Findings Of Fact Petitioner was born in 1936. While on active duty in the United States Navy in 1955, he suffered an injury which subsequently led to the amputation of his left foot. When discharged from the Navy, his disability was rated by the Veterans Administration (VA) at 40 percent. Subsequent problems with the stump of the left leg, arthritis, and a spinal fusion led to VA disability increases, which disability rating at time of hearing was 100 percent. Petitioner applied for work with Delta Air Lines, Respondent, in 1966 and was employed as a reservations agent in Chicago. At this time his VA disability rating was 70 percent. In 1967 Petitioner, at his own request, was transferred by Respondent to Tampa, Florida. At this time Petitioner was able to move around the bay in which he worked with and without his crutches. In September 1979 Petitioner was hospitalized for stump revision and remained in an off-duty status until June 1980 when he returned to his position with Delta. At this time Petitioner carried out his duties as a reservation agent in a wheelchair. Following his return to work in 1981 Petitioner's performance of duty was marginal. Petitioner takes prescribed medication for pain. On one occasion the medication adversely affected his ability to perform his duties satisfactorily and he was told by his supervisor not to take medication at work. The doctor changed this prescription from 1-100 mg. daily to 4-25 mg. daily and Petitioner continued his medication as prescribed without further problems. On October 28, 1981, Petitioner was examined by Dr. Frazier, one of the physicians used by Delta for its employees. The purpose of this examination was to evaluate Petitioner's physical condition for continued employment. Report of this examination is contained in Exhibit 5 wherein Dr. Frazier concluded that Petitioner "has several progressive disabilitating diseases, that combined with his psychological state make him unemployable for Delta Air Lines. I would recommend because of his depression, amputation, hypertension, osteo-arthritis and spinal fusion problems that he be retired on disability." Respondent does not have a retirement for physical disability status. In lieu thereof it has short-term disability benefits and long-term disability benefits. Long-term disability benefits are calculated as a percentage of the employee's basic monthly salary less social security benefits the employee receives. Petitioner was in a long-term benefit status while recovering from stump revision in 1979-1980. Following Delta's receipt of the report of Dr. Frazier, Petitioner was sent home in a short-term disability status while the report was evaluated. Respondent subsequently advised Petitioner that he was qualified for sedentary work and directed him to return to his position with Delta Air Lines. Petitioner returned to work around June 1982 as a reservations agent. Fifteen or twenty reservation agents work in a "bay" where each has access to a telephone and computer terminal. These agents handle all reservation requests via telephone with no visual contact with the customers. They work an eight-hour shift with two 10 minute breaks and one-half hour off for lunch. While operating from his wheelchair, Petitioner usually took a station near the entrance to the bay which provided easier access for the wheelchair than a station farther down into the bay. He made no complaints about access to his station to Delta supervisory personnel. Reservation agents' telephone communications are monitored by supervisors on an intermittent basis to ensure the agent is carrying out his duties in a satisfactory manner and is providing proper information to the customers. In June 1972 Petitioner was placed on three months' probation. In September 1972 this probationary period was extended an additional three months. In July 1974 Petitioner was again placed on probation and given a "final chance" letter. In October 1977 he was given a letter for poor performance. Petitioner acknowledged that several times before 1982 he had been disciplined by Respondent but not fired. In December 1982 Charles Cortright, a retired architect, called the Tampa office of Delta Air Lines to get information on a flight to and from the West Coast interrupted with cruises while on the West Coast. Specifically, Cortright wanted to fly to Seattle, take a ferry trip to Alaska, perhaps two more sea cruises from West Coast ports, take a train from Seattle to San Francisco, and fly back to Tampa from San Francisco. He was referred to Petitioner, who quoted him a price of $278.00 on the air portion of this trip, but, since Petitioner did not think the cruises could be arranged by Delta, referred Cortright to a travel agency. Petitioner testified that he referred Cortright to three travel agencies located in the vicinity of Cortright's residence and did not specify the agency at which Petitioner's wife worked. Although Cortright testified that he was not referred to any one by name and did not know that Petitioner's wife worked at Tri-Cities Travel Agency, he went to Tri-Cities and his reservations were made by Malinda, who, in fact, was Petitioner's wife. It is likely that Cortright did not know that Malinda was Petitioner's wife, but it is believed that Cortright was told by Petitioner to ask for Malinda and he did so. When the airline tickets arrived at the travel agency, Cortright was advised by the agency the price of the air fare was $302.00. Cortright then, on December 14, 1982, called Delta and asked to speak to Petitioner to inquire about the difference in the fares quoted by Petitioner and the cost of the tickets at the travel agency, and to get the fare guaranteed that was quoted by Petitioner. At the time this call was received by another agent, Jennings King, King was