letter dated July 24, 1992, or just twelve days after the additional monies were paid by petitioner, Incentive advised her that it had filed for bankruptcy that same date and that her trip "has been cancelled." She was told that the bankruptcy court would send her a form to file a claim for a refund. To date, she has received no refund of her money.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.
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:
"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.
Any traveler may file a claim against the bond for 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 if the seller of travel fails to perform the "contracted services." Subsection 559.927(10)(b)3., Florida Statutes.
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 contracted with Passport to provide certain services, and a bond was posted by Passport conditioned on the performance of those contracted services. When Incentive assumed Passport's responsibilities under the contract, it stood in Passport's stead, and any damages resulting from Incentive's breach of the contract should be covered by Passport's bond. In this case, Incentive suffered "financial failure," and thus it was unable to perform the contracted services. Therefore, the claim should be approved in the amount of $915.00.
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 she be paid $915.00 from the bond.
DONE AND ENTERED this 12th 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 12th day of December, 1994.
COPIES FURNISHED:
Faye C. Terry
Post Office Box 1092
Laurens, South Carolina 29360
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.
Issue Date | Proceedings |
---|---|
Feb. 23, 1995 | Final Order filed. |
Dec. 12, 1994 | Recommended Order sent out. CASE CLOSED. Telephonic hearing held 11-7-94. |
Nov. 17, 1994 | Department of Agriculture And Consumer Services Statement of Position filed. |
Nov. 14, 1994 | 2/Letters to DRA from R. Johnson (RE: prefiled exhibits/tagged) filed. |
Nov. 07, 1994 | CASE STATUS: Hearing Held. |
Oct. 18, 1994 | Order sent out. (telephonic final hearing set for 11/7/94; 11:00am) |
Oct. 18, 1994 | Case No/s 94-4006 thru 94-4042: unconsolidated Per HO request. |
Sep. 27, 1994 | Case No/s:94-4042 unconsolidated. |
Sep. 23, 1994 | Order sent out. (Case Reopened) |
Sep. 22, 1994 | Order sent out. CASE CLOSED, petitioners failed to file written response indicating they desired a hearing regarding their claims. |
Sep. 22, 1994 | Order of Consolidation sent out. (Consolidated cases are: 94-4023, 94-4024, 94-4026, 94-4027, 94-4033, 94-4038, 94-4042, 94-4045) |
Sep. 22, 1994 | Case No/s 94-4007 thru 94-4045: unconsolidated. |
Sep. 06, 1994 | Due to the closing of the lowest consolidated case number, all future pleadings will be docketed and filed in the next to the lowest consolidate DOAH Case No. 94-4007. |
Aug. 02, 1994 | Order sent out. (Case Nos. 94-4006 through 94-4045 are preliminarily consolidated by DRA; filing instructions re: available hearing dates,addresses, etc. given) |
Jul. 28, 1994 | Motion for Additional Time to Respond to Initial Order and to Consolidate Cases for Discovery and Prehearing Matters filed. |
Jul. 25, 1994 | Initial Order issued. |
Jul. 15, 1994 | Agency referral letter; Request for Formal Hearing, letter form; Notice of Rights: Administrative Procedure Act Form (request for informal hearing) filed. |
Issue Date | Document | Summary |
---|---|---|
Feb. 22, 1995 | Agency Final Order | |
Dec. 12, 1994 | Recommended Order | Bond covered claims of dissolved company where succesor assumed all libilities of predecessor. |