The Issue Whether Petitioner, Barbara Robinson, was subject to an unlawful employment practice by Respondent, Attractions Lodging Leisure, Inc., d/b/a All Guest Services, in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner requested this evidentiary hearing to prove her allegation that All Guest discriminated against her based on her age, national origin, and race. At the final hearing, Petitioner described herself as “a black Jamaican female over the age of forty.”4/ All Guest operates a tourism business in Orlando, Florida. Its business consists of placing sales representatives, or “concierges,” in hotel lobbies throughout the Orlando area. These concierges assist hotel guests by promoting and selling theme park tickets, answering questions about local attractions, and generally helping the guests feel happy about their stay. All Guest currently employs over 150 concierges in 75 hotels across Orlando. All Guest hired Petitioner as a concierge in October 2012. All Guest assigned Petitioner to work in a specific hotel. Petitioner was 48 years old at the time All Guest hired her. Petitioner worked for All Guest from October 2012 until May 2018. By all accounts, Petitioner was a dependable worker with no noted deficiencies in her job performance. Testimony at the final hearing established that Petitioner was qualified to perform her duties as a concierge, and All Guest was pleased with her work. Petitioner remained in the position of concierge during her five years with All Guest. Beginning as early as 2013, however, Petitioner became increasingly disenchanted by what she perceived to be All Guest’s preferential treatment of younger, white employees. At the final hearing, Petitioner recounted how she desired, but was not considered or selected for, several promotion opportunities. She complained that All Guest was promoting younger individuals who were not more qualified that herself. To support her claim that All Guest (unlawfully) failed to promote her, Petitioner described the following incidents: All Guest promoted Schuyler McVicker to a Team Lead position within six months of his hiring, instead of offering the position to Petitioner. Mr. McVicker is a white male who is younger than Petitioner. All Guest promoted Jenn Janasiewicz to a Team Lead position for which Petitioner was not considered. Ms. Janasiewicz is a white female who is younger than Petitioner. In the summer of 2017, All Guest filled a Concierge Sales Manager position. Petitioner complained that All Guest did not approach her about applying for the opening. Petitioner also identified a position that All Guest filled with Andrea Romero. Like Petitioner, Ms. Romero is over the age of forty. However, she is approximately six years younger than Petitioner. Petitioner asserted that she gave All Guest a lot to be happy about. Ticket sales consistently increased through her efforts. All Guest, however, never approached her about a promotion. Petitioner felt ignored, overlooked, and under- appreciated by All Guest’s failure to acknowledge her strong work ethic, as well as her contributions to its business. Petitioner declared that she deserved advancement based on her performance. Further, Petitioner never received a raise during her time with All Guest. Petitioner claimed that those individuals who All Guest promoted received higher wages than she did. (At the final hearing, no proof was offered establishing the actual amount of the other employees’ pay.) As Petitioner became increasingly demoralized by her stagnant job status and low pay, in the latter part of 2016, she began looking for other employment. Ultimately, on May 28, 2018, Petitioner resigned from All Guest to accept a job that offered better financial opportunities. Armando Vazquez, All Guest’s current General Manager, testified at the final hearing. Initially, Mr. Vazquez commented that Petitioner was a quality employee and a good concierge. Mr. Vazquez remarked that Petitioner did a great job working with her customers. Mr. Vazquez explained that Petitioner’s position as concierge afforded her three avenues for “promotion.” First, Petitioner could transfer to a larger hotel with more guests to whom she could market and sell park tickets (thus receiving larger commission payments). Second, Petitioner could be promoted to a Team Lead position. Third, Petitioner could advance into a management position. Mr. Vazquez explained that in All Guest’s business structure, a Team Lead essentially handles day-to-day operations. A manager, on the other hand, is involved in issues of greater complexity, including business strategy and planning. All Guest employs more Team Leads than managers. Therefore, Team Lead positions become available more frequently than managerial positions. Despite the fact that All Guest was pleased with Petitioner’s performance, Mr. Vazquez testified that All Guest did not consider Petitioner for promotion opportunities for several reasons. First, during her five years with the company, Petitioner never expressed to anyone at All Guest, including Mr. Vazquez, that she was interested in a promotion. Therefore, All Guest was not reasonably aware that Petitioner desired to advance beyond her concierge job. Mr. Vazquez elaborated that during Petitioner’s employment, All Guest did not routinely post or publish specific promotion opportunities, except on one occasion. In June 2017, Mr. Vazquez sent out an e-mail to company employees announcing an open managerial position and articulated that, “If you are interested . . . please contact me immediately.” Petitioner did not apply for the position. Neither did she communicate her interest in the opening with anyone in All Guest management. As a result, All Guest did not consider her for the managerial position.5/ Secondly, All Guest was concerned with the manner in which Petitioner interacted with her coworkers, Team Leads, and managers. Mr. Vazquez expressed that Petitioner was not a “team player.” He testified that, on occasion, Petitioner’s treatment of her coworkers was disrespectful and insubordinate. Mr. Vazquez further relayed that Petitioner did not take criticism well. At the final hearing, Mr. Vazquez described several instances when All Guest felt that Petitioner’s conduct was less than satisfactory, including: November 10, 2014: Petitioner’s e-mail exchange with management. Mr. Vazquez pointed to Petitioner’s confrontational and impertinent tone. September 27 and 28, 2016: Petitioner’s e-mail communication with Team Lead Ricardo Bazan. Petitioner’s comments prompted Mr. Bazan to write, “I find your email to be rude and disrespectful.” October 13, 2016: Petitioner’s e-mails to Mr. Vazquez and Rick Schiebel (Director of Sales) regarding Petitioner’s request for time off. Petitioner’s e-mails caused Mr. Schiebel to reply, “Why do you have to be so negative and nasty to our team, including me?” and “I expect you to treat all managers and leads with dignity and respect.” October 18, 2017: Petitioner e-mailed Mr. Vazquez demanding that her manager must have “a valid REASON to come to [her] site to discuss any work related information, it is unacceptable for him to tell me he will be sitting down in my work site space to work on his laptop.” November 19, 2017: Through e-mail, Concierge Manager Andrea Romero reported a conversation with Petitioner in which Petitioner exclaimed that Mr. Vazquez “should go to management classes because he does not know how to run this company.” Finally, Mr. Vazquez asserted that Petitioner had issues with tardiness, as well as refused to commit to working at least one evening shift a week. (At the final hearing, Petitioner conceded that she was occasionally late for work. But, she adamantly denied that she had any pattern of tardiness, or ever failed to show up at all. All Guest did not refute Petitioner’s claim that All Guest never imposed or recorded any formal discipline on Petitioner for these alleged deficiencies in her work performance.) Based on the above reasons, Mr. Vazquez maintained that All Guest was neither inclined nor motivated to extemporaneously promote Petitioner to a higher position during the time she worked with the company. Regarding Petitioner’s complaints that younger coworkers were promoted instead of her, Mr. Vazquez offered several justifications. Mr. Vazquez explained that All Guest selected Mr. McVicker for a Team Lead position because his training matched All Guest’s business needs. Specifically, Mr. McVicker knew how to process transactions from the travel website Expedia, which distinguished him from Petitioner and others. Further, Mr. McVicker was a supervisor at his prior employment which qualified him to assume a part-time manager position with All Guest. Similarly, All Guest promoted Ms. Janasiewicz because her skill set matched All Guest’s business needs in a way that Petitioner’s did not. Finally, Mr. Vazquez explained that Ms. Romero had previously worked with All Guest for a considerable length of time, then resigned. When Ms. Romero subsequently expressed interest in returning to the company, All Guest believed that she was an excellent candidate for a managerial position given her prior experience and skills. Mr. Vazquez argued that Petitioner left All Guest on her own accord (for a better job opportunity), not because All Guest forced her to resign. Mr. Vazquez relayed that, prior to Petitioner leaving All Guest, he received a telephone call from a prospective employer in the hospitality industry who requested an employment reference. Mr. Vazquez testified that he provided Petitioner a positive reference. Mr. Vazquez denied that All Guest made any promotion decisions or refused to consider Petitioner’s advancement in the company, based on her age, race, or national origin. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that All Guest discriminated against Petitioner based on her age, race, or national origin. Accordingly, Petitioner failed to meet her burden of proving that All Guest committed an unlawful employment action against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Barbara Robinson, did not prove that Respondent, All Guest, committed an unlawful employment practice against her; and dismissing her Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 4th day of March, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2019.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: 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, Dorothy L. Castellano, has filed a claim against the bond in the amount of $59.00 alleging that Passport failed to perform on certain contracted services. The facts giving rise to this controversy are not in dispute. In late 1989, petitioner received a promotion offer from Budget Rent A Car for a "free" one-day cruise for two persons from Fort Lauderdale to Freeport (Bahamas Islands) on Discovery Cruise Lines. The travel was to be arranged by Passport and required petitioner to pay Passport a $40.00 fee, plus $19.00 in port taxes, or a total of $59.00. She did so on March 6, 1989, as evidenced by a money order made payable to Passport International Express, a ficticious name then used by Passport. After it received the money, Passport issued two travel certificates to petitioner. On the face of each certificate was the notation "Not valid after 08/30/90." This meant that petitioner had to use the certificates no later than August 30, 1990. Even so, this gave petitioner more than a year in which to take the trip. Petitioner does not deny that she was aware of this restriction. According to Passport, the expiration date was controlled by Discovery Cruise Lines and thus it had no authority to extend the life of the certificates. No evidence was adduced regarding the refund policy of Passport. Petitioner eventually made reservations to use the certificates in July 1990. On June 6, 1990, she broke her ankle and was temporarily disabled. As a consequence, she could not travel before the certificates expired. Although petitioner contacted both Passport and Discovery Cruise Lines and requested either a refund of her money or an extension of time in which to use the certificates, her request was denied. Therefore, petitioner was unable to use the certificates. She then filed a claim with the Department seeking a refund of her money.