being monitored by his supervisor, Carolyn Corvette. In this phone conversation Cortright said he had spoken to Petitioner two times before, that he went to the agency to which he had been directed by Petitioner, that he spoke to Malinda as directed by Petitioner, and that he was charged a higher fare than was quoted by Petitioner. Corvette had the call transferred to the customer service desk and authorized guarantee of the lower fare quoted. She promptly prepared a memo of the incident to Arthur Arden, Chief Reservation Supervisor (Exhibit 7). Arden called Cortright, who confirmed that Petitioner had directed him to Tri-Cities Travel Agency. Arden extracted from Delta's computer the reservation made for Cortright which disclosed the reservation was made by Malinda at Tri-Cities (Exhibit 8). Knowing that Malinda was Petitioner's wife, Arden, on December 15, told Petitioner that he was suspended from work and would be recommended for dismissal. On December 15, 1982, Arden signed a memo to Harry Dean, Delta's Regional Manager at Tampa, recommending that Petitioner be terminated (Exhibit 6). Dean concurred, sent the memo to Delta's Atlanta office, and Petitioner was fired. All reservation agent trainees are told that they should make every effort to arrange all of the transportation needs of the customers through Delta Air Lines, including tours requiring other modes of transport than air; and that they should never refer a customer to a specific travel agency. If a travel agency's services are needed by the customer, the customer should be referred to the yellow pages of the phone book to select a travel agency. This same information is contained in the Standard Practices Manual, which is available to all reservation agents. The reason for this rule is to eliminate, insofar as possible, conflicts of interest and to refrain from alienating some travel agents by appearing to favor other travel agents. This could create a serious problem for the air lines and is taken very seriously by air line company management. Petitioner's testimony that he did not refer Cortright to Tri-Cities Travel Agency and that he never referred a customer to a specific travel agency was rebutted by Betty Maseda, a fellow reservations agent who frequently sat alongside Petitioner at work and on several occasions overheard Petitioner giving specific instructions to customers on exactly how to get to Tri-Cities Travel Agency and to ask for Malinda. Ms. Maseda considers herself a good friend of Petitioner and did not volunteer this information to Respondent until after Petitioner had been fired.
The Issue The issue is whether Respondent properly awarded a contract for automated payment options to E-Commerce Group, a non-party.
Findings Of Fact Respondent is a local governmental body, corporate and politic, organized pursuant to Chapter 2001-324, Laws of Florida. Respondent is responsible for providing certain water, wastewater, and sanitation services in Escambia County, Florida. Petitioner is a Florida for-profit corporation. It is organized and authorized to do business under Florida Law. Currently, Respondent offers its utility customers several different types of payment options, including the following: (a) over-the-counter payments; (b) drive-in payment; (c) mail-in payments; (d) automatic bank drafts; and (e) in-person payments. In May 2002, Respondent released Request for Proposal (RFP) 2002-36. Through the RFP, Respondent was seeking the lowest and most responsible proposal for automated payment options for Respondent's utility customers. According to the RFP, the vendors needed to be capable of providing Internet and telephone payment options so that Respondent's customers could use their credit cards to pay their utility bills. The RFP stated that the sealed bids would be opened on June 27, 2002. Section 1, the administrative section of the RFP, provides the following information regarding Respondent's operations as of September 30, 2001: (a) Respondent served 85,000 water customers; (b) Respondent served 55,800 sewage collection and treatment system customers; (c) Respondent served 59,900 solid waste customers; (d) Respondent generates approximately $64,000,000 in revenue per year; and Respondent's average residential bill is $60. Section 2 of the RFP discusses Respondent's current management information system. This section states that Respondent needed to "know about and understand all the costs and changes necessary to implement the solution proposed." Section 3 of the RFP requests information about the vendor. This section includes a vendor questionnaire and request for information about the vendor's prior customers. Section 4 of the RFP sets forth the project requirements. Of particular note is the following reference to a convenience fee in Section 4.1: Convenience Fee Since the convenience fee is the method the vendor will [use to] generate compensation for this service, ECUA requires the rate (fixed or sliding) to be fixed for the duration of the contract. You may propose a sliding scale for lowering or raising the fee based upon use of the solution once a preliminary period has expired (the preliminary period to be set in vendor's contract). Section 4.3 of the RFP sets forth the project considerations. A cost-effective and timely solution is listed as one of six considerations. Section 5 of the RFP sets forth the requirements for vendor responses. Section 5.3 includes the following evaluation criteria: These criteria are to be utilized in the evaluation of qualifications for development of the shortlist of those vendors to be considered by interviews and/or potential negotiations. Individual criteria may in all probability be assigned varying weights at the ECUA's discretion to reflect relative importance. Vendors are required to address each