STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EXCELL TRAVEL CLUB, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-3114

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case in Fort Lauderdale, Florida on August 2, 1996, before Stuart M. Lerner, a duly designated Hearing Officer 1/ of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert B. Resnick, Esquire

3851 North Ocean Boulevard, Suite 306 Gulf Stream, Florida 33483

For Respondent: Lawrence J. Davis, Senior Attorney

Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800 STATEMENT OF THE ISSUE

Whether Petitioner has standing to challenge the action the Department of Agriculture and Consumer Services (Agency), in its May 17, 1995, letter to counsel for Petitioner, has proposed to take with respect to the proceeds of the performance bonds Petitioner has posted with the Agency?

PRELIMINARY STATEMENT

By letter dated May 17, 1995, the Agency, through counsel, notified Petitioner of the following:

On May 1, 1995, I forwarded to you the list of claims filed against the seller of travel performance bond[s] posted by Excell Travel Club, Inc., pursuant to the provisions of Section 559.927(10), Florida Statutes. As you can see from the list, the claims total approximately $127,000 which far exceeds

the bond proceeds of $35,000.

This letter is notice to your client Excell

Travel Club, Inc., that pursuant to Section 559.927(10), Florida Statutes, the Division of Consumer Services of the Department of Agriculture and Consumer Services intends to make distribution of the entire bond

proceeds to the claimants on a pro rata basis.

On or about June 6, 1995, Petitioner filed a petition requesting a formal administrative hearing on the Agency's intended action. In its petition, Petitioner stated the following:

PLEASE TAKE NOTICE that EXCELL TRAVEL CLUB,

INC., hereby petitions for a formal proceeding and states:

1. That the name of the business is EXCELL TRAVEL CLUB, INC., whose business address

   is P.O. Box 4159, Deerfield Beach, Florida 33442.

2. That the matter for which the proceeding is sought regards the Letter of Intent to

   make distribution of the entire bond proceeds to claimants on a pro rata basis, issued by the Department of Agriculture and Consumer Services on May 17, 1995.

3. A formal proceeding is hereby requested.

4. Petitioner is obligated to repay the bond and thus has a $35,000.00 exposure.

5. The disputed material facts include: Whether the claimant has filed a proper claim, based on the conditions of the initial sale? Whether the claimants have been satisfied by the petitioner? Whether the claimant is making a proper and timely application for bond proceeds? Whether the State is acting within its jurisdiction and legal rights in awarding bond proceeds?

6. The ultimate facts are whether the State is entitled to take bond proceeds and

   disperse them among a general class of complainants.

7. The rules providing relief are Florida Statute 559.927 and Administrative rules relating to sellers of travel and regarding the forfeiture of bonds.

8. EXCELL TRAVEL CLUB, INC., demands that the State not be permitted to distribute the Bond, and if permitted, only to those representing a class that have perfected a right of entitlement.

The matter was subsequently referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Petitioner had requested.

As noted above, the final hearing in this case was held before the undersigned on August 2, 1996. 2/ Among the issues litigated at the final hearing was Petitioner's standing to challenge the action proposed in the

Agency's May 17, 1995, letter. (In a pleading that it had filed on July 8, 1996, the Agency had questioned whether Petitioner had such standing.)

Three witnesses testified at the final hearing: Jay Levenstein, an attorney with the Agency; Gloria Van Treese, a Bureau Chief with the Agency; and Edward Volz, Petitioner's President. In addition to the testimony of these three witnesses, a total of six exhibits (Petitioner's Exhibits 1 through 3 and Respondent's Exhibits 1 through 3) were offered and received into evidence.

At the close of the evidentiary portion of the hearing on August 2, 1996, the parties were advised of their right to file proposed recommended orders and a deadline was established (20 days from the date of the Division of Administrative Hearings' receipt of the transcript of the final hearing) for the filing of proposed recommended orders on the threshold issue of Petitioner's standing to challenge the proposed Agency action in the instant case.