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 denied. DONE AND ENTERED this 28th day of November, 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 28th day of November, 1994. COPIES FURNISHED: Dorothy L. Castellano 3821 S. E. 44th Street Ocala, Florida 34480 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
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: 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. 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. 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. 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. 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.
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
The Issue The issue is whether Respondent has committed a discriminatory act with respect to public accommodations in violation of Chapter 760, Florida Statutes, and if so, what remedy should be provided.
Findings Of Fact Respondent operates a fleet of cruise ships. The Triumph is one of the ships in its fleet. It sails from Miami, Florida. Among the cruises that Respondent offers on the Triumph is a seven-day cruise to the Western Caribbean, which stops in Grand Cayman, Cayman Islands, Ocho Rios, Jamaica, and Cozumel, Mexico. Ms. Raphael, a Black female, contracted to and took a seven-day Western Caribbean cruise on the Triumph from March 18- 25, 2006. It was Ms. Raphael's first cruise and she traveled by herself. The make up of the passengers and crew on the ship included all races: Asians, Caucasians, Indians, Hispanics, African Americans, etc. The Triumph left the Port of Miami on March 18th and was at sea in international waters until it returned to the Port of Miami on the 25th. On the 20th, the ship docked at Cozumel. On the 22nd, the ship was at Grand Cayman and on the 23rd it docked in Ocho Rios. The Triumph sailed under a foreign flag and is registered in Panama. When Ms. Raphael boarded the Triumph on March 18, 2006, her picture was taken with the rest of the passengers. Paris Dining Room: Upon boarding, Petitioner was given a card that assigned her to the Paris dining room, lower level, table 334, for 5:45 p.m. dining. During the first two days of the cruise, Petitioner did not go to her assigned table in the Paris dining room because she really didn't pay attention to where she was to go. On the third day of the cruise, Ms. Raphael received another dining room reservation card for the Triumph's Paris dining room, table 334 at 5:45 p.m. Petitioner's allegations in her petition relating to the incident in the Paris dining room were not substantiated by the evidence at hearing. Ms. Raphael presented inconsistent testimony and failed to prove any of the allegations. Pizza Incident: While in international waters, Petitioner went to the pizzeria on the Lido deck to get pizza because she was hungry. She stood in line with other passengers to get a slice of pizza. Ms. Raphael took the last piece of pizza. The slice was burnt. After Ms. Raphael got the last slice of pizza, the server left to go get another pizza pie. Ms. Raphael didn't wait for him to return but, instead just threw the burnt pizza away. She neither asked for a new slice of pizza nor addressed or complained about the burnt slice to anybody. Housekeeping Incident: Ms. Raphael could not get her television in her cabin to work properly. She complained to the purser's office two times to get it fixed. On March 20, 2006, staff reported to the purser's office that Petitioner was using the television incorrectly and it was fine. Petitioner reported to a Triumph employee that her room had not been cleaned for the first few days of the cruise. Housekeeping cleaned her room after she made her report. Petitioner talked to a staff member assigned to clean her room about his national origin and found out that the crew member was from India. So, she informed him that she was from Haiti. After the conversation, Ms. Raphael left her cabin. When she returned to her room it was clean and a towel in the shape of two little pigs and a sign that spelled out the word "Haiti" was left on her bed.2 Carnival's policy requires that stewards leave towel animals on all passengers' beds in their cabins nightly. The stateroom stewards are trained to make various towel animals for passenger cabins, including pigs. Carnival sells a book, Towel Creations with Freddy, which contains instructions for assembling animals. Over 800,000 copies of the book have been sold. Petitioner's Cruise Account Incident: Ms. Raphael went to the ship's casino to play Bingo. When she went to withdraw money to play, the employee she approached didn't provide her money because she did not have identification. So, Petitioner went back to her room to get her identification. After Petitioner returned to the casino, showed her identification, and requested $10.00, she was told there was no money in her account. This incident occurred on or about the fourth day of the cruise. Ms. Raphael witnessed passengers of other races in line getting money in the casino. After Petitioner was denied any withdrawal of money, she went to another Carnival Cruise Line cashier to withdraw money and was told that there was about 40 something dollars in her account. Petitioner did not go back to the casino to play bingo.3 Petitioner also got her account straight by having the cashier remove the service gratuity for meals off her account since she had not eaten in the dining room. At the end of the cruise, Carnival Cruise gave the Petitioner a check for $58.44. Although she complained at hearing that she made a $200.00 deposit and she was given credit for a $100.00 deposit, she accepted it without further complaint. Jewelry Store Incident: Petitioner went to the jewelry store on the cruise ship with fellow passenger Ms. Clayton and received what she considered was bad service. The retail jewelry store is operated by Starboard Cruise Services Limited (Starboard), an independent contractor of Carnival Cruise Line. The employees of the retail jewelry shop are hired, trained, supervised, and employed by Starboard. A male employee was assisting Petitioner and Ms. Clayton, answering their questions and showing them jewelry items, when three other people came up. The salesperson walked away from Petitioner to help the other customers before he finished assisting Ms. Raphael and Ms. Clayton. Petitioner addressed this treatment with another cashier, an employee of Starboard, who apologized to her and said that he would report the matter to the head office. Ms. Raphael never made any additional complaints about the salesperson's rudeness after informing the cashier. The jewelry store is only open while in international waters. Petitioner's visit to the jewelry store was made when the ship was at sea and in international waters. Cabin Search Incident: On March 24, 2006, Homeland Security Officer Mayer sent an e-mail to Triumph Chief Security Officer Paul requesting Ms. Raphael's "A-pass/on/off activity." After the request, Officer Paul provided Petitioner's A-pass activity to United States Customs and Boarder Protection (CBP), a part of the United States Department of Homeland Security. CBP requested an escort to search Petitioner's room when the Triumph docked. Respondent neither initiated the search, requested the search, nor participated in the search of Petitioner's cabin, other than to have a security officer escort CBP Officers Mayer and Maize to Ms. Raphael's cabin. Respondent has no knowledge as to why CBP chose Ms. Raphael's cabin to search. When the Triumph docked at the port in Miami on March 25, 2006, Homeland Security went to search Ms. Raphael's cabin. After they knocked on her cabin door, at 6:49 a.m. Petitioner took approximately three minutes to open the door. Emanuel Moise, a Carnival crew member, was found in the bathroom when CBP came to search Petitioner's room. Petitioner waited in the hall with a female security officer while CBP performed the search of her cabin with a K-9 detector dog.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's Public Accommodations Complaint of Discrimination. DONE AND ENTERED this 22nd day of January, 2008, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2008.