evaluation criteria in the order listed and to be specific in presenting their qualifications. (Emphasis added) Experience/qualifications of Vendor. Vendors (sic) proposed staff, experience with contracts for services similar in scope. Capabilities, features, etc. of the proposed services and the degree to which the proposed services meet the needs of the ECUA. References of only similar contracts. The Vendor must have a demonstrative history of professional, reliable and dependable service. Demonstrated quality assurance procedures and schedule to insure a timely, effective and professional provision of services. Costs. Section 5.4 of the RFP discusses the process for scoring responses. It provides as follows in relevant part: Selection Procedure Selection shall be made of two or more vendors deemed to be fully qualified and best suited among those submitting proposals. The selection will be made on the basis of the factors involved in the Request for Proposal, including price if so stated in the Request for Proposal. Selected vendors will then conduct a presentation to the selection committee. After all presentations are made the selection committee will select the vendor which, in its opinion has made the best proposal and make a recommendation to ECUA's Board. ECUA's Board will award a contract to that vendor. Should the ECUA determine that only one vendor is fully qualified or that one vendor is clearly more highly qualified than the others under consideration, the presentation phase may be skipped. (Emphasis added) * * * Basis for Award Information and/or factors gathered during the interviews and any reference checks, in addition to the evaluation criteria stated in the RFP, and any other information or factors deemed relevant by the ECUA, shall be utilized in the final award. Section 6 of the RFP sets forth the functional requirements. This section is not at issue here. Section 7 of the RFP is entitled "Cost Summary." Section 7.1 includes the proposal form, which states as follows in relevant part: ITEM A - Customer Convenience Fee: ITEM B - Set Up Cost: ITEM C - Other (explain): The RFP does not have a section for definitions. It does not define the term "cost" other than as set forth above. The following four vendors submitted timely proposals to Respondent: (a) E-Commerce Group; (b) Petitioner; (c) Link2Gov Corp.; and (d) BillMatrix. The proposals were as follows: Vendor Name Customer Convenience Fee Setup Cost Other E-Commerce Group $2.95* for $1-$500 pymt. None N/A Optional E Bills fee $.35 per bill** Petitioner $2.50* per I/O, IVR & Web Trans. $3,750 Development hourly rate-- $75** $125 per unit swipe device Link2Gov Corp. $2.49 Internet/$2.89 IVR None $95.00 hosting fee per month BillMatrix $3.95 Per Credit Card Trans. None N/A E-Commerce Group: *If average payment more than $60, or if American Express payments to be accepted in addition to other major credit card associations, the convenience fee would be higher; no costs to ECUA for software use. **No other costs for using software, but if ECUA would like billing services, the fee per bill presented would be $0.35. Petitioner: *Will request review of convenience fee if average payment is more than $60 for three consecutive months. **To be charged only upon request from ECUA for specialized development tasks or if implementation requirements exceed est. setup costs, but only upon negotiation between parties. The proposals were initially reviewed by Respondent's finance department. In reviewing them, the director of finance recognized that the number of users of the automated payment option was unknown. However, Respondent's experience with other alternate payment options had generated very limited customer participation. Therefore, the director of finance concluded that it would be best if Respondent did not absorb a high set-up cost for a service that might have very limited use. Additionally, the director of finance believed it was in Respondent's best interest if the customers electing to use the automated payment option bore the fees and costs associated with those services, rather than having all ratepayers absorb this expense regardless of whether they were using it. Accordingly, the director of finance decided to recommend that Respondent select E-Commerce Group's proposal, as it was the lowest bid with no cost to Respondent. The director of finance's recommendation was presented to Respondent's finance advisory committee on July 16, 2002. The finance advisory committee is composed of members who are not Respondent's employees. After receiving the director of finance's recommendation, the committee members discussed which of the proposals were best for Respondent. Respondent's finance advisory committee decided to recommend that Respondent "select E-Commerce Group, the lowest bidder when considering there is no set-up cost to ECUA, as the vendor to provide these automated payment solutions, and enter into a one-year contract with an optional one-year extension." On July 25, 2002, Respondent considered the finance advisory committee's recommendation. During the meeting, Respondent's director of finance stated that approximately 13,000 people per year used credit card payment services to pay the Escambia County tax collector. There is no evidence that the director of finance had sufficient additional information to calculate the percent of the tax collector's customers that used credit cards. One of Petitioner's employees, John Parkin, also spoke at Respondent's July 25, 2002, meeting. He confirmed the number of people that pay the Escambia County tax collector using a credit card payment option provided pursuant to a contract between the tax collector and Petitioner. However, Mr. Parkin did not provide Respondent with any information about the percentage of