The Division of Administrative Hearings received the transcript of the final hearing in this case on August 19, 1996. On September 6, 1996, the Agency filed its proposed recommended order on the issue of Petitioner's standing. The Agency's proposed recommended order has been carefully considered by the undersigned. The "proposed findings of fact" set forth therein are specifically addressed in the Appendix to this Recommended Order. To date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

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

1. Petitioner is a Florida corporation.

   
   

2. It was incorporated on September 10, 1991.

   
   

3. On August 25, 1995, it was administratively dissolved for failure to file its annual report.

   
   

4. It has not been reinstated.

   
   

5. At present, Petitioner has no assets.

   
   

6. Its liabilities exceed $250,000.00 and include a judgment against it in the amount of $11,857.00 (plus interest) and numerous unpaid bills.

   
   

7. Before its demise as an active corporation, 3/ Petitioner was a provider of travel services.

   
   

8. It was registered as a "seller of travel" with the Agency in 1992 (from January 1 to December 31) and in 1993 (also from January 1 to December 31), during which time it held Seller of Travel Registration Number 14223.

   
   

9. As part of the registration process, Petitioner posted with the Agency a $10,000.00 performance bond effective for the one year period commencing November 19, 1991 (the 1991-92 Performance Bond) and another $10,000.00 performance bond effective for the one year period commencing November 19, 1992 (the 1992-93 Performance Bond). 4/

10. The surety on these two performance bonds (the 1991-92 Performance Bond and the 1992-93 Performance Bond) was the Hartford Fire Insurance Company (the Hartford).

    
    

11. Edward Volz, in his capacity as Petitioner's President, signed an indemnity agreement obligating Petitioner to indemnify the Hartford for any payments made by the Hartford "by reason or in consequence of its suretyship." 5/

    
    

12. Consumer claims against Petitioner were received by the Agency.

    
    

13. By letter dated February 28, 1994, the Agency advised Petitioner of these "claims on the above referenced security" and of the Agency's intention "to make a demand under its [the security's] terms."

    
    

14. By letter to the Hartford dated February 28, 1994, the Agency made "a demand on the surety bond." 6/ The letter read as follows:

    
    

    This is to notify your company that the Department of Agriculture and Consumer Services is in possession of claims made by persons who purchased travel-related services from the above-mentioned seller of travel [Petitioner].

    This bond was issued by your company to secure the services of the seller of travel or to provide a refund to those customers who do not receive the services purchased. Please accept this letter as a demand on the surety bond. We would appreciate your advising this office in writing within fifteen (15) days from the date of this letter as to the form and information you require in order to make payment pursuant

    to the bonded obligation.

    If you have any questions please contact me at 904-922-2972 or Mr. Wayne Searcy,

    904-922-2920.

    
    

15. In or around March of 1994, Petitioner filed an application with the Agency to renew its "seller of travel" registration.

    
    

16. In conjunction with the filing of its application, Petitioner posted with the Agency a $25,000.00 performance bond effective for the one year period commencing November 19, 1993 (the 1993-94 Performance Bond). The surety on the bond was the Hartford. 7/

    
    

17. By letter dated June 22, 1994, the Agency notified Petitioner that Petitioner's application for renewal of its registration had ben denied for failure "to provide a financial statement prepared by an independent public accountant."

    
    

18. After receiving the Agency's June 22, 1994, letter, Petitioner discontinued its business operations.

    
    

19. Having received additional claims against Petitioner since it had sent its February 28, 1994, demand letter to the Hartford and not having received any

    response from the Hartford to that letter, the Agency sent a second letter, dated September 29, 1994, to the Hartford. The letter read as follows:

    
    

    Subject: Excell Travel Club, Inc.

    1239 East Newport Ctr., [Number] 113 Deerfield Beach, Florida 33442 Surety Bonds [Number] 41770-77 ($25,000) and [Number] 41770-77 ($10,000)

    Effective November 19, 1993/ Effective November 19, 1992

    
    

    Dear Sir:

    
    

    The Department of Agriculture has claims exceeding the amount of the bonds [the 1992-

    93 Performance Bond and the 1993-94 Performance Bond] from persons who purchased travel-related services from the above- mentioned seller of travel [Petitioner]. Therefore, the Department of Agriculture is making a demand on the bonds.