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.
Findings Of Fact 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." 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.
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.
The Issue Whether the subject lease should be awarded and, if so, whether the award should be to Petitioner or to Intervenor.
Findings Of Fact State Road 5 (US Highway 1) runs through Windley Key, Monroe County, Florida. Florida Department of Transportation (FDOT) District 6, headquartered in Miami, has direct operational responsibility for this highway and its adjacent right-of-way. Holiday Isle Resort and Marina, Inc. (Holiday Isle) is a corporation that owns and operates various facilities located adjacent to one another on Windley Key which offer lodging, food, beverages, entertainment, and recreation. These facilities, located easterly of State Road 5, attract a large number of patrons in automobiles. Because of a lack of parking on the Holiday Isle properties, many people have, over the past few years, parked their vehicles across State Road 5 from the Holiday Isle properties on the right-of-way that was unimproved when the request for proposal was issued. Over this time, FDOT and Holiday Isle had an informal agreement giving Holiday Isle the use of this area for overflow parking. Upwards of 400 automobiles have been parked on this right-of-way area across from the Holiday Isles properties. FDOT knew that Holiday Isle patrons and others were parking on this right-of-way area and was aware that this parking arrangement had created a tremendous traffic hazard. Numerous accidents, including fatalities, have occurred over the years involving motor vehicles pulling on and off State Road 5 and pedestrians crossing the road to and from the Holiday Isle properties. In an effort to reduce the hazardous conditions in this area, FDOT decided to lease the right-of-way for motor vehicle parking pursuant to the authority given FDOT by Section 337.25, Florida Statutes. This was the first time that District 6 of FDOT had attempted to procure a lease of this type. On September 23, 1989, FDOT placed an advertisement in appropriate Monroe County newspapers under the heading "Call for Bids". The advertisement advised that sealed bids for the lease of certain described lands would be received by FDOT at 11:00 a.m. on the 29th day of December, 1989. The lands described by the advertisement was for a substantially larger tract of land than the final tract of land described in the Request for Proposal. The advertisement gave notice that "No bid will be considered unless it is submitted on the official Proposal Form provided by the Department of Transportation". The name and address of the person from whom bidders could obtain the forms and information about the project was provided. The advertisement also contained the statement: "The Department reserves the right to reject any or all bids and to waive technical errors as may be determined best for the interest of the State." This was the only advertisement that was published for this project. Petitioner Red & White Investments, Inc. (Red & White) is a corporation organized to make investments. Paul Brumm was one of the shareholders of Red & White and was authorized to act on behalf of the corporation in pursuing the lease that is the subject of these consolidated cases. Joseph Roth was an officer of Intervenor Holiday Isle and was authorized to act on behalf of the corporation in pursuing the lease that is the subject of these consolidated cases Red & White and Holiday Isle were the only two entities to contact FDOT in response to the advertisement. FDOT determined that the legal description it had. used in its published advertisement was incorrect, advised them of the error, and delayed the issuance of its RFP until after its corrected that erroneous legal description. In March, 1990, FDOT corrected the legal description and issued its RFP to Red & White and to Holiday Isle. The RFP contained a metes and bounds description and referred to the land to be leased as being "Parcel 6003.B" and as containing 3.596 acres, more or less. The RFP was a package of three separate documents. The first document was a standard "State of Florida Request for Proposal Contractual Services Acknowledgment Form" (RFP Form) with certain deletions and additions. The second document consists of four pages entitled "Information for Prospective Bidders" (Information Document) and contains information about the subject project and constitutes special conditions applicable to the procurement. The third page is a three-page document headed "Lease Agreement" (Lease Form). Attached to the Lease Form are two exhibits: Exhibit A being a revised legal description of the parcel to be leased and Exhibit B being the page to which the bidder was to attach its conceptual site plan. The RFP Form contained general and special conditions. Among the general conditions was the following: As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any minor irregularity or technicality in proposals received. Proposers are cautioned to make no assumptions unless their proposal has been evaluated as being responsive. There was no restriction stated by the RFP as to the number of proposals a proposer could submit. The RFP Form contained the following statement: SEALED PROPOSALS: All proposal sheets and this original acknowledgment form must be executed and submitted in a sealed envelope. (DO NOT INCLUDE MORE THAN ONE PROPOSAL PER ENVELOPE.) The face of the envelope shall contain, in addition to the above address, the date and time of the proposal opening and the proposal number. ... In the special requirements section of the RFP Form, proposers were required to state the amount being offered to pay for the lease on an annual and on a monthly basis, and were told to submit a "Conceptual Site Plan" as part of the proposal. Proposers were also advised that the land to be leased was vacant and was to be leased "as is", without any representations as to its suitability for any particular use or its qualification for any permits or licenses. All development had to be in conformity with all local, state, and federal laws. The Information Document constituted special conditions applicable to this procurement. Among the special conditions found in the Information Document are the following: BID FORMS: The Department of Transportation will not consider a bid to lease subject land unless it is submitted on the official "Request For Proposal - Contractual Services" form provided by the Department of Transportation. * * * MINIMUM ACCEPTABLE BID: The minimum acceptable bid shall be $58,825.00 per annum. (This requirement was subsequently changed as discussed below.) TERMS: The bid proposal shall specify the amount of monthly rent the bidder is proposing to pay. Payment in full of that amount shall be due and payable at the Lessor's office mentioned above on the first day of May, 1990, and on the first day of each succeeding month for the term of the lease. * * * SUITABILITY: Subject parcel is leased "as is" and the Lessor makes no representation regarding the suitability of the subject land for any use. It is specifically understood that the Lessor makes no representation, guarantee or warranty that the subject land will qualify for any permits or licenses as may be required by any governmental agency having jurisdiction. * * * CONCEPTUAL SITE PLAN: Each bidder must submit with his bid documents a conceptual site plan indicating how they will use and develop the site. Such plan must show all proposed modifications, including all entrances and exits, lighting fixtures, pavement, drainage structures, fences and all other proposed improvements to State Road No. 5, including but not limited to traffic signals. The plan must state that overnight camping will be prohibited by Lessee. No bid will be considered if a conceptual site plan is not included as part of the proposal. The conceptual site plan document(s) will be referred to as Exhibit "B" of the bid proposal. The conceptual site plan submitted by the successful bidder will be incorporated into the final lease as Exhibit "B". CONSTRUCTION OF IMPROVEMENTS: It is specifically understood and agreed that the successful bidder will commence construction of improvements on the leased area, in conformity with the approved Conceptual Site Plan, on or before August 1, 1990. * * * PRE-BID CONFERENCE: All prospective bidders are invited to attend a meeting to be held at the Lessor's office listed above at 11:00 A.M. on Friday, April 6, 1990. The purpose of this meeting is to provide prospective bidders an opportunity to present any questions they may have concerning this bid. Representatives of the Lessor will be present to answer such questions. FORMS: Proposal, contract, and performance bond forms may be secured from this office. Corporate seals are required on bid proposals where applicable. BID AMOUNT: All bids received will be evaluated on the basis of the rental to be paid, and (sic) the merits of the conceptual site plan, and the impact on State Road 5. The RFP required only two specific pieces of information to be generated by the proposer - the statement of rents and the conceptual plan. These were the only portions of the responses evaluated for purposes of awarding the lease. The RFP does not explain the procurement other than to limit the use of the parcel to parking. Safety problems and the parking needs for the Holiday Isle properties are not specifically addressed by the RFP. However, both Mr. Brumm and Mr. Roth were familiar with the long standing problems that existed in the subject area and knew the purposes of the RFP. The pre-bid conference was held as scheduled on April 6, 1990, with only Red & White and Holiday Isle attending as interested bidders. One of the purposes of the pre-bid conference was to permit bidders to ask questions and seek clarification. Following discussions with FDOT officials, it was determined that the legal description included in the RFP package as Exhibit A to the Lease Form was erroneous and that not all of the proposed site was upland or usable as parking. This resulted in a letter from FDOT, dated April 8, 1990, changing the term related to the price by stating that "[u]sable land value for leasing purposes has been determined to be Thirty-Five Cents ($0.35) per square foot per year", and that "[a nominal value for unusable