STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLOBAL TOURING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-5096

) DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October 28, 1994, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Vanderkay

Jennifer Pickens Global Touring, Inc.

1150 Southwest 10th Avenue, Suite 204W Pompano Beach, Florida 33069

For Respondent: Jay S. Levenstein, Esquire

Senior Attorney

Department of Agriculture and Consumer Services

Room 515 Mayo Building Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to an exemption from the requirements of Section 559.927, Florida Statutes, under subsection (12)(h) of the statute.

PRELIMINARY STATEMENT

By letter dated August 10, 1994, the Department of Agriculture and Consumer Services (hereinafter referred to as the "Department") notified Petitioner of its intention to deny Petitioner's application for a statement certifying Petitioner's exemption from the requirements of Section 559.927, Florida Statutes, under subsection (12)(h) of the statute. Petitioner requested a formal administrative hearing on the Department's proposed denial of its application. On September 14, 1994, the case was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal administrative hearing Petitioner had requested.

At the hearing, which was held on October 28, 1994, each party presented the testimony of one witness. Robert Vanderkay, one of Petitioner's representatives in this proceeding, testified on behalf of Petitioner. Gloria Van Treese, Chief of the Department's Bureau of Consumer Protection, testified on behalf of the Department. The only other evidence presented at hearing was Petitioner's Exhibits 1 through 10, which were admitted without objection.

At the close of the evidentiary portion of the hearing, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than thirty days following the Hearing Officer's receipt of the hearing transcript. The Hearing Officer received the hearing transcript on November 4, 1994.

Petitioner filed a post-hearing submittal on November 28, 1994. Appended to its post-hearing submittal was what Petitioner described in the submittal as "a directory list printed out from [Petitioner's] computer showing that [Petitioner] applied for another ARC number on February 28, 1992." Inasmuch as this document was not offered and received into evidence at hearing, the Hearing Officer has not relied on it making any findings of fact or conclusions of law in the instant case. See Trujillo v. Southern Wine & Spirits, 525 So.2d 481,

483 (Fla. 1st DCA 1988)(error for workers' compensation deputy commissioner to rely on deposition that was not admitted into evidence at hearing).

The Department filed its post-hearing submittal on December 5, 1994. On December 12, 1994, Petitioner filed a written response to the Department's post- hearing submittal. Because such written response is an unauthorized pleading, the Hearing Officer has not considered it.

The findings of fact proposed by the parties in their post-hearing submittals have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. Global Touring, Inc., is in the wholesale travel business.

   
   

2. It sells Australia and New Zealand travel packages to travel agencies.

   
   

3. Jennifer Pickens is Global Touring, Inc.'s sole shareholder and its President.

   
   

4. Pickens has been in the travel business in Broward County, Florida, since 1983, when she started her own travel agency, Global Travel Service, which she operated as a sole proprietorship.

   
   

5. At the time, the Air Traffic Conference (hereinafter referred to as the "ATC") had an airline ticket purchase and payment program for participating travel agents.

   
   

6. In September of 1983, Pickens contracted with the ATC to participate in its program. She was given an ATC Agency Code Number (618310) and placed on the official ATC Agency List.

7. Approximately a year later, Pickens began a wholesale travel operation, Global Touring Service, which sold tours to Australia and New Zealand.

   
   

8. Global Touring Service and Global Travel Service operated out of the same office.

   
   

9. Pickens used her ATC Agency Code Number to write airline tickets for both operations.

   
   

10. Effective the close of business on December 30, 1984, the ATC terminated its airline ticket purchase and payment program for travel agents. The ATC program, however, was replaced by a similar program operated by the Airlines Reporting Corporation (hereinafter referred to as the "ARC").

    
    

11. Travel agents on the official ATC Agency List were given an opportunity, at their option, to be placed on the official ARC Agency List "in substantially the same status as that agent st[ood] on the ATC list on December 30[, 1984,]" by entering into an agreement with the ARC to participate in its replacement program.

    
    

12. Pickens opted to participate in the program. She was assigned an ARC Agency Code Number and placed on the official ARC Agency List.

    
    

13. On November 20, 1985, Pickens incorporated her business enterprises. She created one corporate entity, Jennifer R. Pickens Travel, Inc., with two operating divisions: Global Travel Service and Global Touring Service. The newly formed corporation continued to operate under the contract Pickens had entered into with the ARC.

    
    

14. In 1986, Jennifer R. Pickens Travel, Inc., purchased another travel agency, Lighthouse Travel Services.

    
    

15. Jennifer R. Pickens Travel, Inc., assumed Lighthouse Travel Services' contract with the ARC and Lighthouse Travel Services' ARC Agency Code Number and it cancelled the ARC agreement under which it had been conducting business prior to its purchase of Lighthouse Travel Services.