    The bonds were issued by your company to secure the services of the seller of travel or to provide a refund to those customers who do not receive the services purchased. Please accept this letter as a follow up demand on the surety bonds. We would appreciate your advising this office in writing within ten (10) days from the date of this letter as to the form and infor- mation you require in order to make payment to the bonded obligation.

    If you have any questions please contact me at 904-922-2820.

    
    

    A copy of this letter was sent to Petitioner.

    
    

20. The Hartford sent a letter, dated October 18, 1994, to the Agency acknowledging receipt of the Agency's September 29, 1994, letter.

    
    

21. Subsequently, the Hartford sent a second letter, dated November 2, 1994, to the Agency. The letter read as follows:

    
    

    RE: Our file: 319 S 26747 and 319 S 26748

    Principal: Excell Travel Club, Inc.

    
    

    Dear Mr. Cloud:

    
    

    Enclosed are our checks totalling $35,000.00 which are in settlement of the two surety bonds with effective periods 11/19/92 to 11/19/93 and 11/19/93 to 11/19/94.

    Please acknowledge receipt of these two checks and acknowledge that our bonds are exonerated. Thank you for your advices concerning these matters.

22. Appearing on both of the two checks that were enclosed with the Hartford's November 2, 1994, letter was the notation, "full and final settlement."

    
    

23. Each of the checks also had a "loss date" written on it. The "loss date" written on the $10,000.00 check was November 18, 1993. The "loss date" written on the $25,000.00 check was September 29, 1994.

    
    

24. Petitioner had no advance notice that the Hartford was going to make a "settlement" with the Agency.

    
    

25. By letter dated May 17, 1995, the Agency advised Petitioner of its intention "to make distribution of the entire bond proceeds to the claimants on a pro rata basis."

    
    

26. Thereafter, Petitioner filed a petition requesting an administrative hearing on such proposed action.

    
    

27. Petitioner has not repaid any of the $35,000.00 that the Hartford paid the Agency for the benefit of those who filed claims against Petitioner, nor has the Hartford instituted legal proceedings to require Petitioner to indemnify it for having made such payment to the Agency.

    
    

    CONCLUSIONS OF LAW

    
    

28. Chapter 559, Part XI, Florida Statutes (1995), contains the Florida Sellers of Travel Act (the Act). Section 559.926, Fla. Stat. (1995).

    
    

29. The Act was created by Section 5 of Chapter 95-314, Laws of Florida, which amended Section 559.927, Florida Statutes (1994 Supp.) and added Sections 559.928 through 559.939 to Chapter 559, Florida Statutes. The Act took effect on October 1, 1995, after the instant matter had been referred to the Division.

    
    

30. To the extent that the revisions to Chapter 559, Florida Statues, made by Section 5 of Chapter 95-314, are "substantive" 8/ in nature, they may be applied only prospectively. To the extent that they are "remedial" 9/ or "procedural" 10/ in nature, they may be applied (retrospectively) to the instant case. See Alamo Rent-A-Car, Inc., v. Mancusi, 632 So.2d 1352, 1358 (Fla. 1994)("[a] substantive statute is presumed to operate prospectively rather than retrospectively unless the Legislature clearly expresses its intent that the statute is to operate retrospectively;" "[p]rocedural or remedial statutes, on the other hand, are to be applied retrospectively and are to be applied to pending cases").

    
    

31. A "seller of travel," as that term is used in the Act, is defined in Section 559.927(10), Florida Statutes (1995), as follows:

    
    

    "Seller of travel" means any resident or nonresident person, firm, corporation, or business entity who offers for sale, directly or indirectly, at wholesale or retail, prearranged travel, tourist related services, or tour-guide services 11/ for individuals or groups, through vacation or tour packages, or through vacation certificates 12/ 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.

    
    

    Prior to its amendment by Chapter 95-314, Laws of Florida, Section 559.927, Florida Statutes, (hereinafter referred to as the "Act's predecessor") contained the following, substantially similar (for purposes of the instant case) definition of the term "seller of travel:"

    
    

    "Seller of travel" means 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, vacation or tour packages, or through lodging or travel certificates in exchange for a fee, commission, or other valuable conside- ration. 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.