taxpayers who availed themselves of this service. He provided no information to show how bills paid to Respondent and the tax collector were similar or dissimilar. During the meeting, Mr. Parkin stated that Petitioner would waive its $3,750 set-up costs. He did not otherwise attempt to explain how Petitioner's set-up costs could be amortized or recaptured over the first year of operation. Respondent did not allow Petitioner to amend its proposal to eliminate the $3,750 set-up costs. Instead, Respondent accepted the finance advisory committee's recommendation, awarding the contract to E-Commerce Group. Petitioner filed a timely protest. The finance advisory committee considered the protest in an informal hearing. During this proceeding, Petitioner had an opportunity to demonstrate why it should have been considered the lowest bidder. Respondent considered Petitioner's protest on October 24, 2002, in a regularly scheduled meeting. During the meeting, Respondent voted to refer the case to the Division of Administrative Hearings. Respondent acted within the requirements of the RFP when it determined that E-Commerce Group was the lowest responsible bidder primarily because there was no cost to Respondent to start the program. Respondent's RFP clearly indicated that set-up costs would be considered as one of the evaluation criteria. The RFP did not require Petitioner to designate any part of its proposed costs as set-up costs. Petitioner's set-up cost amortized over the estimated first year's transactions is approximately $2.63 per transaction. Additionally, it would take Respondent approximately 108 days (and over 8,000 transactions) to recapture the set-up costs by passing them along to the ratepayers. However, the RFP did not require Respondent to recalculate Petitioner's proposed costs using projected customer usage to amortize or recapture Petitioner's set-up costs before making a decision. In fact, Petitioner's proposal on its face did not indicate that Petitioner intended for Respondent to make such recalculations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order awarding the contract to E-Commerce Group. DONE AND ENTERED this 17th day of December, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 17th day of December, 2002. COPIES FURNISHED: Archibald Hovanesian, Jr., Esquire 21 East Garden Street, Suite 201 Pensacola, Florida 32501 Bradley S. Odom, Esquire Stephen G. West, Esquire Kievet, Kelly & Odom 15 West Main Street Pensacola, Florida 32501 Linda Iverson, Board Secretary Escambia County Utilities Authority Post Office Box 15311 Pensacola, Florida 32514
The Issue Whether Respondent, a “seller of travel,” owes Petitioners a refund for misrepresentation of travel services offered pursuant to an agreement between the parties.
Findings Of Fact Axis is a “seller of travel” and at all times material to this matter, was located in St. Augustine, Florida. On or about October 8, 2017, Petitioners attended a presentation that was conducted by Axis. Petitioners were enthusiastic about the travel service and were impressed by the presentation. Petitioners frequently traveled to trade shows and believed the services would help reduce travel costs. They were particularly interested in vacation packages because they intended to travel to Cancun, Mexico. During the presentation, they were told of the bonus week fee of $97.00. Ms. Page asked specific questions about the costs for a vacation package for Cancun and whether there would be any hidden or additional fees. The presenter assured Petitioners there would be no hidden or additional fees. After the presentation, Petitioners jointly executed a Reservation Services Agreement (Agreement) for a non-exclusive license to access the travel network for a fee of $4,394.00. The fee was paid in two installments of $2,000.00 and one installment of $394.00. The agreement provides, in pertinent part, as follows: Customer desires to enter into this Agreement reservation services applicable to vacation packages, nightly stays, bonus weeks, fantasy getaways, activities and excursions, cruises, car rentals, golf discounts, dining discounts, hotels and luxury condominium and villa rentals (“Network Benefits”). The Customer acknowledges that the Network Benefits may be changed from time to time. * * * 8. Discount Variation All benefits and discounts conferred through this Agreement vary greatly based on the characteristics of the vacation unit or type, the time of year, space availability, and/or the rates charged by those parties listing the accommodations for rent through the Network. Customer acknowledges that he/she has been advised that while some discounts may be significant, these same accommodations may not enjoy deep discounts at other times and that deep discounts are not available for some vacation units or types at any time. Customer acknowledges that the value in this License is expected to be realized over time contingent on the frequency of the use and that the Purchase Price is not guaranteed to be recovered on a single vacation, the first year, if Customer does not take vacations, or if the vacation choices are not tailored offerings. * * * 17. Member Best Price Guarantee Customer shall receive the Best Price Guarantee if Customer finds lower prices on Equal Arrangements through a competing vendor. To access the guarantee, Customer must secure a confirmed reservation through the Network that displays the Member Price Guarantee checkmark, pay for the reservation in full and receive a valid confirmation number. The sections on the website included in the Best Price Guarantee are vacations (i.e. Accommodations, Cruises, Vacation Packages, and Worldwide Tours) and vacation add-ons (i.e. Car Rentals, Activities and Golf). Airfare not included. Eligible claims must be submitted within 24 