STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2601

) ESCAPE TRAVEL SERVICE CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on August 25, 1995, by videoconference.

APPEARANCES

For Petitioner: Lawrence J. Davis, Esquire

Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800 For Respondent: No appearance.

STATEMENT OF THE ISSUE

At issue is whether respondent committed the offense alleged in the petitioner's "notice of intent to impose administrative fine and to issue cease and desist order" and, if so, what administrative action should be taken.

PRELIMINARY STATEMENT

By "notice of intent to impose administrative fine and to issue cease and desist order" dated January 13, 1995, petitioner charged that respondent had operated "as a seller of travel without being registered as required by Section 559.927, Florida Statutes," that it "must immediately register as a seller of travel before engaging in any further seller of travel activities," and that an administrative fine would be imposed for respondent having operated as a seller of travel without being duly registered. In response, respondent filed an application for registration as a seller of travel with petitioner, together with the required $300.00 registration fee and security bond, but requested a formal hearing to address petitioner's proposal to levy an administrative fine. Consequently, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called Gloria Van Treese and Antonio Johnson as witnesses, and petitioner's composite exhibit 1 and composite exhibit 2 were received into evidence. Neither respondent nor anyone on its behalf appeared at hearing, and no evidence was offered on its behalf.

The transcript of the hearing was not ordered. Accordingly, the parties were accorded ten days from the date of hearing to file proposed recommended orders. Petitioner elected to file such a proposal, and the proposed findings of fact contained therein are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner, Department of Agriculture and Consumer Services, is a state agency charged, inter alia, with administering and enforcing the provisions of Chapter 559, Part XI, Florida Statutes, regulating "sellers of travel."

   
   

2. Here, petitioner has charged that respondent had operated as a "seller of travel" without being registered as required by Section 559.927(2), Florida Statutes. The only proof offered to support such contention at hearing was a written inspection report prepared by James Kelly, an inspector employed by petitioner. 1/ That report recited that Mr. Kelly performed an inspection of respondent's premises on November 4, 1994, that he met with Denise Arencibia (who was later identified as respondent's vice president), and that the following events transpired:

   
   

   Went in undercover and asked about weekend cruises. Denise gave me a brochure for the Seaward & gave me prices at $329 per person. She can make all arrangements. They will accept a cashier's check payable to Escape Travel Services.

   
   

   Mr. Kelly did not, however, appear at hearing or otherwise offer testimony in this case. Consequently, for the reasons discussed in the conclusions of law, there is no competent proof of record to support a finding that respondent operated as a "seller of travel" on the date of Mr. Kelly's inspection as contended by petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

   
   

4. Petitioner, Department of Agriculture and Consumer Services, is a state agency created pursuant to Section 20.14, Florida Statutes (1993), and is the agency responsible for administering and enforcing the provisions of Chapter 559, Part XI, Florida Statutes, regulating "sellers of travel."

   
   

5. Pertinent to this case, Section 559.927, Florida Statutes, provides:

   (2) REGISTRATION OF SELLERS OF TRAVEL.--

   (a) Each seller of travel shall annually register with the department, providing: its legal business or trade name, mailing address, and business locations; the full

   names, addresses, telephone numbers, and social security numbers of its owners or corporate officers and directors and the Florida agent of the corporation; and proof of purchase of adequate bond as required in this section. A certificate evidencing proof of registration shall be issued by the department and must be prominently displayed

   in the seller of travel's primary place of business.

   * * *

   (10) VIOLATIONS.--It is a violation of this section for any person:

   (a) To conduct business as a seller of travel without registering annually with the department.

   * * *

   (13) ADMINISTRATIVE REMEDIES; PENALTIES.--

   1. The department may enter an order imposing one or more of the penalties set forth in paragraph (b) if the department finds that a seller of travel, or an agent, servant, or employee thereof, has:

      1. Violated or is operating in violation of any of the provisions of this section or of the rules adopted or orders issued thereunder;

         * * *

   2. Upon a finding as set forth in paragraph (a), the department may enter an order doing one or more of the following:

      1. Imposing an administrative fine not to exceed $5,000 for each act or omission which constitutes a violation of this section or a rule or order.

   
   

6. Section 559.927(1)(a), Florida Statutes, defines "seller of travel" to mean:

   
   

   . . . 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. [Emphasis added.]

   
   

   "Prearranged travel, tourist-related services or tour-guide services," are defined by Section 559.927(1)(b), Florida Statutes, to mean:

   (b) "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 traveler receives a premium or contracts or pays prior to or after departure. These terms also include services for which a foreign

   tourist contracts or pays prior to his departure from his point of origin.

   
   

7. Here, petitioner has charged that respondent "conduct[ed] business as a seller of travel without registering . . . with the department" as required by law, and seeks to impose an administrative fine for such violation. Under such circumstances, petitioner bears the ultimate burden of persuasion. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349, 350 (Fla. 1st DCA 1977), ("The burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.")

   
   

8. As noted in the findings of fact, the only proof offered at hearing that respondent conducted or offered to conduct business as a seller of travel was the inspection report of James R. Kelly, an inspector employed by petitioner. Such report is hearsay, and cannot support a finding of fact that the events related therein actually transpired. 2/ Section 120.58(1)(a), Florida Statutes. Consequently, petitioner has failed to carry its burden of proof.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the charges against

respondent.

DONE AND ENTERED this 12th day of September 1995 in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

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 September 1995.

ENDNOTES

1/ There is also a memorandum of November 9, 1994, from Mr. Kelly to Gloria Van Treese, Bureau Chief, Department of Agriculture and Consumer Services, that forwarded his inspection report. (Petitioner's Composite Exhibit 1, documents 1 and 2). Such memorandum adds nothing to the value of petitioner's proof.

2/ Had Mr. Kelly been called to testify at hearing he could have related what he did and said, as well as what Denise Arencibia, respondent's vice president, did and said (as an exception to the hearsay rule). Mr. Kelly's inspection report is not, however, the best evidence or competent evidence to establish such facts.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1 & 2. Accepted, but not necessary to the result reached.

1. Rejected as not supported by competent proof.

2. Accepted, but not necessary to the result reached. 5-13. Accepted, but not necessary to the result reached.

COPIES FURNISHED:

Lawrence J. Davis, Esquire Department of Agriculture and

Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Mr. Armando Trombetti Ms. Denise Arencibia Escape Travel Service

80 North Biscayne Boulevard Miami, Florida 33132

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

Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel Department of Agriculture and

Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing & Bond Department of Agriculture

508 Mayo Building

Tallahassee, Florida 32399-0800

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 ten days in which to submit written exceptions. Some agencies allow a larger period 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: 95-002601

Orders for Case No: 95-002601