    
    

32. At all times material to the instant case, Petitioner was a "seller of travel," as defined by Section 559.927, Florida Statutes.

    
    

33. At all times material to the instant case, Chapter 559, Florida Statutes, has required that each "seller of travel," as defined in Section 559.927, Florida Statutes, register annually with the Agency and, as part of the registration process, post with the Agency a performance bond, certificate of deposit or letter of credit to be used to satisfy valid claims filed with the Agency against the registrant.

    
    

34. According to the Act, specifically Section 559.929(3) and (4), Florida Statutes (1995):

    
    

    1. The bond, letter of credit, or certificate of deposit shall be in favor of the [Agency] for the use and benefit of any traveler who is injured by the fraud, misrepresentation, breach of contract, financial failure, or violation of any provision of this part by the seller of travel. Such liability may be enforced

       either by a proceeding in an administrative action as specified in subsection (4) or by filing a judicial suit at law in a court of competent jurisdiction. However, in such

       court suit the bond, letter of credit, or certificate of deposit posted with the [Agency] shall not be amenable or subject to any judgment or other legal process issuing out of or from such court in connection with such lawsuit, but such bond, letter of credit, or certificate of deposit shall be amenable and enforceable only by and through administrative proceedings before the [Agency]. It is the intent of the Legis- lature that such bond, letter of credit, or certificate of deposit shall be applicable

       and liable only for the payment of claims duly adjudicated by order of the [Agency]. The bond, letter of credit, or certificate of deposit shall be open to successive claims, but the aggregate amount may not exceed the amount of the bond, letter of credit, or certificate of deposit.

    2. Any traveler may file a claim against the bond, letter of credit, or certificate of deposit which shall be made to the [Agency] within 120 days after an alleged injury has occurred or is discovered to have occurred. The proceedings shall be held in accordance with [Section] 120.57, [Florida Statutes].

       
       

       The Act's predecessor provided as follows with respect to the subject of claims made against a bond, letter of credit, or certificate of deposit posted by a registered "seller of travel" with the Agency:

       
       

       Any traveler may file a claim against the bond, letter of credit, or certificate of deposit which shall be made in writing to the [Agency] within 120 days after the alleged violation of a contract and shall

       be disposed of pursuant to [Section] 120.57, [Florida Statutes]. In the alternative, claims against a bond, letter of credit, or certificate of deposit may be made in the circuit court or county court where the registrant maintains an office or where prearranged tourist-related services were rendered or were to be made.

       The bond or certificate of deposit shall be payable to the state for the use and benefit of any traveler who is injured by the fraud, misrepresentation, or financial failure of the seller of travel and conditioned that the registrant will pay any judgment recovered by any traveler 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. This bond shall be

       open to successive claims, but the aggregate amount may not exceed the penalty of the bond. 13/

       
       

       Accordingly, there has been no change made by Chapter 95-314, Laws of Florida, in the procedural requirements governing the disposition of claims against a "seller of travel's" performance bond filed with the Agency. In disposing of these claims, the Agency still must follow the applicable provisions of Section 120.57, Florida Statutes.

       
       

35. "Under section 120.57, a party may petition for an administrative evidentiary hearing to contest any proposed 14/ final state agency action where the proposed final agency action would affect that party's substantial interest and where there is a disputed issue of material fact which formed the basis for the proposed final action." Florida Sugar Cane League v. South Florida Water Management District, 617 So.2d 1065, 1066 (Fla. 4th DCA 1993).

