STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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RECOMMENDED ORDER

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

APPEARANCES

For Petitioner: Robert F. Boles, pro se

1522 Ohio Avenue

Palm Harbor, Florida 34683

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, Robert F. Boles. 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 8, 1994. At final hearing, petitioner testified on his own behalf. Also, petitioner's composite 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, Robert F. Boles, has filed a claim against the bond for more than $1,000.00 alleging that Passport failed to perform on certain contracted services.

   
   

2. On an undisclosed date in 1990, petitioner purchased a travel certificate from Passport entitling the holder to four nights lodging at the Lucayan Beach Resort and Casino in Freeport, Bahamas, which Passport described as "the nicest property on the beach." Petitioner used his certificate to travel with his wife and two children to Freeport on April 1, 1991.

   
   

3. The room to which petitioner was assigned did not have hot water. Petitioner was offered a different room with a less desirable view, but the hot water was not working in that room, and the room had not been cleaned since the prior guest had departed. Since the hotel was otherwise fully booked, petitioner decided to keep his original room, but says he had no hot water during his entire four-night stay. Besides a lack of hot water, the cable television connector was not repaired until the second day, the room air- conditioner was "noisy," and the bed sheets were not changed during the entire stay. As to the latter deficiency, petitioner says this was particularly galling since one of his children had chicken pox while on the trip. He acknowledged that he never requested the house cleaning department to change the sheets but says he had no responsibility to do so. Finally, the burned-out light bulb in the room lamp was never replaced. Whether petitioner asked that it be changed is not of record. When he checked out of the hotel, petitioner expected an adjustment on his bill but received none.

   
   

4. Because of the foregoing problems, petitioner asks that he be refunded in excess of $1,000.00, which he says represents his costs incurred on the trip. According to the evidence, petitioner paid a $90.00 deposit to Passport in October 1990, plus $692.90 for upgrades to better accommodations, additional services and taxes in February 1991. The record does not show what portion of the $692.90 pertains to the upgraded accommodations. The derivation of the remaining part of petitioner's claim is unknown.

   
   

5. The hotel's version of what occurred is found in a letter dated July 5, 1991, but it is hearsay in nature. It does corroborate other evidence that the hotel offered petitioner an apology, gave his family a free meal one evening, and attempted (albeit unsuccessfully) to resolve the problems.

   CONCLUSIONS OF LAW

   
   

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

   
   

7. 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.

      
      

8. 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 by the seller of travel failing to perform the "contracted services." Subsection 559.927(10)(b)3., Florida Statutes.

   
   

9. The evidence does not show that petitioner was injured by "fraud, misrepresentation, or financial failure of the seller of travel." On the other hand, there is evidence that the hotel accommodations did not meet the expectations of a reasonable traveler. Since petitioner contracted to receive first-class accommodations from Passport, and the accommodations offered petitioner did not meet these standards in several respects, he is entitled to a refund of a part of his money. Unfortunately, the cost of the upgraded accommodations is not of record. In the absence of any proof on this matter, a refund of $346.45, or one-half of the fees paid in February 1991, is deemed to be reasonable and appropriate. Therefore, the claim in that amount should be approved.

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

approved, and he be repaid $346.45 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:

Robert F. Boles 1522 Ohio Avenue

Palm Harbor, FL 34683

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: 94-004010

Orders for Case No: 94-004010