land has been set at One Tenth of One Cent ($0.001) per square foot per year." The legal description of the area to be leased was also changed to encompass 5.190 acres, more or less, rather than the 3.596 acres, more or less, set out in the original proposal package. The revised description included lands closer to the pavement edge of State Road 5 than did Exhibit A to the Lease Form. A portion of the designated area lies within environmentally protected wetlands, contains protected species of vegetation, or is otherwise not suitable for use as a parking lot. FDOT never attempted to calculate how much of the subject property was "usable" or "unusable" and it never instructed the potential bidders as how such calculation should be made. By its letter of April 8, 1990, FDOT effectively removed the requirement from the RFP that the minimum bid for the lease be $58,825.00. FDOT left it to each proposer to determine the amount of usable land and to apply a minimum rate of $0.35 per square foot for usable land and a minimum rate of $0.001 per square foot for unusable land. Red & White timely submitted its proposal, which consisted of a proposal to pay $42,000 per year in rent, a conceptual site plan, a cover letter, a cashier's check in the amount of $4,200 and a copy of a letter, dated April 11, 1990, from Andrew M. Tobin, counsel for Holiday Isle to Mr. and Mrs. Paul Brumm. Red & White's bid amount was based on its determination that there were 113,150 square feet of usable space, and that the balance of the area was unusable. In comparison, Mr. Cochrane estimated that the value of the lease, using the methodology employed by Red & White, was $40,000. This estimate was derived by Mr. Cochrane and was not an appraised value. There was no evidence that FDOT had performed a formal appraisal of this property. Holiday Isle timely submitted two proposals in two separately sealed envelopes marked, respectively, "No. 1" and "No. 2". On April 20, 1990, representatives of both Red & White and Holiday Isle attended at FDOT offices in Tallahassee the opening of the proposals submitted in response to the RFP. At this meeting to open the proposals, Mr. Cochrane, the FDOT employee responsible for the procurement of this project was handed two sealed envelopes on behalf of Holiday Isle. These envelopes were marked "No. 1" and "No. 2", respectively. Mr. Cochrane told Mr. Tobin and Joseph Roth, Holiday Isle's representatives, that he would only open one proposal from Holiday Isle. Holiday Isle's representatives, when asked by Mr. Cochrane which of the two envelopes Holiday Isle wanted him to open, selected the envelope marked "No. 2." FDOT then opened envelope No. 2. The other envelope submitted by Holiday Isle, envelope No. 1, was not opened for the purpose of evaluating the proposal. (At the formal hearing, Holiday Isle requested and received permission to have the previously unopened envelope opened for the purpose of retrieving the cashier's check submitted with the proposal.) When the proposals were submitted, Monroe County was in the process of conducting a "focal point plan" study, required by the Monroe County Comprehensive Plan, for a portion of Windley Key designated as the "Holiday Isle Area of Critical County Concern." The area encompassed the Holiday Isle properties as well as the subject right of way. The focal point planning was to address: Design and functional character of U.S. 1 within one-half mile of the area of critical county concern; The appropriate location, placement, and functionality of adequate off-street parking for patrons to access the Holiday Isle Resort to avoid stacking of vehicles on U.S. 1; and c. An ingress and egress plan for U.S. 1 that limited access to side roads that have adequate turning, acceleration and deceleration lanes. Because of the pending focal point. plan activity and objections expressed by the Florida Department of Community Affairs, FDOT, on May 8, 1990, decided to reject both proposals. In doing so, FDOT represented that it would begin a new solicitation process if the focal point plan approved by the County and by the Department of Community Affairs revealed that leasing the subject right-of-way would be appropriate. Holiday Isle initiated formal administrative proceedings to protest the Department's decision to reject all bids. As the result of negotiations involving Holiday Isle, FDOT and the Department of Community Affairs, Holiday Isle agreed to take over the focal point plan efforts. Holiday Isle also agreed that the conceptual plan it submitted to FDOT as part of its proposal could be used as part of the focal point plan. Thereafter, the conceptual plan that had been submitted by Holiday Isle with its proposal No. 2 was incorporated as part of the focal plan. FDOT agreed to recommence the procurement process. The formal bid protest was dismissed and FDOT notified Red & White and Holiday Isle on June 14, 1990, that it would make its decision as to the award of the lease on June 19, 1990. FDOT appointed a committee consisting of three of its employees to evaluate the merits of the conceptual site plan submitted by Red & White and the Holiday Isle proposal No. 2. Mr. Cochrane was responsible for doing the economic evaluation of the proposed rents. The evaluation committee that reviewed the conceptual site plans was unaware that the Holiday Isle proposal contained a modified lease agreement but Mr. Cochrane was aware that the lease had been modified. The Holiday Isle proposal that had been contained in envelope No. 2 was recommended on June 19, 1990, by FDOT to receive the lease. This proposal consisted of a proposal to pay a conditional sum of $60,000, plus 10% of gross revenues per year, a certificate of insurance, a conceptual site plan, a "Holiday Isle Traffic and Parking Study," a lease, a cover letter, and a cashier's check in the amount of $20,000. The proposal did not state how gross revenues would be determined. Mr. Cochrane had not gotten a legal opinion as to the import of the changes made to the lease by Holiday Isle prior to the award being announced. He evaluated the proposed rents upon the annual rental shown by each proposal. Mr. Cochrane did not consider that the amount of Holiday Isle's proposed rents could be affected by a modification Holiday Isle made to the Lease Form, and he did not know how much money 10% of gross revenue would entail. In evaluating the merits of the respective conceptual plans, the evaluation committee considered that Holiday Isle would run a shuttle service to include the leased area, but that shuttle service was not included in the Holiday Isle proposal. On June 21, 1990, Red & White filed a timely protest of FDOT's intended selection of the Holiday Isle proposal. Holiday Isle did not timely protest FDOT's decision to open only one of its proposals. The lease proposal submitted by Holiday Isle as part of its response to the RFP contained material revisions to the Lease Form contained in the RFP package. Mr. Cochrane, the FDOT employee responsible for procuring the subject lease and for communicating with potential proposers, was of the opinion that the terms of the Lease Form could not be varied. Mr. Cochrane recommended to a representative of Red & White that no changes should be made to the lease form and that a proposer would run the risk of being disqualified if the terms of the lease were revised. Counsel for Holiday Isle was advised by Barbara Hobbs, FDOT counsel, not to revise the lease because FDOT counsel did not have time to review a revised lease. The RFP package does not specifically address whether a proposer may submit a modified lease as part of its proposal. It is clear, however, that Red & White relied on the statement and recommendation of Mr. Cochrane in determining not to make revisions to the lease, while Holiday Isle submitted a lease with revisions that are to its advantage. The revisions made to the lease by Holiday Isle were not minor irregularities. The changes to the Lease Form are in paragraphs 1, 3, 5, and 6 and deal, respectively with the term of the lease, the time of commencement of improvements, the payment of consideration and the adjustment of the amount of consideration depending on a future determination of usable versus unusable area, and termination. In each instance, the terms of the Lease Form was revised by counsel for Holiday Isle. Paragraphs 1, 3, 5, and 6 of the Lease Form are as follows: 1. Lessor does hereby lease unto Lessee the lands described in Exhibit "A attached hereto and made a part hereof, for a period of five (5) years beginning with the date of this agreement. Renewal of this Agreement from year to year shall be automatic until such time as terminated. 3. The Lessee hereby agrees that he will commence improvement of the leased area in conformity with the approved Conceptual Site Plan on or before August 1, 1990. Lessee shall pay the rent to Lessor in advance on the first day of each month, beginning May 1, 1990. When this Agreement is terminated, the unearned portion of any rent payment shall be refunded to Lessee. This agreement may be terminated by either party upon thirty (30) days written notice to the `other party. Paragraphs 1, 3, 5, and 6 of the revised lease submitted by Holiday Isle are as follows: 1. Lessor does hereby lease unto Lessee the lands described in Exhibit "A," attached hereto and made a part hereof for a period of five (5) years beginning with the date of this agreement. The term of this Agreement shall be automatically renewed and extended for an additional five (5) year Thereafter, this agreement shall be renewed from year to year unless otherwise provided by law or terminated as provided herein. * * * 3. The Lessee hereby agrees that it will commence improvement of the leased area in conformity with the approved Conceptual Site Plan on or before August 1, 1990. Because the parties anticipate certain delays for permitting, the parties agree that the commencement date shall be extended provided that Lessee is exercising good faith and due diligence to obtain permits as required by paragraph 13 of this lease. In the event that Lessee fails to exercise good faith and due diligence to secure the permits, Lessor, at its option, may declare Lessee in default of this agreement. * * * 5(a). Lessee shall pay to Lessor, as fixed annual rent, the sum of $59,941.90 for 3.860 acres +/- [more or less] of property designated "usable for parking" and $58.10 for 1.330 