    
    

36. A party seeking a Section 120.57 hearing has the burden of establishing its entitlement thereto by a preponderance of the evidence. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981); Florida Department of Health and Rehabilitative Services

    v. Alice P., 367 So.2d 1045, 1052 (Fla. 1st DCA 1979); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412,

    415 (Fla. 4th DCA 1974). In order to establish that its substantial interest will be affected by the proposed agency action (and that it therefore has standing to challenge such proposed action pursuant to Section 120.57, Florida Statutes), 15/ the party must show that "(1) the proposed action will result in injury-in-fact which is of sufficient immediacy to justify a hearing; and

    (2) the injury is of the type that the statute pursuant to which the agency has acted is designed to protect." Fairbanks, Inc., v. Department of Transportation, 635 So.2d 58, 59 (Fla. 1st DCA 1994); Friends of the Everglades, Inc., v. Board of Trustees of the Internal Improvement Trust Fund,

    595 So.2d 186, 188 (Fla. 1st DCA 1992). If the injury alleged is hypothetical, conjectural or speculative, rather than real and immediate, it is insufficient to entitle the party to a Section 120.57 hearing. See Board of Optometry v. Florida Society of Opthalmology, 538 So.2d 878, 881 (Fla. 1st DCA 1988); Village Park Mobile Home Association, Inc., v. Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, 506 So.2d 426, 433-34 (Fla. 1st DCA 1987); Montgomery v. Department of Health and Rehabilitative Services, 468 So.2d 1014, 1016 (Fla. 1st DCA 1985); Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230, 1236 (Fla. 1st DCA 1978).

    
    

37. In the instant case, Petitioner has petitioned for a Section 120.57 hearing to contest the Agency's proposed pro rata distribution (to those filing claims against the 1992-93 and 1993-94 Performance Bonds) of the full amount of each of these bonds (a total of $35,000.00), which the surety, the Hartford, has already voluntarily paid to the Agency (for the benefit of the claimants) without disputing the validity of their claims. In its petition, Petitioner has asserted that it "is obligated to repay the bond[s] and thus has a $35,000.00 exposure." Notwithstanding Petitioner's assertion, it does not appear that the proposed Agency action which Petitioner seeks to challenge pursuant to Section 120.57, Florida Statutes, in this case (to wit: the pro rata distribution of the

    $35,000.00 in bond proceeds the Agency has already received from the surety) "will result in injury-in-fact [to Petitioner] which is of sufficient immediacy to justify a [Section 120.57] hearing."

38. Any obligation that Petitioner may have "to repay the bond[s]" arose when the Hartford (in November of 1994) settled with the Agency and paid the Agency the full amount of the bonds, and any such obligation will be unaffected by the manner in which the Agency distributes these bond proceeds amongst the claimants. If Petitioner is obligated "to repay the bond[s]," such obligation will exist regardless of whether the Agency distributes these bond proceeds on a pro rata basis, as it has proposed to do, or selects another method of distribution.

    
    

39. Moreover, it is a matter of pure speculation and conjecture that Petitioner will actually ever "repay the bond[s]" and suffer the $35,000.00 injury to which it refers in its petition. To date, it has not made such repayment, nor has the Hartford taken legal action to require Petitioner to do so. Even if the Hartford were to subsequently file an indemnification action against Petitioner, 16/ there does not appear to be any reason why Petitioner would not be able, in defending against such an action, to raise the very same issues it seeks to raise in the instant case concerning the validity of the claims made against the performance bonds and to avoid having to indemnify the Hartford (should it prevail in the indemnification action on these issues). See Capital Bank v. Meyers, 573 So.2d 120, 121 n.2 (Fla. 3d DCA 1991); Wright v. Fidelity and Casualty Company of New York, 139 So.2d 913, 915 (Fla. 1st DCA 1962). In any event, Petitioner is an (administratively) dissolved corporation which has considerable liabilities and no assets. Therefore, even if the Hartford were to obtain a money judgment against Petitioner, the judgment would be uncollectible and Petitioner would suffer no real loss as a result of the judgment (unless Petitioner were to be reinstated pursuant to Section 607.1422, Florida Statutes, and, as a result of the resumption of its business, acquire assets sufficient to satisfy the judgment, events that do not appear likely to occur.)

    
    

40. In view of the foregoing, Petitioner's petition challenging (pursuant to Section 120.57, Florida Statutes) the Agency's preliminary determination to distribute the proceeds of the 1992-93 and 1993-94 Performance Bonds (which the Agency has received from the Hartford) to claimants on a pro rata basis should be dismissed on the ground that Petitioner does not have standing to pursue such a challenge under Section 120.57, and the Agency should proceed as if the petition had not been filed. 17/

RECOMMENDATION

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

RECOMMENDED that the Agency enter a final order dismissing, on the ground of lack of standing, Petitioner's petition requesting an administrative hearing on the Agency's proposed action to distribute the proceeds of the 1992-93 and 1993-94 Performance Bonds to claimants on a pro rata basis.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of October, 1996.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1996.