hours from the time the original fully paid reservation is made and meet all the Terms and conditions listed in full on the Website, must be in US dollars, must be an identical comparison to what was purchased and must be publicly viewable via the internet (i.e. the general public must be able to view the rate on a website, as it does not apply to consolidator fares, fares that have been acquired through auction or bid, or any Internet fares that cannot be independently verified as to the price and exact itinerary) and available and bookable (i.e. the rate is currently available and can be reserved online). Equal Travel Arrangements shall be defined as the exact same arrival and departure dates, the exact same property, the exact same room or cabin classification, the exact same room or cabin size, the exact same cruise line, and the exact same itinerary. Reservations excluded from the Best Price Guarantee include Non- Refundable reservations, Airfare and reservations made or purchased with Reward Credits in full or in part. If the claim is found to be valid, Customer will be credited with 110% of the difference to (sic) in the form of Reward Credits. * * * 25. Entire Agreement This instrument contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements, written or oral, with respect to such subject matter. It may not be changed orally but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification, extension or discharge is sought. * * * By signing below, the parties to hereby execute this Agreement on the Execution Date of this Agreement as identified herein. The Licensee acknowledges and agrees that this Agreement is subject to all terms and conditions set forth herein. The Licensee further acknowledges having read the entire Agreement and agreed to each of its provisions prior to signing below. * * * YOU HAVE THE RIGHT TO CANCEL THIS CONTRACT AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD (3) CALENDAR DAY AFTER THE DATE OF THIS CONTRACT. UPON CANCELLATION, YOU WILL RECEIVE A FULL REFUND, WITHOUT ANY CHARGES OR PENALTY, WITHIN TEN (10) DAYS UNLES SOONER REQUIRED BY APPLICABLE LAW. THIS RIGHT IS NONWAIVABLE. TO EXERCISE YOUR RIGHT TO CANCEL, YOU MUST SEND A WRITTEN NOTICE STATING THAT YOU DO NOT WISH TO BE BOUND BY THIS CONTRACT. THE NOTICE MAY BE SENT BY EMAIL, FACSIMILE: 713-535-9239, OR BY DEPOSIT FIRST-CLASS POSTAGE PREPAID, INTO THE UNITED STATES MAIL: 13416 SOUTHSHORE DR. CONROE, TX 77304. In November 2017, Petitioners used the network software for the first time. Petitioners searched for accommodations in Cancun, Mexico at an all-inclusive resort. The resort had a price of $129.00 instead of $97.00 and a mandatory resort fee in the amount of $135.00 to $185 per person per day. Petitioners found accommodations at three different all-inclusive resorts, which also required an additional mandatory resort fee. While rooms were available for the price offered by using the software, Petitioners were dissatisfied because the resorts required a resort fee. At an unknown time after using the software, Petitioners called Respondent but did not receive a return call. On December 14, 2017, Petitioners sent text messages to Jonicar Cruz seeking a refund because the service was not what was represented to them at the presentation. Ms. Cruz offered to assist Petitioners with the software program. Ms. Cruz also directed Petitioners to contact another staff member, as she was no longer an employee of the company at that time. Petitioners’ calls and emails to the other Axis staff member were left unanswered. On February 7, 2018, Petitioners filed a complaint with the Better Business Bureau, and on February 13, 2018, Petitioners filed a complaint with the Office of Citizen Services, Florida Attorney General’s Office, and the Better Business Bureau. In April 2018, Petitioners filed a complaint with the Department. Petitioners admitted that they did not submit a written letter of cancellation of the agreement during the three-day cancellation period. Ms. Cruz testified that she did not receive any written request to cancel the agreement during the cancellation period. Ms. Cruz also testified that while she could not affirm certain representations made by the presenter, she explained to Petitioners the process for the price match guarantee, and that a resort fee may be associated with all-inclusive resorts.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioners, John Elkins and Mary Page’s, claim against Axis and the surety bond be DENIED. DONE AND ENTERED this 4th day of September, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 September, 2018. COPIES FURNISHED: W. Alan Parkinson, Bureau Chief Department of Agriculture and Consumer Services Rhodes Building, R-3 2005 Apalachee Parkway Tallahassee, Florida 32399-6500 (eServed) John E. Elkins Mary Page Apartment 1605 7507 Beach Boulevard Jacksonville, Florida 32216-3053 (eServed) Michael Borish Axis Getaways Systems, LLC 965 North Griffin Shores Drive St. Augustine, Florida 32080-7726 Axis Getaways Systems, LLC Suite B 108 Seagrove Main Street St. Augustine, Florida 32080 Travelers Casualty Surety Company of America One Tower Square Hartford, Connecticut 06183 Bryan Greiner Axis Getaway Systems, LLC 912 Ocean Palm Way St. Augustine, Florida 32020 Tom A. Steckler, Director Division of Consumer Services Department of Agriculture and Consumer Services Mayo Building, Room 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Stephen Donelan, Agency Clerk Division of Administration Department of Agriculture and Consumer Services 407 South Calhoun Street, Room 509 Tallahassee, Florida 32399-0800 (eServed)
The Issue The issue in this case is whether petitioner's claim against the bond posted by respondent with the Department of Agriculture and Consumer Services should be granted.