    
    

16. Lighthouse Travel Services and Global Travel Service were combined into one retail travel operating division bearing the name of the former.

    
    

17. In December of 1991, Jennifer R. Pickens Travel, Inc., changed its name to Global Touring, Inc., and eliminated its retail travel operating division. Since that time, it has engaged only in the wholesale travel business.

    
    

18. On or about March 1, 1992, Global Touring, Inc., sold the assets of its former retail travel operating division, including its ARC contract and ARC Agency Code Number, to YAM, Inc.

    
    

19. Following the sale, Global Touring, Inc., sought to enter into another contract with the ARC and obtain a new ARC Agency Code Number. Because the paperwork Global Touring, Inc., initially submitted to the ARC was lost, it was not until on or about December 9, 1992, that Global Touring, Inc., entered into such a contract and received a new ARC Agency Code Number (10-53349-3).

    
    

20. The contract is still in effect.

21. Since its inception, with the exception of the period from on or about March 1, 1992, to on or about December 9, 1992, Global Touring, Inc., has continuously operated under a contract with the ARC.

    
    

22. While it has undergone a name change, it has remained under the ownership and control of the same person, Jennifer Pickens, during the entire time that it has had a contractual relationship with the ARC.

    
    

23. Earlier this year, Global Touring, Inc. submitted to the Department an application for a statement certifying that, based upon the total number of years it has contracted with the ARC, it is exempt from the requirements of Section 559.927, Florida Statutes.

    
    

24. Pickens, who prepared the application, failed to sign it.

    
    

25. In the application, she asserted that Global Touring, Inc., had been "a member of ARC since: 09/14/83," holding "ARC Number 618310."

    
    

26. The Department preliminarily determined to deny the application.

    
    

27. In its letter to Pickens advising her of its preliminary determination (hereinafter referred to as the "Notice of Proposed Denial"), the Department gave the following reasons for its proposed action:

    
    

    1. Application for exemption unsigned, with wrong data;

       2) ARC approval 10-53349-3, made 12/9/92 is less than 3 years.

       
       

28. Such proposed action is consistent with the Department's practice of granting exemptions under subsection (12)(h) of Section 559.927, Florida Statutes, only to those sellers of travel who are able to show that they have an agreement with the ARC which has been in effect for at least the immediately preceding three years.

    
    

29. Pickens responded to the Department's advisement with a letter of her own, the body of which read as follows:

    
    

    We wish to apply for a Formal Procedure Hearing.

    
    

    We applied for an exemption on July 22, 1994 and it seems that the reviewer completely ignored all the enclosures. We have been in the travel business since 1983. We took over

    Lighthouse Travel in 1985 and had the ARC number 618310 for seven years until selling Lighthouse Travel in 1992 and allowing the ARC number to remain with that part of the business.

    
    

    In 1992, after having our application lost, we again became members of ARC, and all of the above under the same company, Jennifer R. Pickens Travel Inc. which changed its name in 1991 to Global Tour- ing, Inc. In the interim we have become one of

    the 10 largest American Wholesalers to Australia and New Zealand.

    Our company can obviously prove an ARC relationship for 3 years (actually 11 years) and a history of selling travel for the same period.

    
    

    We therefore request an exemption as per our submis- sion and inasmuch as a formal hearing seems to be the procedure, we hereby request such a hearing.

    
    

30. The letter was dated August 25, 1994, and signed by Pickens in her capacity as the President of Global Touring, Inc.

    
    

31. After receiving Pickens' letter, the Department referred the instant matter to the Division of Administrative hearings.

    
    

    CONCLUSIONS OF LAW

    
    

32. Section 559.927, Florida Statutes, imposes certain requirements on "sellers of travel" in the State of Florida.

    
    

33. According to subsection (1)(a) of Section 559.927, Florida Statutes, a "seller of travel" is:

    
    

    any resident or nonresident person, firm, corporation, or business entity maintaining or purporting to maintain a business location or branch office in this state who offers for sale directly or indirectly, at wholesale or retail, prearranged travel, tourist-related

    services, or tour-guide services for individuals or groups, through vacation or tour packages,

    or through lodging or travel certificates in exchange for a fee, commission, or other valuable consideration. The term includes any business entity offering membership in a travel club or travel services for an advance fee or payment, even if no travel contracts or certificates or vacation or tour packages are sold by the business entity.

    
    

34. Subsection (12)(h) of Section 559.927, Florida Statutes, exempts from the requirements of the statute "[p]ersons directly issuing airline tickets who have contracted with the Airlines Reporting Corporation for 3 years or more under the same ownership and control."