ENDNOTES

1/ Pursuant to Chapter 96-159, Laws of Florida, the title of the undersigned (and of all other Hearing Officers of the Division of Administrative Hearings) was changed to Administrative Law Judge, effective October 1, 1996.

2/ The hearing was initially scheduled to commence on May 6, 1996. On March 13, 1996, pursuant to the stipulation of the parties, the hearing was continued and the instant case was placed in abeyance. Subsequently, the abeyance was vacated and the hearing was rescheduled for August 2, 1996.

3/ "A corporation administratively dissolved continues its corporate existence but may not carry on any business except that necessary to wind up and liquidate its business and affairs under s. 607.1405 and notify claimants under s.

607.1406." Section 607.1421(3), Fla. Stat.

4/ The 1992-93 Performance Bond was denominated a "renewal" and assigned the same bond number (41770-77) as the 1991-92 Performance Bond. Nonetheless, it constituted a separate and distinct undertaking for the period it covered. See Hartford Accident and Indemnity Company v. Sheffield, 375 So.2d 598, 600 (Fla. 3d DCA 1979)("'[a] renewal of a policy constitutes a separate and distinct contract for the period of time covered by the renewal'").

5/ Volz also signed the agreement in his individual capacity as a third party indemnitor.

6/ Although in its February 28, 1994, letters to Petitioner and the Hartford the Agency did not specify which of the two "surety bonds" was the subject of the Agency's "demand," it appears that it was the 1992-93 Performance Bond to which the Agency was referring inasmuch as it was too late to make a "demand" on the 1991-92 Performance Bond under the terms of that bond.

7/ Like the 1992-93 Performance Bond, the 1993-94 Performance Bond was denominated a "renewal" and assigned the same bond number (41770-77) as the

1991-92 performance bond, but it nonetheless constituted a separate and distinct contract for the period it covered.

8/ "[S]ubstantive law prescribes duties and rights." Alamo Rent-A-Car, Inc., v. Mancusi, 632 So.2d 1352, 1358 (Fla. 1994).

9/ "A remedial statute is one which confers a remedy and the means employed in enforcing a right or in redressing an injury." Snellgrove v. Fogazzi, 616 So.2d 527, 529 (Fla. 4th DCA 1993).

10/ "[P]rocedural law concerns the means and methods to apply and enforce . . . duties and rights." Alamo Rent-A-Car, Inc., v. Mancusi, 632 So.2d 1352, 1358 (Fla. 1994)

11/ "'Prearranged travel, tourist-related services, or tour-guide services' includes, but is not limited to, car rentals, lodging, transfers, and sightseeing tours and all other such services which are reasonably related to air, sea, rail, motor coach or other medium of transportation, or accommodations for which a purchaser receives a premium or contracts or pays prior to or after departure." Section 559.927(6), Fla. Stat. (1995).

12/ A "vacation certificate," as that term is used in the Act, is defined in Section 559.927(11), Florida Statutes (1995), as follows:

"Vacation certificate" means any arrangement, plan, program, or vacation package that promotes, discusses, or discloses a destination or itinerary or type of travel, whereby a purchaser for consideration paid

in advance is entitled to the use of travel, accommodations, or facilities for any number of days, whether certain or uncertain, during the period in which the certificate can be exercised, and no specific date or

dates for its use are designated. A vacation certificate does not include prearranged travel, tourist-related services, or tour- guide services when a seller of travel remits full payment for the cost of such services

to the provider or supplier within 10 business days of the purchaser's initial payment to the seller of travel.