acres +/- [more or less] of property designated "unusable for parking" for a total annual rent of $60,000. Annual rent shall be payable to Lessor in equal monthly payments in advance on the first day of each month, beginning May 1, 1990. When this agreement is terminated, the unearned portion of any rent payment shall be refunded to Lessee. * * * 5(b). In addition to minimum fixed annual rent, Lessee shall pay Lessor a sum equal to 10% of the gross revenues from Lessee's parking lot operation, hereinafter "percentage rent." Payment of the percentage rent shall be paid on or before the twentieth day of each month for the preceding month's revenue. Lessee shall keep separate and accurate records of the gross revenues and it will give Lessor the right at any and all reasonable times to inspect such records. Beginning on the first anniversary date of this Lease, and on the anniversary date each year thereafter during the term of this Lease and all extensions and renewals, percentage rent shall be increased 1% each year until a maximum of 20% is reached. * * * 5(c). The parties acknowledge that the designation between "usable" and "unusable" property may be subject to correction based on actual field conditions, biological reports, or Lessee's inability to obtain required permits far part of the property. Either party shall have the right to notify the other of any incorrect designation (between usable and unusable) and to request a correct designation. A detailed and accurate survey showing the basis for the request for correction shall accompany any notification. If property has been incorrectly designated, the parties agree to adjust the annual rent to reflect the corrected designation of property based on $.35 per square foot for "usable" property and $.001 per square foot for "unusable" 6. In the event Lessor is required to utilize all or part of the lands described in Exhibit "A" for construction or additional lanes or for highway expansion, Lessor may terminate that portion required upon thirty (30) days written notice. If less than all of the property is terminated, the rental fee for the remaining property will be recalculated on a pro rata basis. The modifications to the lease by Holiday Isle were not contemplated by FDOT and gave Holiday Isle a competitive advantage not enjoyed by Red & White. On June 28, 1990, FDOT issued a special permit to Holiday Isle to improve the subject right-of-way area to make the right-of-way area safer until the bid dispute could be resolved. Under the auspices of that permit, Holiday Isle has constructed a chain-link fence to control ingress and egress to and from the parking area and has made other improvements to the right-of-way area. The chain-link fence has different gates far vehicles and pedestrians to pass through. Holiday Isle has placed fill material throughout the area. The Florida Department of Environmental Regulation has determined that the fill material is unauthorized. Holiday Isle has also placed railroad ties to serve as parking abutments and has installed lights. The parking abutments and lighting are not covered under the subject permit. The permit enables Holiday Isle to control and use the area for the parking needs of the Holiday Isle properties without having to pay rent for the right-of way area. The fence is a permanent improvement that will not necessarily be removed when the permit is terminated by FDOT. The primary purpose of this project was to make automobile traffic, parking, and pedestrian traffic safer. The RFP stated that proposals would be based on rent, the merits of the conceptual site plan, and the impact to State Road 5. The merits of the conceptual plans were evaluated based on internal circulation of traffic in the parking area, the planned ingress and egress to the parking area, planned pedestrian traffic, and improvements to State Road 5. The conceptual site plan submitted by Red & White was not prepared by professional engineers and was deficient in several material areas. Red & White's plan shaded the area to be reserved for parking, but it provided no information as to how traffic would circulate within the designated area. Red & White failed to provide information as to how State Road 5 would be impacted and failed to show what improvements, such as deceleration lanes or turn lanes, would have to be made to State Road 5. Further, Red & White's plan failed to make adequate provision for pedestrian traffic. Red & White's plan proposed two driveways, one into the parking area and one out of the parking area. The proposed exit driveway was unsafe because it was designated as a right turn only and was located too close to Whale Harbor bridge. Red & White conceptual plan provided for uses that were not contemplated by the RFP, such as an area reserved for recycling and the provision of parking areas for not-for profit groups. The conceptual plans were evaluated based on the following criteria: "access management", "internal circulation", and "traffic control litigation" "Access management" considered the location of driveways and the ease of ingress to and egress from the parking area. "Internal circulation" involves the actual development and use of the site, including parking layout and traffic flow within the designated parking area. "Traffic control mitigation" addresses safety considerations for and handling of cars and pedestrians. Although these criteria were not specified by the RFP, a conceptual site plan meeting minimum transportation engineering standards would have addressed those criteria in detail. The RFP did not set any minimum standard which would make a proposal "non-responsive" and ineligible for evaluation, and FDOT did not disqualify Red & White's conceptual plan. FDOT contemplated that minor changes could be made to the conceptual plan with its approval after the award of the lease. On June 19, 1990, FDOT announced its intention to award the project to Holiday Isle. On July 31, 1990, after the formal hearing had been convened in Case No. 90-4326BID, FDOT delivered to the parties a notice that it had decided to reject all bids. This change of position was based, in part, on the determination by FDOT that there had been confusion throughout the bid process and that the overall process was not absolutely fair.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered in Case No. 90-4326BID that rejects the proposal submitted by Intervenor, Holiday Isle, and which further rejects the proposal submitted by Petitioner, Red & White. IT IS FURTHER RECOMMENDED that a Final Order be entered in Case No. 90- 4326BID that dismisses the bid protest filed by Red & White. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of November, 1990. CLAUDE B. ARRINGTON 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 20th day of November, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-4326BID AND IN CASE NO. 90-5103BID The following rulings are made on the proposed findings of fact submitted on behalf of Red & White Investments, Inc. The proposed findings of fact in paragraphs 1-5 and 42-47 are rejected as being preliminary matters that are unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 6-17, 19-32, 34-36, 38-41, 48-52, 56-57, 62, 64-67, 74-77, 80, 86, 91, 93-95, 101-108, 111, 119-121, 123, 125-126, 130, 134, 144-145, 155, 157, 163, 165, and 174-177 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 18, 37, 81-82, 96-100, 110, 124, 127-129, 132-133, 135-136, 143, 153, 158-162, 166, and 173 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 54-55, 60, 68-72, 87-88, 90, 92, 102, 115-118, 122, 137-142, 146-152, 154, 156, 167-172, and 179-182 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraphs 33, 79, and 178 are accepted in part and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 53, 61, 73, and 83-85 are rejected as being, in part, subordinate to the findings made and as being, in part, unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 58-59 and 131 are accepted in part and are rejected in part as being legal conclusions. The proposed findings of fact in paragraphs 89, 109, 164, and 183-184 are rejected as being argument or as being contrary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of Florida Department of Transportation: The proposed findings of fact in paragraphs 1-9, 9, 12, and 14-15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 10 are rejected as being preliminary matters that are unnecessary to the conclusions reached. The proposed findings of fact in paragraph 13 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 16 and 17 are accepted in part and are rejected as being contrary to the findings made. The following rulings are made on the proposed findings of fact submitted on behalf of Holiday Isle Resort & Marina, Inc. The proposed findings of fact in paragraph 1 are rejected as being legal conclusions. The proposed findings of fact in paragraph 2-3, 6- 9, and 11 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 4 and 5 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 10 and 12-13 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraphs 14 and 15 are rejected as being recitation of testimony and as being subordinate to the findings made. The proposed findings of fact in paragraphs 16 and 17 are adopted in part by the Recommended Order and are rejected in part as being contrary to the conclusions reached. The proposed findings of fact in paragraphs 18-19 and 22 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached or as being subordinate to the findings made. The proposed findings of fact in paragraphs 20 and 21 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: James S. Mattson, Esquire MATTSON, TOBIN & VETRICK Post Office Box 586 Key Largo, Florida 33307 Michael J. Cherniga, Esquire ROBERTS BAGGETT, LAFACE & RICHARD 101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32301 Susan P. Stephens, Esquire Senior Litigation Attorney Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner Robert Scanlan, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James W. Anderson, Esquire Lewis & McKenna, P.A. Post Office Box 10475 Tallahassee, Florida 32302 Lauchlin T. Waldoch, Esquire Messer, Vickers, Caparello, French, Madsen & Lewis, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of her disabilities, in violation of Sections 509.092 and 760.08, Florida Statutes (2004), by refusing to grant Petitioner access to the front of a designated parade viewing area.