    
    

35. The Department is charged with the responsibility of administering and enforcing the provisions of Section 559.927, Florida Statues.

    
    

36. In discharging its responsibility, the Department has adopted rules pursuant to the rulemaking procedures of Section 120.54, Florida Statutes, implementing Section 559.927, Florida Statues.

    
    

37. Among these rules is Rule 5J-9.0015(2), Florida Administrative Code, which defines the phrase "same ownership and control" used in subsection (12)(h) of Section 559.927, Florida Statutes, as follows:

    
    

    1. If a corporation, at least 51 percent

       of the stock or shares of the business has been

       held by the same person or persons for three consecutive years; or

    2. If a partnership, at least 51 percent of the business interest has been held by the same person or persons for three consecutive years.

    
    

    None of the other language used in subsection (12)(h) of Section 559.927, Florida Statutes, including the phrase "3 years or more," is defined in the Department's rules.

    
    

38. Petitioner is seeking from the Department a written acknowledgment of its entitlement to an exemption under subsection (12)(h) of Section 559.927, Florida Statutes.

    
    

39. As an applicant for such a letter of exemption from the Department, it "carries the 'ultimate burden of persuasion' of entitlement." Florida Department of Transportation v. J.W.C., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981). It need address, however, only those entitlement issues raised in the Department's Notice of Proposed Denial. See Woodholly Associates v. Department of Natural Resources, 451 So.2d 1002 (Fla. 1st DCA 1984).

    
    

40. In its Notice of Proposed Denial, the Department indicated that it intended to deny Petitioner's application on the following grounds:

    
    

    1. Application for exemption unsigned, with wrong data;

       2) ARC approval 10-53349-3, made 12/9/92 is less than 3 years.

       
       

41. Although Petitioner's application may have been incomplete at the time the Department issued its Notice of Proposed Denial, the application has since been supplemented, clarified and modified by: Pickens' signed letter dated August 25, 1994; the sworn testimony and documentary evidence that Petitioner presented at hearing: and the post-hearing submittal it filed. As a result, any deficiencies in Petitioner's application that may have previously existed have been remedied and there is now no reason for the Department not to determine whether Petitioner is entitled to the exemption Petitioner claims in its application. See Wistedt v. Department of Health and Rehabilitative Services, 551 So.2d 1236 (Fla. 1st DCA 1989).

    
    

42. The evidence adduced at hearing establishes that Petitioner has contracted with the ARC for a total of more than three years and that at all times that it has had a contractual relationship with the ARC, it has been owned and controlled by the same person, Pickens, who has held 100 percent of the shares of the business since Petitioner's creation as a corporate entity on November 20, 1985, or, to use the language employed in Rule 5J-9.0015(2), Florida Administrative Code, for more than "three consecutive years."

    
    

43. Petitioner therefore has met its burden of demonstrating that it has "contracted with the Airlines Reporting Corporation for 3 years or more under the same ownership and control," as required by subsection (12)(h) of Section 559.927, Florida Statutes.

    
    

44. That Petitioner has not contracted with the ARC for the past three or more consecutive years does not provide the Department with a basis upon which to reach a contrary conclusion.

45. To hold otherwise would require the Department to add qualifying language to subsection (12)(h) of Section 559.927, Florida Statutes, that the Legislature, by all appearances, intentionally omitted. This the Department may not do. 1/ See Chaffee v. Miami Transfer Company, Inc., 288 So.2d 209, 215 (Fla. 1974); Hialeah, Inc., v. B & G Horse Transportation, Inc., 368 So.2d 930 (Fla. 3d DCA 1979).

    
    

46. In subsection (12)(h) of Section 559.927, Florida Statutes, the Legislature has provided that, to qualify for an exemption thereunder, sellers of travel have to have contracted with the ARC for "3 years or more," not "3 consecutive years or more."

    
    

47. When the language used in subsection (12)(h) of Section 559.927, Florida Statutes, is compared with the language used elsewhere in the statute, in particular subsection (10)(b)5, which provides that a seller of travel otherwise required to obtain a performance bond may be exempted from such requirement if, among other things, it "has had 5 or more consecutive years of experience as a seller of travel in Florida," it becomes apparent that the "3 years or more" referenced in subsection (12)(h) need not be "consecutive" years.