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, Faye C. Terry, has filed a claim against the bond in the amount of $915.00 alleging that Passport failed to perform on certain contracted services. In August 1990, petitioner purchased a travel certificate entitling the holder to a five-day, four-night vacation package to the Bahamas for $329.00. The certificate was purchased from United Marketing Group (United), an Ohio telemarketeer authorized to sell the certificates on Passport's behalf. The certificate carried the name, logo, address and telephone number of Passport. The certificate purchased by petitioner expired in August 1991. When petitioner discovered she could not use the certificate by the expiration date, on August 26, 1991, she paid a $50.00 fee to Passport to extend the life of the certificate for an additional year, or until August 30, 1992. In June 1991, all of the assets and liabilities of Passport were acquired by Incentive Internationale Travel, Inc. (Incentive), a corporation having the same address, telephone number, owners, and personnel as Passport. In addition, Passport's status as a corporation was dissolved at a later date in 1991. Even so, Incentive continued to fulfill all travel certificates sold by Passport, and all travel described in those certificates was protected by Passport's bond. Petitioner originally requested to use her travel certificate in August 1991 and sent Passport a $90.00 reservation deposit in conjunction with her request. When she was unable to travel on that date due to a personal conflict, she requested to use her certificate in June 1992. She was told that no accommodations were available. Instead, she was booked to travel in August 1992. Accordingly, on July 12, 1992, she paid Incentive for the cost of an additional traveler (her mother) to accompany her on the trip plus extra accommodations in Fort Lauderdale and certain fees and taxes. Her total payment to Passport and its successor now totaled $915.00. In a form letter dated July 24, 1992, or just twelve days after the additional monies were paid by petitioner, Incentive advised her that it had filed for bankruptcy that same date and that her trip "has been cancelled." She was told that the bankruptcy court would send her a form to file a claim for a refund. To date, she has received no 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 granted, and she be paid $915.00 from the bond. DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1994. COPIES FURNISHED: Faye C. Terry Post Office Box 1092 Laurens, South Carolina 29360 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
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
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 The issue is whether Jonathan A. Mantay, violated the Florida Code of Ethics for Public Officers and Employees.
Findings Of Fact Pursuant to Article II, Section 8, Florida Constitution, and Section 112.320, the Commission is empowered to serve as the guardian of the standards of conduct for the officers and employees of the state. Pursuant to Sections 112.324 and 112.317, the Commission is empowered to conduct investigations and to issue a Final Order and Public Report recommending penalties for violations of the Code of Ethics for Public Officers and Employees (Code of Ethics). Respondent Mantay is subject to the Code of Ethics. Mr. Mantay, during times pertinent, was County Manager of Bay County, Florida, and is a reporting individual, as that term is used in the Code of Ethics, and is required to file annual financial disclosures with the Bay County Supervisor of Elections, as provided by Section 112.3145(2)(c). In 2001, Mr. Mantay left his position and moved to metropolitan Portland, Oregon. On or about August 31, 1999, the Bay County Commission was addressing the problem of inmate overcrowding in its county correctional facilities, which were operated by CCA. On or about that time, the county correctional facility exceeded capacity by about 352 inmates. The Bay County Commissioners decided to address the issue. The Bay County Commission directed Mr. Mantay and his staff to study the problem and to recommend courses of action. As a result of the study, two possible courses of action were recommended. One possible course of action was the adoption of the "Lifeline" program operated by CCA in Nashville, Tennessee, which CCA claimed would reduce recidivism by teaching inmates life skills and addressing drug abuse, among other things. CCA's corporate headquarters is located in Nashville. The other possible course of action was to emulate the program operated by Sheriff Joe Arpaio, of Maricopa County, Arizona. Sheriff Arpaio's program consists of housing inmates in tents that are sufficiently primitive that inmates, after having had the tenting experience, avoid repeating it either by not committing crimes in Maricopa County, or by committing them elsewhere. In order to evaluate the two courses of action, the Bay County Commission decided that three commissioners and certain staff should travel to the two sites and evaluate the programs. Mr. Mantay, Chief of Emergency Services Majka, Jr., and County Attorney Zimmerman, were among those who were designated to travel to Nashville and Phoenix. Mr. Mantay was not involved in planning the trip. He relied on the County Attorney's Office to coordinate the event. County Attorney Zimmerman called Mr. Wiggins on February 6, 2000, and inquired if CCA would pay for the airline tickets to Nashville. Mr. Zimmerman told Mr. Wiggins, when he asked CCA to pay for the trip, that having CCA pay the airfare, ". . . was the County's preferred way of doing things, and, in fact, that's when he recounted the story of the County taking some trips to New York and maybe some other places." Mr. Wiggins was not authorized by CCA to approve the payment of travel expenses for customers or others. He forwarded County Attorney Zimmerman's request to James Ball, his supervisor. Subsequently, Mr. Wiggins happened upon the CEO of CCA, a Dr. Crants, while walking about the Nashville headquarters of CCA. Dr. Crants directed Mr. Wiggins to fund the trip. Ultimately, as a result of these conversations, CCA paid Trade Winds Travel, Inc., of Panama