Findings Of Fact Petitioner is a minor female and is an individual with disabilities. Petitioner has recognized impairments that substantially limit one or more major life activities. Petitioner is diagnosed with cerebral palsy and is legally blind. Petitioner has a visual acuity of 20/200 in the right eye, 20/160 in the left eye, and 20/160 in both eyes. Petitioner visited Disney's Magic Kingdom (Kingdom) in Orlando, Florida, with her family on February 21, 2005. The visit occurred at a time identified in the record as President's Day Weekend. That weekend is one of the most heavily attended times of the year at the Kingdom. Petitioner and her family attended the SpectroMagical Parade (parade) at 9:00 p.m. The parade travels a route through the streets of the Kingdom. The parade route is approximately one mile in length, thereby providing two miles of front viewing area on both sides of the streets that form the parade route. The entire parade route is accessible and has comparable lines of sight over the entire route. From sometime in the 1970s, Respondent has voluntarily maintained three designated parade viewing areas along the parade route for use by guests with disabilities. The viewing areas are intended to enhance the ability of disabled individuals to view and enjoy the parade. Respondent has also maintained a full-time department known as the Services for Customers with Disabilities (services department). The services department is devoted exclusively to assisting guests with disabilities and training designated employees in how to properly assist guests with disabilities. The services department has voluntarily implemented a number of other services to ensure that guests with disabilities will enjoy their experience at the Kingdom. Among other things, the services department has produced a Guidebook for Guests with Disabilities (Guidebook), developed accessible rides and handheld captioning devices, implemented a Guest Assistance Card program, and printed Guidemaps for its theme parks. Respondent makes Guidebooks available in all of its theme parks and provides Guidebooks to guests free of charge. The Guidebook summarizes service offerings to provide assistance to guests with disabilities. The Guidebook also sets forth policies and procedures pertaining to a number of accessibility related issues. For example, the Guidebook covers policies and procedures for service animals, describes various types of access for disabled individuals, identifies rides that have wheelchair space, provides directions to accessible entrances, describes services for the hearing impaired, and describes the policy and procedure concerning access and use of designated parade viewing areas. The Guidebook expressly provides that parade viewing areas designated for guests with disabilities are filled on a "first come, first served" basis. This policy is consistent with policies and procedures concerning viewing areas for all guests, irrespective of whether they are disabled. The Guidebook expressly provides that employees permit disabled guests to occupy designated parade viewing areas with non-disabled companions and family members and will not separate disabled guests from their companions or family members. Up to five people may accompany guests with disabilities into the viewing areas. The policy does not limit access to parade viewing areas to disabled individuals who use wheelchairs. Employees will not displace any non-disabled family member or companion in order to add a disabled guest to the viewing area (non-displacement policy). Respondent uniformly implements the non-displacement policy for rides, theaters, attractions, and shows. Due to limited space in the designated parade viewing areas, the Respondent advises guests to arrive well in advance of the parade time. Respondent also posts policies and procedures relating to designated parade viewing areas on Respondent's internet web site. The information is also available from designated employees. Respondent trains these employees in the proper etiquette for assisting guests with disabilities in accordance with Respondent's policies and procedures. Respondent also disseminates Guidemaps of its theme parks to assist guests with disabilities. Guidemaps, among other things, identify the location of the designated parade viewing areas for guests with disabilities and show the parade route. Respondent has also developed and implemented a Guest Assistance Card program. Guest Assistance Cards contain certain types of assistance requested by guests with disabilities. The type of assistance requested is placed on the face of the Guest Assistance Card thereby avoiding the need for guests to explain the same request at every attraction, show, or ride. The assistance requested varies from guest to guest depending on their disability. The services department provides a Guest Assistance Card to any guest with a disability who requests a card. Respondent does not independently verify the disability of any guest who requests a Guest Assistance Card. Respondent does not limit the amount of Guest Assistance Cards issued and may issue hundreds or thousands of cards in a day. One form of assistance is available seating in the "front row of ride vehicles or theaters, where applicable." This assistance permits a guest with a hearing or visual disability to sit in the front of a theater or ride to enhance his or her experience. When requested, this form of assistance is placed on the Guest Assistance Card. A Guest Assistance Card does not guarantee that space will be available in a guest viewing area, that the guest will have immediate access to the area, or that front row seating will be available at every event. The Guest Assistance Card permits front row seating when available and only at those activities or facilities listed on the card. This policy is clearly printed on each Guest Assistance Card, along with the non-displacement policy. Assistance in the form of front row seating is limited to ride vehicles and theaters. Ride vehicles are moving conveyances that are boarded and ridden in, such as roller coasters. Theaters are facilities with fixed seating where a show is presented. Fixed seating is a designated area where seats or chairs are affixed to the ground and are therefore stationary and immobile. Parade viewing areas for individuals with disabilities are neither ride vehicles nor theaters. Parade viewing areas do not provide fixed seating but are designated areas on sidewalks along the parade route. Assistance in the form of front row seating does not apply to parade viewing areas along streets or sidewalks. Even if the viewing areas were theaters or rides, the non-displacement policy applies to rides and theaters. Respondent issued a Guest Assistance Card to Petitioner in an area identified in the record as EPCOT. Petitioner requested assistance in the form of front row seating, and the card authorized front row assistance. Petitioner arrived at a designated viewing area in an area of the Kingdom identified as Liberty Square approximately 20 minutes prior to the start of the parade. Petitioner requested access to the front of the viewing area. However, the front of the viewing space was already filled by guests in wheelchairs. The appropriate employee directed Petitioner and her family to a second designated parade viewing area located at an area of the Kingdom identified in the record as the hub. By the time Petitioner arrived at the second parade viewing area, the front of the viewing area was full with guests in wheelchairs and their companions and family members. Respondent did not displace other guests with disabilities and did not displace their family members or their companions so that Petitioner and her family would have access to the front of the viewing area. Although there was room in the second viewing area for Petitioner and her sister, there was not room for Petitioner's other family members. There was no room for Petitioner and her sister in the front of the parade viewing area.