    
    

48. The presence of the modifier "consecutive" in subsection (10)(b)5 of Section 559.927, Florida Statutes, and its absence from subsection (12)(h) of the statute is compelling evidence that the Legislature did not intend for sellers of travel who have contracted with the ARC for a total of 3 years to be denied an exemption under subsection (12)(h) simply because the 3 years they have contracted with the ARC have not been "consecutive" years. See Myers v. Hawkins, 362 So.2d 926, 929 (Fla. 1978); Florida State Racing Commission v. Bourquardez, 42 So.2d 87, 89 (Fla. 1949); Department of Professional Regulation, Board of Medical Examiners v. Durani, 455 So.2d 515, 518 (Fla. 1st DCA 1984); Ocasio v. Bureau of Crimes Compensation Division of Workers' Compensation, 408 So.2d 751, 753 (Fla. 3d DCA 1982); U.S. v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972).

    
    

49. The Department must give effect to this legislative intent. See In Re Order on Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender, 561 So.2d 1130 (Fla. 1990); State v. Webb, 398 So.2d 820, 824-25 (Fla. 1981).

    
    

50. Accordingly, it may not deny the exemption for which Petitioner has applied on the ground that Petitioner has not contracted with the ARC for 3 or more consecutive years.

    
    

51. Because Petitioner has met its burden of proving that it has "contracted with the Airlines Reporting Corporation for 3 years or more under the same ownership and control," the Department should issue a letter acknowledging that Petitioner is exempt from the requirements of Section 559.927, Florida Statutes, pursuant to subsection (12)(h) of the statute.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department enter a final order granting Petitioner's application for a letter of exemption pursuant to Section 559.927, Florida Statues.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1994.

STUART M. LERNER

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 27th day of December, 1994.

ENDNOTE

1/ In furtherance of its attempt to convince the Hearing Officer that he should recommend adoption of the interpretation of the phrase "3 years or more" offered in its proposed recommended order, the Department argues that such interpretation should be "given great deference" since the Department is charged with administering and enforcing the provisions of Section 559.927, Florida Statutes. In support of this contention, the Department cites cases which stand for the proposition that an appellate court, in reviewing final agency action, must give great weight to the agency's construction of a statute that the agency is responsible for administering and enforcing. These cases upon which the Department relies, however, are inapposite to the instant case. Unlike an appellate court, a Hearing Officer in a Section 120.57(1) proceeding does not review final agency action. Indeed, there is no final agency action yet for him to review. Rather than performing a review function, the Hearing Officer's role in such a proceeding is to assist the agency in deciding what final action it should take, including how it should construe applicable statutory language to the extent that the agency has not already adopted an interpretation of such language pursuant to the rulemaking procedures set forth in Section 120.54, Florida Statutes. To effectively render such assistance in a manner that promotes responsible decision making with respect to matters of statutory interpretation, the Hearing Officer must be free to evaluate a proposed interpretation based exclusively upon its merit without regard to whether the interpretation was proposed by the agency or another party to the proceeding.

See McDonald v. Department of Banking and Finance, 346 So.2d at 582-83. The Hearing Officer has conducted such an unfettered evaluation of the respective interpretations advanced by the parties in the instant case of the "3 years or more" requirement and, based upon this evaluation, recommends that the Department utilize the interpretation offered by Petitioner in determining whether Petitioner has met this requirement.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-5096

The following are the Hearing Officer's specific rulings on the findings of facts proposed by the parties:

Petitioners' Proposed Findings

All of Petitioner's proposed factual findings, which are found in numbered paragraph 1 of its post-hearing submittal, have been accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

The Department's Proposed Findings

1. Accepted and incorporated in substance.

2. To the extent that this proposed finding states that "ARC Number 10- 533493 had been granted to GLOBAL on December 9, 1992, less than three years prior to [GLOBAL] claiming the exemption," it has been accepted and incorporated in substance. To the extent that this proposed finding states that the ARC provided the Department with such information regarding Petitioner's ARC "affiliation," it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

3. To the extent that this proposed finding states that Petitioner "had not previously been under contract with [the ARC]," it has been rejected because it is contrary to the greater weight of the evidence. To the extent that this proposed finding states that the ARC had so advised the Department, it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

4-6. Accepted and incorporated in substance.

7. To the extent that this proposed finding states that airline tickets were not written as a part of Global Touring Service's business operations, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.

8-13. Accepted and incorporated in substance.

COPIES FURNISHED:

Robert Vanderkay Jennifer Pickens Global Touring, Inc.

1150 Southwest 10th Avenue Suite 204W

Pompano Beach, Florida 33069

Jay S. Levenstein, Esquire Senior Attorney

Department of Agriculture and Consumer Services

Room 515 Mayo Building Tallahassee, Florida 32399-0800

Richard Tritschler, Esquire General Counsel

Department of Agriculture and Consumer Services

Room 515 Mayo Building Tallahassee, Florida 32399-0800

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

Tallahassee, Florida 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD OF TIME WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 94-005096

Orders for Case No: 94-005096