13/ While the Act's predecessor contained language which, if read in isolation, might suggest that the proceeds of a "seller of travel's" pre-Act performance bond cannot be used to satisfy the claim of a traveler injured, not "by the fraud, misrepresentation, or financial failure of the seller of travel", but rather by the "seller of travel's" mere breach of contract, when this statutory language is read together with the remaining portions of the pre-Act version of the statute, it is apparent that the Legislature intended otherwise. See Shuman

v. State, 358 So.2d 1333, 1336 (Fla. 1978)("[i]t is an established rule of statutory construction that legislative intent should be ascertained from an examination of a statute as a whole, rather than any one part thereof"); Town of Lake Park v. Karl, 642 So.2d 823, 825 (Fla. 1st DCA 1994)("we cannot read subsection 440.20(7) in isolation but must give effect to the statute as a whole").

14/ A Section 120.57 hearing is intended "to formulate agency action, not to review action taken earlier and preliminarily." Young v. Department of Community Affairs, 625 So.2d 831, 833 (Fla. 1993); Hamilton County Board of County Commissioners v. Department of Environmental Regulation, 587 So.2d 1378,

1387 (Fla. 1st DCA 1991); Boca Raton Artificial Kidney Center, Inc., v. Florida Department of Health and Rehabilitative Services, 475 So.2d 260, 262 (Fla. 1st DCA 1985); DeCarion v. Department of Environmental Regulation, 445 So.2d 619, 621 (Fla. 1st DCA 1984); Capeletti Brothers, Inc., v. Department of General Services, 432 So.2d 1359, 1364 (Fla. 1st DCA 1983); McDonald v. Department of

Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977).

15/ "Standing" is the "requisite personal interest that must exist at the commencement of the litigation." Montgomery v. Department of Health and Rehabilitative Services, 468 So.2d 1014, 1016 (Fla. 1st DCA 1985). Such interest must "continue throughout [the] existence" of the litigation. If it does not, the case becomes "moot." Id.

16/ A corporation that has been dissolved may nonetheless be sued. Section 607.1405(2), Fla. Stat.

17/ "[A]n agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under Section 120.57." Capeletti Brothers, Inc., v. Department of Transportation, 362 So.2d 346, 348 (Fla. 1st DCA 1978). If the agency provides such a clear point of entry to all those whose substantial interests would be affected by the proposed agency action and no such affected party timely requests a Section 120.57 hearing, the agency may proceed to take final agency action without such a hearing being conducted. See Florida League of Cities, Inc., v. Administration Commission, 586 So.2d 397, 413 (Fla. 1st DCA 1991)("[u]ntil proceedings are had satisfying section 120.57, or an opportunity for them is clearly offered and waived, there can be no agency action affecting the substantial interests of a person"); Fortune Life Insurance Company v. Department of Insurance, 569 So.2d 1325, 1327 (Fla. 1st DCA 1990)("the department could have followed non-emergency procedure by announcing intended agency action, giving the adversely affected party a clear point of entry and the opportunity to elect formal or informal proceedings;" "[i]f that election is not made, of course, the intended action will become final").

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-3114

The following are the Administrative Law Judge's specific rulings on the "findings of facts" proposed by the Agency in its proposed recommended order:

1-5. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

1. Last sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.

2. Accepted and incorporated in substance.

3. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact. See T.S. v. Department of Health and Rehabilitative Services, 654 So.2d 1028, 1030 (Fla. 1st DCA 1995)(hearing officer's factual findings which "merely summarize[d] the testimony of witnesses" were "insufficient").

9-10. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

11-14. Accepted and incorporated in substance.

15-16. Not incorporated in this Recommended Order because, even if true, they would add only unnecessary detail to the factual findings made by the Hearing Officer.

17-18. Accepted and incorporated in substance.

19. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

COPIES FURNISHED:

Robert B. Resnick, Esquire

3851 North Ocean Boulevard, Suite 306 Gulf Stream, Florida 33483

Lawrence J. Davis, Senior Attorney Department of Agriculture

and Consumer Services Mayo Building, Room 515

Tallahassee, Florida 32399-0800

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

Tallahasse, Florida 32399-0810

Richard Tritschler, General Counsel Department of Agriculture

and Consumer Services The Capitol, PL-10

Tallahasse, Florida 32399-08100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 95-003114

Orders for Case No: 95-003114