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent did not discriminate against Petitioner on the basis of a disability or handicap. DONE AND ENTERED this 2nd day of May, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carol Pacula Walt Disney World Company 1375 Buena Vista Drive Orlando, Florida 32830 Kimberly M. Chicvak c/o Michael Chicvak 23 Twin Oaks Drive Kings Park, New York 11754 Brian C. Blair, Esquire Greenberg Traurig, P.A. 450 South Orange Avenue, Suite 650 Orlando, Florida 32801 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether the Respondent, Thomas Patrick Taylor, committed the violation alleged in an Administrative Complaint issued by the Petitioner, Department of Business and Professional Regulation, Division of Real Estate, on December 14, 2005, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the "Department"), is the state agency charged with the duty to prosecute administrative complaints pursuant to Section 20.125, and Chapters 120, 455, and 475, Florida Statutes. At the times material to this proceeding, Thomas Patrick Taylor, is and was a licensed Florida real estate agent. Mr. Taylor's license number is 693523. For his last issued license, Mr. Taylor was listed as a sales associate affiliated with Whiddon and Company, Inc., license number CQ 1003165, a brokerage corporation located at 777 South Federal Highway, Fort Lauderdale, Florida 33316. Mr. Taylor has been actively licensed in Florida since January 8, 2003. No prior disciplinary action has been brought against Mr. Taylor. Mr. Taylor is and has been licensed as a real estate broker in the State of South Carolina. He has been licensed by South Carolina for more than 25 years. Mr. Taylor operates his own real estate brokerage company in South Carolina. South Carolina has not taken any disciplinary action against Mr. Taylor. Mr. Taylor is high-school educated and is not trained in any field other than real estate. Mr. Taylor's Marital Status. Mr. Taylor is married to Christine Ann Taylor. The Taylors have been married for 18 years. Mr. Taylor has five offspring, three of which are minors and dependent upon him for their support. During 2002, the Taylors were having marital difficulties and, consequently, were living separately. Mr. Taylor was living in Florida, while Mrs. Taylor remained with the children in South Carolina. At some time during 2002, the Taylors decided that they "were way more lonely apart then [they] were frustrated together, so [they] decided that [they] would take a cruise and spend full time with each other for eight days, with no kids and no business, and get to know each other again. Like a second honeymoon." Transcript, Page 41, Lines 23 through 25, and Page 42, Lines 1 through 2. The Cruise and "Costa Rica Taboo Vacations." The Taylors booked a cruise on the Carnival Cruise Lines MS Legend, departing from Fort Lauderdale, Florida in January 2004. Among other places, the eight-day cruise was scheduled to stop in Costa Rica. Some time after arranging the cruise, either Mr. or Mrs. Taylor found an advertisement (Respondent's Exhibit 4) for "Costa Rica Taboo Vacations," (hereinafter referred to as "Taboo Vacations") which was advertised as "For the Discreet Male." The advertisement, which both Mr. and Mrs Taylor saw, went on to state: YOUR DISCRETION AND SAFETY IS FIRST TO US Your one-stop shop on-line travel agency[.] All personal desires fulfilled[.] At Costa Rica Taboo Vacations, your discretion and safety is [sic] our number one concern. Through our experience, we have been able to guarantee our many satisfied customers the comfort of secure quality accommodations while fulfilling their desires. We specialize in providing only clear, fun-loving, "taboo" companions of both sexes delivered to your hotel. You never have to leave your room. [Emphasis in original]. Enjoy Costa Rica's beautiful scenery staying at one of several hotels of your choice[.] All reservations are handled for you. All fees quoted include price of roundtrip airfare, hotel accommodations, and fee for your personal taboo companion. For your safety, have your companion delivered directly to your hotel room by our personal contacts that speak both English and Spanish. Companions are supplied 24 hours a day. You won't find a more willing companion anywhere ~ we guarantee it!! [Emphasis in original]. Fulfill your most personal desires[.] Feel safe and secure[.] Flights available from the United States and Canada[.] Easy payment by credit card ~ Visa, Mastercard, American Express[.] . . . . With Mr. Taylor's agreement, Mrs. Taylor contacted Taboo Vacations by e-mail on January 6, 2004. In the e-mail, Mrs. Taylor wrote the following: OUR CRUISE SHIP WILL BE IN COSTA RICA ON TUESDAY JAN. 20 AND WE WOULD LIKE A HOTEL ROOM FOR THAT DAY AND ONE OR TWO FEMALE COMPANIONS. WHO DO I NEED TO CALL TO SET IT UP AND FIND OUT ABOUT RATES? [Emphasis added]. The same day that Mrs. Taylor sent the foregoing inquiry, Taboo Vacations responded by e-mail, stating, in part, the following: Thank you for contacting Coast Rica Taboo Vacations. I will be your confidential vacation planner. From your e-mail I have put together some information for you. . . . . Companion Service: Sightseeing companion female 16 to 27 year old, light olive complexion, $225.00 for 24 hours. Other type companion female 16 to 27 years old. Light olive complexion, $325.00 for 24 hours. The 24 hours for both type of companions can be broken up over your stay. I.E. 4 hours one day, 8 hours the next day, etc. and you can change your companions. Because you want two girls at the same time I can work that price out for you when we talk. . . . . Go to my website and fill out the form and I will call you. The e-mail from Taboo Vacations purported to be from a man named "Richard Baxter," the "owner" of Taboo Vacations. Mr. Baxter was actually a Federal Bureau of Investigation (hereinafter referred to as the "FBI") agent and Taboo Vacations was actually an FBI "sting" operation. As directed by Mr. Baxter, Mrs. Taylor completed the form provided on Taboo Vacations' website. Although Mrs. Taylor testified that she did not recall how the ages of the two female companions she told Taboo Vacations the Taylors were interested in were selected, the evidence proved either Mrs. Taylor or Mr. Taylor expressed an interest in two females, 16 to 17 years of age, as opposed to Taboo Vacations or Mr. Baxter selecting the ages. On January 7, 2004, Mr. Baxter telephoned Mr. Taylor. A transcript of that conversation was admitted as Respondent's Exhibit 9. Following that conversation, Mr. Taylor sent a check for $100.00 to Taboo Vacations in payment of half of the price for the services of two 16 to 17 year old females for two hours. On January 9, 2004, Mr. Baxter sent an e-mail to Mrs. Taylor in which he made the following offer: . . . . I'm wondering if you would like to surprise you [sic] husband Tom with a girl of his own while your [sic] in Costa Rica. Because I want you as repeat customers there would be not [sic] charge. Please call me at my toll free number . . . so I can talk to you about it. On January 11, 2004, Mrs. Taylor declined Mr. Baxter's offer by e-mail stating "this is my fantasy. I will keep him busy getting us drinks and snacks." On January 13, 2004, Mr. Baxter wrote an e-mail to Mrs. Taylor stating, in part, the following: You must be a great wife to Tom and he as husband to help you make your sexual fantasy come true. Please call me at . . . so I can ask you some personal questions so the 16 and 17 year old girls know exactly what to bring with them. . . . Mrs. Taylor responded to the January 13, 2004, e-mail the same day, stating that "it's not necessary for them to bring anything other than themselves and if they are really pretty that will be enough." Mr. Taylor's Arrest and Conviction. On January 16, 2004, as Mr. and Mrs. Taylor attempted to board their cruise ship in Fort Lauderdale, they were both arrested. They were incarcerated for five days in a federal detention center. On June 30, 2004, Mr. Taylor pled guilty in the United States District Court, Southern District of Florida, to Conspiracy to Travel in Foreign Commerce to Engage in Illicit Sexual Conduct with a Minor. Mr. Taylor was sentenced to three years’ probation and fined $1,000.00. Mr. Taylor subsequently filed a Renewed Motion to Terminate Supervised Release, which was granted by an Order entered July 6, 2004. Mr. Taylor has completed his sentence. Mr. Taylor's Knowledge of Mrs. Taylor's Intentions. Mr. Taylor has asserted throughout these proceedings that he was not aware of what his wife intended to do with the two minor females he helped her arrange for in Costa Rica. His assertions are rejected. The testimony of Mr. and Mrs. Taylor at hearing suggesting that Mr. Taylor was not aware that Mrs. Taylor intended to have sex with two minor females is simply not credited because it is contrary to the weight of the credible evidence. The following discussion occurred concerning the age of the girls which both Mr. and Mrs. Taylor were interested in shows that Mr. Taylor was fully aware that he was arranging for two females who were minors: RB: I got ya . . . got ya. Okay, your e- mail said that you are looking for like a 16- or 17-year-old female? TT: Yes, she's just afraid that someone who's been in this business for a long time might not be as healthy . . . so Clearly, Mr. Taylor was aware or should have been aware that the minor females he and his wife were hiring as "companions" in Costa Rica would be considered in the United States to be minors. Why else would Mr. Taylor ask whether "it was legal" in Costa Rica? See Transcript, Page 45, Line 18. Despite his protestations at hearing to the contrary, it is also found that Mr. Taylor was aware that Mrs. Taylor intended to do more with the minor females than to simply have a "tourist beach party." Transcript, Page 43, Line 10. This finding is based, in part, upon the statement made by Mr. Taylor to Mr. Baxter quoted above, and the following additional statements he made to Mr. Baxter: RB: Okay, So for how many hours did you want the girls? TT: We only need them for a couple of hours. RB: Like 2 or 3 hours? TT: Yeah. RB: Okay. Two girls. TT: They'll wear her out in 2 or 3 hours. [raucous laughter]. . . . . RB: Good. And your e-mail said that you just want the bedroom stuff, right? TT: Right. We don't want to see the town or any of that kind of stuff. . . . . RB: Right. The reason I asked if you wanted to partake is because some of the girls that we have don't do any type of anal type of activity. TT: I'm not interested in that anyway. . . . . TT: . . . . Apparently it's legal in Costa Rica. RB: Yeah, right. TT: So, prices are . . . it looks like something that you can just do on your own coming off the ship. RB: Well, in essence, I offer this service only because of a lot of clientele. You can go over there and just walk the streets or go into the bars and stuff like that, and you don't know what you are going to get. I offer this service because you know I have a lot of clientele. They want to remain discrete and that's exactly what's it for and you know, what you're getting. When you get over there, you're not going to the bars, you're not going to the hotels or walking the streets looking for these girls or guys in order to have sex with and stuff. You know what you're getting . . . . . . . . TT: When are you going to give me an idea of price? RB: 2/3 hours . . . 