City, Florida, for the cost of the air travel for the entire Bay County contingent to Nashville, and thence to Phoenix, and back to Panama City. The evidence is not conclusive as to whether it was the intent of CCA to fund the trip beyond Nashville, but they paid for the cost of the airfare for the entire trip. The request for the payment and the request to visit CCA in Nashville was driven by Bay County's needs, not by the needs of CCA. Bay County was one of CCA's most valued customers, however, and CCA was motivated to respond to their request. This was especially true because one of CCA's first contracts to provide correctional services was with Bay County. County Attorney Zimmerman's "marching orders" for many years was that if there was an opportunity to require a third party to pay an expense, then the third party should pay rather than Bay County. That policy is reflected in a variety of Bay County ordinances including the requirement that developers pay for the cost of permitting. The third party payor policy was also reflected in a 1997 trip where Westinghouse was required by the County Commissioners to pay for the commissioners' and County staff's trip to Vancouver, B.C., and Long Island, New York, to evaluate the transfer of the resource recovery facility to another vendor. This was the trip that County Attorney Zimmerman discussed with Mr. Wiggins. This policy was set forth in a letter by County Attorney Zimmerman dated October 30, 1997, which informed the County Commissioners that all expenses in connection with their travel, and with the travel of staff, would be funded by Westinghouse. He further stated that, "[it] is our opinion that the payment of these necessary expenses are not 'gifts,' as that term is defined in State law." Prior to the trip to Nashville, Mr. Mantay had a discussion with County Attorney Zimmerman with regard to whether the fact-finding trip would be "legal." One of the reasons he asked that question was that County Commissioners would be traveling together and he was concerned about "sunshine" issues. County Attorney Zimmerman said that the trip was legal. Mr. Mantay also recognized that this trip, like the trip to New York and British Columbia, was different from attending a seminar alone. Mr. Mantay received his airline ticket when a courier from Trade Winds Travel brought it to him, along with an invoice that he sent to Mr. Zimmerman. On Thursday, February 24, 2000, Messrs. Zimmerman, Majka, and Mantay, traveled with Bay County Commissioners Danny Sparks, Richard Stewart, and Carol Atkinson, and a television reporter, Carmen Coursey, by commercial air, to Nashville, Tennessee. On Saturday, February 26, 2000, they traveled to Phoenix, Arizona, and they returned to Panama City on Tuesday, February 29, 2000. The trip was authorized by the Bay County Commission subsequent to several public discussions concerning the need for an on-site visit to Nashville and Phoenix. There was a legitimate public purpose for the trip. Channel 13 television news reporter, Carmen Coursey accompanied the officials. It is clear that there was nothing about the trip that was accomplished sub rosa. The airfare was paid by CCA directly to Trade Winds Travel, Inc. CCA did not ask for or receive reimbursement from either Bay County or the travelers. The cost of Mr. Mantay's airfare for the entire trip was $1,257. Mr. Mantay did not learn that CCA paid for the airfare until 2003 when he was notified of the ethics investigation. Mr. Mantay at the time of the trip had no reason to contemplate the cost. After learning that CCA paid the tariff, he also learned that the cost of the trip exceeded $100. Upon arrival in Nashville, Mr. Mantay, and the other travelers were greeted by Mr. Wiggins, who transported them to the Downtown Courtyard Marriott Hotel in a van. The cost of the transportation was paid by CCA, and CCA neither asked for nor received reimbursement from Bay County or the travelers. The value was not established. Mr. Mantay did not know who paid for the ground transportation. The travelers ate the evening meal, February 24, 2000, as a group. Someone paid for Mr. Mantay's dinner, but the record does not indicate that CCA paid for it. On Friday, February 25, 2000, Mr. Mantay and the other travelers toured the Davidson County (Tennessee) Correctional Facility from 9:00 a.m. until noon. They ate lunch at the CCA corporate headquarters provided by CCA. That afternoon they met with Mr. Wiggins and other representatives of CCA. They discussed the possibility of CCA providing "Lifeline" and "Chances" programs operated by CCA, to Bay County. That evening, at CCA's expense, Mr. Mantay and the other travelers were transported to a dinner that was paid for by CCA. The cost of the transportation and dinner was paid by CCA, and CCA neither asked for nor received reimbursement from Bay County or the travelers. Mr. Mantay was not aware of either the cost of the dinner or who paid for it. Mr. Mantay and the other travelers stayed two nights at the Marriott at a cost of $224.24. The cost of the hotel was paid by CCA, and CCA neither asked for nor received reimbursement from Bay County or the travelers. Mr. Mantay learned after checking out from the Marriott, on February 26, 2000, when he attempted to pay a personal telephone bill, that CCA had paid the hotel bill, but there is no evidence of record that he knew the amount, or that it was an amount more than $100. No evidence was adduced proving that Mr. Mantay reasonably believed at that time that it was of a value of more than $100. Mr. Mantay paid cash for his personal telephone call during the check-out process. On Saturday, February 26, 2000, Mr. Mantay and the other travelers departed for Phoenix by air and observed Sheriff Arpaio's program the following Monday morning. They also toured the Phoenix Fire Department. The travelers, with the exception of County Attorney Zimmerman, stayed at the San Carlos Hotel. Mr. Mantay 's hotel bill in Phoenix was paid with a credit card issued to him by Bay County. On Tuesday February 29, 2000, they all returned to Panama City. Bay County originally contracted with CCA to operate their detention facilities on September 3, 1985. This contract had a term of 20 years; however, it