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PASSPORT INTERNATIONALE, INC. vs DREWES ROGGE AND DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, 94-004032 (1994)

Court: Division of Administrative Hearings, Florida Number: 94-004032 Visitors: 16
Petitioner: PASSPORT INTERNATIONALE, INC.
Respondent: DREWES ROGGE AND DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
Judges: D. R. ALEXANDER
Agency: Department of Agriculture and Consumer Services
Locations: Tallahassee, Florida
Filed: Jul. 15, 1994
Status: Closed
Recommended Order on Monday, December 12, 1994.

Latest Update: Feb. 23, 1995
Summary: 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.Where misrepresentation on part of seller of travel, claim against bond approved.
94-4032.PDF

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS


DREWES R. ROGGE,

)



)

Petitioner,

)


)

vs.

)

CASE NO. 94-4032


)


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 Hearing Officer of the Division of Administrative Hearings.


APPEARANCES


For Petitioner: Drewes R. Rogge, pro se

5804 Chesterfield Drive

Chester, Virginia 23831


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, Drewes R. Rogge. 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. At final hearing, petitioner testified on his own behalf. Also, petitioner's composite 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:


  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, Drewes R. Rogge, has filed a claim against the bond in the amount of $1060.00 alleging that Passport failed to perform on certain contracted services.


  2. In July 1990, petitioner purchased a travel certificate from Raka Concepts, a telemarketeer authorized by Passport to sell travel certificates on its behalf. Raca Concepts filed for bankruptcy shortly after the transaction occurred, but a Passport representative assured petitioner that it would honor all travel promised by its agent. The certificate, which cost $399.00, entitled the holder and a companion to lodging for four nights in the Bahamas, two nights in Orlando, and two nights in Daytona Beach. Also, the certificate included transportation to and from the Bahamas by a cruise line. After paying for meals on the ship, taxes and additional charges for his children, petitioner's total cost was $634.00. In his claim, however, petitioner has requested a refund of

    $1,060.00, which includes the cost of upgrades to better accommodations, extra meals, a "VIP package," taxi fares, and a tip. The derivation of this amount is found in petitioner's exhibit 1 received in evidence.


  3. All transportion and lodging arrangements were booked by Passport. During the trip, petitioner experienced numerous difficulties, which are described in detail in exhibit 1. Among other problems, he says the cruise ship was overcrowded and dirty, and the original accommodations in Freeport did not meet his expectations (i. e., they were unsafe) causing him to upgrade to better accommodations at a price higher than was represented by Passport's agent. The total cost of the hotel upgrade was $164.85. Also, he was not notified that his scheduled transportation via cruise line from Freeport to Fort Lauderdale was cancelled at the last minute causing him to spend an extra night in the Bahamas. The cruise line, however, paid for his additional night's lodging. When the cruise line returned the following day it sailed to Miami rather than Fort Lauderdale. Petitioner was then taken by bus to Fort Lauderdale at no charge. Finally, before the trip began, petitioner discovered that he was booked into a hotel in Haines City rather than Orlando. After petitioner lodged a protest, Passport agreed to change his accommodations to Orlando. Mainly because of these problems, petitioner has asked for a refund of virtually all of the money spent on the package.


  4. Except for the mispresentation regarding the quality of the originally assigned accommodations in Freeport and the price of the upgraded accommodations, which cost petitioner an extra $164.85, there was no showing that Passport was guilty of misrepresentation in its handling of this transaction or otherwise failed to substantially perform the contracted services. Therefore, petitioner should be reimbursed $164.85.

    CONCLUSIONS OF LAW


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


  6. 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.


  7. 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 failed to perform the "contracted services." Subsection 559.927(10)(b)3., Florida Statutes.


  8. The evidence shows that petitioner suffered injuries in the amount of

$164.85 caused by the "misrepresentation . . . of the seller of travel." In all other respects, the claim should be denied. This is because the remaining problems experienced by the traveler are not so serious as to constitute a "misrepresentation" or "fraud" by the seller of travel within the meaning of the statute.


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 in part and he be paid $164.85 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:


Drewes R. Rogge

5804 Chesterfield Drive

Chester, Virginia 23831


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.


Docket for Case No: 94-004032
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; 4:00pm)
Oct. 18, 1994 Case No/s 94-4006 thru 94-4042: unconsolidated Per HO request.
Sep. 27, 1994 Order of Consolidation sent out. (Consolidated cases are: 94-4006, 94-4007, 94-4009, 94-4010, 94-4012, 94-4014, 94-4015, 94-4017, 94-4018,94-4019, 94-4021, 94-4022, 94-4028, 94-4029, 94-4030, 94-4031, 94-4032, 94-4036, 94-4039, 9 4-4040, 94-4041)
Sep. 27, 1994 Case No/s 94-4006, 94-4007, 94-4008, 94-400994-4010, 94-4012, 94-4014, 94-4015, 94-4017, 94-4018, 94-4019, 94-4021, 94-4022, 94-4028, 94-4029, 94-4030, 94-4031, 94-4032, 94-4034, 94-4036, 94-4039, 94-4040, 94-4041: unconsolidated.
Sep. 22, 1994 Order of Consolidation sent out. (Consolidated cases are: 94-4007, 94-4008, 94-4009, 94-4010, 94-4012, 94-4014, 94-4015, 94-4017, 94-4018,94-4019, 94-4021, 94-4022, 94-4028, 94-4029, 94-4030, 94-4031, 94-4032, 94-4034, 94-4036, 9 4-4039, 94-4040, 94-4041
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.

Orders for Case No: 94-004032
Issue Date Document Summary
Feb. 22, 1995 Agency Final Order
Dec. 12, 1994 Recommended Order Where misrepresentation on part of seller of travel, claim against bond approved.
Source:  Florida - Division of Administrative Hearings

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