2 girls . . . what I normally get for 24 hours per girl is $325.00, but you're only going to want if for 2-3 hours. TT: I want 2 hours . . . she just wants to have this fantasy and that's it. Her and 2 girls and it won't even last the two hours. RB: Right . . . her and the 2 girls having sex together . . . wonderful thing . . . you're a good man. Were you going to take pictures? TT: No. RB: Okay. I just wanted to make sure that if you were, I wanted to let the girls know that we [sic] going . . . TT: Wait. I'm sure she wants the healthiest, prettiest girls no pictures . . . no anal . . . no off- the-wall stuff. RB: Okay. Excellent. Not a problem. TT: And being girl and girl, it would probably be a welcome change for them. [much laughter]. RB: $200.00. TT: Total? RB: $200 total. TT: Okay, that's a deal. Am I going to pay someone down there, or am I to pay you up here? RB: You can pay half here and send the other half to my employee, Jorge, down there, or you can pay it all right now . . . it's not a problem. Any way you want to dot it. Do you want to put it on your credit card? TT: To your cat down there. . . . . RB: $100 now, and you pay $100 to my employee over there. . . . . The Limitation on Mr. Taylor's Involvement. Although Mr. Taylor participated in making the arrangements for Mrs. Taylor's fantasy, he did not intend to have sex with the two minor females. During the recorded telephone conversation between Mr. Baxter and Mr. Taylor, in addition to the comments quoted above, the following comments on this issue were made: RB: Ah, then this is for your wife? TT: Hm, hm. RB: Okay. Are you going to partake in it? TT: No. RB: Ah, come on. TT: I don’t think so. I mean . . . because I mean opportunities like that that I'm going to have are going to be few and far between. I've mental pictures of somebody other than those people. RB: Right. TT: Sounds kind of silly, but at the same time, it's one of those things, you know. Between us, my wife is the nasty one. I'm the virtuous one, Richard. [laughter] Then if I see something that I'm just dying for, I could say, "Well, just for this one time I might" and I'd still be the virtuous one. She would be my slave. I pay her bills and I have more character than she does. Additionally, all of the e-mails between Mrs. Taylor and Taboo Vacations, including her response declining Mr. Baxter's offer of a female for Mr. Taylor, support the finding that Mr. Taylor did not intend to participate in any sexual activities with the two minor females the Taylors had hired. Mr. Taylor's "Rehabilitation." Mr. Taylor has asserted that he is now rehabilitated and that he has learned his lesson. Based upon his testimony at hearing, the lesson Mr. Taylor learned, however, is apparently only that you should not do anything that will cause you a great deal of trouble if you get caught. At no point in his testimony did he admit the true wrong he committed: assisting his wife's desire to have sex with two minors. Rather than acknowledging the wrong, Mr. Taylor testified unconvincingly that he did not really know what his wife's intentions were, that, although he did not know what his wife was going to do, he had been led to believe it was "legal" in Costa Rica, and that he wasn't even sure that they would actually go through with "it." Mr. Taylor has also relied upon comments made by the judge during the hearing to release him from serving the full length of his probation. Little weight can be giving to such comments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered finding that Thomas Patrick Taylor violated Section 475.25(1)(f), Florida Statutes, suspending his license for one year, and placing his license on probation for a period of two years after his one-year suspension. DONE AND ENTERED this 27th day of September, 2006, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2006.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: 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, James R. Sherman, has filed a claim against the bond in the amount of $299.00 alleging that Passport failed to perform on certain contracted services. In response to a mail solicitation offer for a five-day, four-night cruise to the Bahamas, in May 1990 petitioner telephoned a Tampa, Florida telemarketeer then using the name of Euno Discount Distributors. After speaking with the telemarketeer, petitioner agreed to purchase the package for a price of $299.00. A charge in this amount was placed on his credit card. During the course of the telephone conversation, petitioner was never told that there were various restrictions on travel dates or that such dates had to be secured at least ninety days in advance. Euno Discount Distributors (or an affiliated entity) had purchased an undisclosed amount of travel certificates from Passport for resale to the public. Passport had agreed to honor and fulfill all travel certificates sold by the telemarketeer, and the certificates carried Passport's name, address and logo. After receiving his travel certificates, petitioner learned for the first time that he could not travel on a weekend when using his certificates and that other restrictions applied. Because of these restrictions, on January 7, 1991, petitioner requested a refund of his money. In response to his inquiry, Passport advised petitioner to contact "the sponsor from whom (he) purchased the package." By now, however, the telemarketeer was out of business. To date, petitioner has never received a refund of his money.
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 the amount of $299.00. DONE AND ENTERED this 9th day of January, 1995, 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 9th day of January, 1995. COPIES FURNISHED: James R. Sherman 3198 Bailey Road Dacula, Georgia 32114 Julie Johnson McCollum 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
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: 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, Mitchell H. Abelman, has filed a claim against the bond for $389.00 alleging that Passport failed to perform on certain contracted services. Because the relevant events occurred some three or four years ago, many of the details concerning this transaction are somewhat vague. It is clear, however, that in response to a solicitation call, on August 15, 1990, petitioner purchased a travel certificate from Executive Travel, Inc., a Connecticut telemarketeer, authorized to sell travel certificates on behalf of Passport. The certificate entitled the holder to a five-day, four-night trip for two to the Bahamas, plus four nights' lodging in Daytona Beach and Orlando, Florida. For this, petitioner agreed to pay $389.00 through a charge to his credit card payable to the telemarketeer. The certificate carried the name, address, and logo of Passport. Prior to purchasing the certificate, petitioner was never told that in order to take the trip, he must pay additional charges. Had he known this, he would not have purchased the certificate. A travel certificate, video, and instructions were mailed by Passport to petitioner around August 22, 1990. The certificate clearly stated that it expired in one year, or on August 27, 1991. The instructions stated that in order to reserve travel dates, the traveler must return the certificate to Passport with the requested travel dates at least 75 days prior to the traveler's departure. Petitioner says he did not open up his mail from Passport for a considerable period of time and thus was initially unaware of these restrictions. On an undisclosed date, petitioner telephoned a representative of Passport and requested confirmation of certain travel dates. Although these dates were apparently more than a year after the certificate was issued, a Passport representative verbally approved the dates but told him that that in order to reserve those dates, he must send in an additional $90.00 for port charges, taxes, and meals on the ship. Petitioner refused to pay any more money since he had not been told this when he purchased the certificate. Therefore, he never returned the travel certificate to confirm his reservation. When petitioner telephoned a Passport representative a second time concerning the use of his certificate, he was told that his travel certificate had expired. He was offered the right to use the Florida portion of his trip but only if he paid a $50.00 deposit. Petitioner declined to do so and later filed this claim for a refund in the amount of $389.00.
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, and he be paid $389.00 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: Mitchell H. Abelman 507 Chestnut Avenue Los Angeles, California 90042 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