was amended on September 16, 1996, to reflect an expiration date of September 24, 1999. Other extensions followed. An amendment dated June 18, 2000, provided that "CCA shall operate the 'Lifeline Program' through September 1, 2001." On May 15, 2001, the contract was extended to September 30, 2006. Mr. Mantay did not derive any person financial benefit as a result of CCA paying the lodging expenses in Nashville or as a result of CCA paying for his airfare. At no time has he attempted to reimburse CCA for the cost of the trip. Mr. Mantay did not receive per diem or any amount in excess of the actual cost of the trip. The entity receiving a benefit from the trip was Bay County. Mr. Mantay had a County credit card in his possession but by County policy he was not allowed to charge meals on it. He did, as noted, use it to pay the hotel bill in Phoenix. His usual practice, when traveling on behalf of the County, is to obtain receipts and file an expense report at the conclusion of the trip. He would thereafter be reimbursed for his travel expenses. He did not file an expense report subsequent to this travel. It is found as a fact that the cost of the airfare to Nashville and back to Panama City and the cost of the hotel in Nashville totaled more than $100 and Mr. Mantay became aware that the cost, when aggregated, was more than $100. Mr. Mantay could not have learned this, however, until more than three years after the trip because that is when he learned that CCA had paid for the airfare. It was not uncommon for Mr. Wiggins and other CCA officials to appear before the Bay County Commissioners on behalf of CCA, or to otherwise interact with representatives of CCA. Brad Wiggins was a lobbyist, as that term is defined in Section 112.3148(1)(b)1., and others interacted with Bay County on behalf of CCA and they were lobbyists also. During times relevant, Bay County did not maintain a lobbyist registration system.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics issue a Final Order and Public Report finding that Jonathan A. Mantay did not violate Section 112.3148(4), Florida Statutes, and dismissing the complaint filed against him. DONE AND ENTERED this 17th day of August, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 17th day of August, 2006. COPIES FURNISHED: Linzie F. Bogan, Esquire Advocate for the Florida Commission on Ethics Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Albert T. Gimbel, Esquire E. Gary Early, Esquire Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32319-5709 Philip C. Claypool, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32319-5709
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, Barbara Bradshaw, has filed a claim against the bond in the amount of $435.40 alleging that Passport failed to perform on certain contracted services. For touring a timeshare resort in early 1992, petitioner received a travel certificate as a gift. After paying a $179.00 validation fee, the certificate entitled the holder to a five day, four night stay in the Bahamas. The certificate carried the name, address and logo of Passport International Express, a fictitious name then being used by Passport. Passport's assets and liabilities were assumed by Incentive Internationale Travel, Inc. (Incentive) in June 1991, and the corporation was dissolved sometime in 1991. Even so, Incentive continued to sell Passport's travel certificates at least through April 1992, when petitioner received her certificate. Therefore, the travel services described in those certificates were protected by Passport's bond. To validate her certificate, on April 17, 1992, petitioner sent Passport International Express a check in the amount of $179.00. Thereafter, she upgraded her accommodations, purchased additional land accommodations, and paid for port taxes. These items totaled $242.00, and were paid by check sent to Incentive on May 26, 1992. Throughout this process, petitioner assumed she was still dealing with Passport since she was never formally advised that Passport had been dissolved or that Incentive had assumed all of Passport's obligations. Petitioner was scheduled to depart on her trip on July 24, 1992. On July 15, 1992, Incentive mailed her a form letter advising that it was necessary to "temporarily delay" her trip due to "circumstances beyond (its control.)" She was offered several options, including a total refund of her money to be made in January 1993. She opted for a refund. To date, however, nothing has been paid, and Incentive is now subject to bankruptcy court protection.
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 that she be reimbursed from the bond in the amount of $421.00. 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: Barbara Bradshaw 1169 La Mesa Avenue Winter Springs, Florida 32708 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
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, Helen Stahler, has filed a claim against the bond in the amount of $198.00 alleging that Passport failed to perform on certain contracted services. In response to an offer run in a local newspaper on an undisclosed date in early 1991, petitioner agreed to purchase a five-day, four-night trip for two to the Bahamas at a cost of $99.00 per person. For this, she wrote two checks payable to Passport, each in the amount of $99.00. Although Passport has no record of the transaction, it may be reasonably inferred that the advertisement was run by, and the package purchased directly from, Passport since petitioner's checks were endorsed by Passport and deposited in a bank used by that entity. After receiving a videotape, brochure and travel certificate, petitioner attempted by telephone to reserve certain dates for her trip. Because the certificate could not be used on a weekend, a fact not known at the time the certificate was purchased, petitioner became frustrated and requested a refund of her money by letter dated January 27, 1992. To date, she has never received 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 granted in the amount of $198.00. 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: Helen Stahler 11200 Walsingham Road, Number 69 Largo, Florida 34648 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
