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, R. Jane Frazier, has filed a claim against the bond in the amount of $813.00 alleging that Passport failed to perform on certain contracted services. On June 4, 1990, petitioner purchased a travel certificate from Jet Set Travel, a Maryland telemarketeer authorized to sell travel certificates on behalf of Passport. The certificate entitled the holder to fourteen nights' accommodations in Hawaii plus roundtrip airfare for two persons, with all travel arrangements to be made by Passport. The certificate carried the name, address and logo of Passport. During petitioner's dealings with Passport's agent, it was represented to her that for $89.00 per night, she would receive a two bedroom, oceanfront condominium. This constituted a misrepresentation on the part of the agent since the rooms were actually more expensive. Relying on that representation, petitioner authorized a $328.00 charge on her credit card payable to Jet Set Travel to be used as a credit on services purchased in Hawaii. She also paid a $50.00 refundable deposit to Passport. In August 1990, petitioner contacted Passport regarding travel dates and was told the charge on her room would be $124.00 per night, and not $89.00 per night as promised by Jet Set Travel. In charging this amount, Passport relied upon its brochure which priced the accommodations in the range of $89.00 to $124.00 per night, with the highest price for the type of room selected by petitioner. Fearing that she would lose her $328.00 fee and $50.00 deposit if she did not pay the higher amount, petitioner reluctantly agreed to send a cashier's check in the amount of $1,406.00 to Passport, which represented fourteen nights' lodging at $124.00 per night. Finally, before she departed on the trip, petitioner was required to pay another $25.00 miscellaneous fee to Passport, the basis for which was never explained. When petitioner arrived in Hawaii on October 11, 1990, she discovered that her assigned accommodations for the first week at the Kona Reef were unavailable because Passport had failed to make a reservation. Accordingly, she was forced to purchase five nights accommodations at the Kona Reef for $524.02 plus two nights at another facility for $248.00. The accommodations for the second week were satisfactory. After petitioner brought this matter to the attention of Passport, she acknowledged that she received a refund check for the first seven nights' stay, although she says she can't remember if it was for all or part of her out-of- pocket costs. Passport's contention that its books reflect an entry that she was paid for the entire amount was not contradicted although neither party had a cancelled check to verify the actual amount of the payment. Passport's testimony is accepted as being the more credible on this issue. Because petitioner relied on a misrepresentation by Passport's agent as to the type and price of accommodations being offered, she is entitled to be reimbursed her $50.00 refundable deposit (which was never returned), the $25.00 miscellaneous fee paid on September 26, 1990, for which no justification was shown, and the difference between the originally agreed on price ($89.00 per night) and the actual price ($124.00) for the last seven nights accommodations, or $245.00. Accordingly, she is entitled to be paid $320.00 from the bond.
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 $320.00 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: R. Jane Frazier 3070 Meadow Lane Mobile, Alabama 36618-4634 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 At all times pertinent to the allegations contained in the Complaint filed by Ms. Morris, she was a resident of Pinellas County, Florida. Respondent, Patrick Marzouca, owned and operated and currently owns and operates American Exchange Car Rental with main office located in Clearwater and satellites located elsewhere in Pinellas County, Florida. In December, 1987, Marcia Morris, Petitioner herein, answered a newspaper advertisement for rental agents placed by American Exchange Car Rental, and was interviewed for the position by Susan Johnson. Shortly thereafter, she was telephoned by Mr. Marzouca, who had been in the office at the time Ms. Morris was interviewed, and who told her to come in to work the next day. Because Mr. Marzouca had been a bit too forward in his approach, reportedly stating, "I want you. I need you as bad as blood.", Ms. Morris declined employment at that time. However, in March, 1988, she did start work at American exchange because of her relationship with Kathy Higgins, also an associate at American, with whom she had worked at the airport. Ms. Morris had previously worked for several rental car agencies and at the time of her employment by American, had, she claims, never been terminated from employment with any of them for cause. As shall be seen below, she was terminated from employment with one agency for failure to disclose a prior DUI conviction which rendered her ineligible for insurance to operate an automobile. As compensation for her services to American, Ms. Morris was to receive $250.00 for a 40 hour work week as a rental agent, and was to have the use of a company car without restriction, if available. Her work hours were from 10:00 AM to 6:00 PM. Work hours were set by the agents themselves so long as the office was covered, but the overall time each office was open, and the length of shift, was determined by Mr. Marzouca and Ms. Higgins who was the overall manager. Individual agents' times were not entered on a time card, but were determined by the agent's initials used when entering or leaving the computer at the time of beginning and ending work. The $250.00 per week compensation was paid regardless of the number of hours worked, and each agent received a commission of 10% on charges for collision waiver sold. The $250.00 per week compensation was paid weekly, but the commission was paid every three months. The car furnished by the company was in her possession the entire time she worked there. Ms. Morris considered herself an employee of American, and was never told by anyone that she was an independent contractor. When she questioned the fact that neither withholding taxes nor social security contribution were taken from her pay, she was advised not to worry about it as the Respondent's lawyer would handle it at the end of the year. The female rental agents were required to wear an American Exchange polo shirt, supplied by the company, and either slacks or skirts. Mr. Marzouca preferred the females wear short skirts, but Ms. Morris would not do that. From the start, even the first day of work, Mr. Marzouca began making comments to Ms. Morris such as, "You're so beautiful, Baby, I want to marry you." He tended to use the word, "Baby" a lot and not a day went by, she claims, without his offering her his unwanted attentions. Over the time she worked there, he offered to buy her clothes so he could attend parties with her; and he offered to buy her jewelry, stating, "I can see a gold necklace around your beautiful neck", and other similar comments. Ms. Morris contends she told Mr. Marzouca on an almost daily basis to "Leave me alone." She also complained to Ms. Higgins and to her coworkers about the situation, seeking advice as to where to draw the line. Since she was single, lived alone, and liked her income, she did not file a formal complaint at first, though she did not like what was going on, and did not like Mr. Marzouca's attentions. She never saw him behave this way or any comparable way toward a male employee. Ms. Morris also worked at Respondent's New Port Richey office. Things were better there, as opposed to the main office, because she was not being "hit on" every day, since Mr. Marzouca did not come to that office on a daily basis. She volunteered to staff that office primarily to get away from him, but this office did not remain open, and when it was closed, she was returned to the Cleveland Street office to work. From time to time, Ms. Morris was requested by Mr. Marzouca to take his aged mother shopping. She claims that when she protested, she was told that she had to do it and did so at least twice during working hours in the afternoon. Mr. Marzouca, on the other hand, claims his mother and Ms. Morris had a friendly relationship until all this ill feeling started. According to him, on at least one occasion, Ms. Morris suggested that his mother spend the day with her for lunch and shopping. Ms. Morris, he claims, used to call in the evenings to talk with his mother and would often ask about her. In response, his mother would often buy small gifts for Ms. Morris. Ms. Morris, he contends, never complained to him about having to take his mother shopping and he categorically denies ever threatening her with the loss of her job if she complained about his mother to him. There is no indication he ever did threaten her, and in any case, there is little relationship between forcing his mother's company on Ms. Morris and job discrimination based on sex. On one occasion, in June, 1988, she was in a car with Mr. Marzouca and another male employee en route to the Tarpon Springs location to shuttle cars. When the other employee went into a store to get some cigarettes, Mr. Marzouca allegedly said to Ms. Morris, "Oh Baby, I'd love to lay my head between your tits." At this time, she was seated in the front seat of the car with Mr. Marzouca. Mr. Marzouca categorically denies this happened. Considering his demonstrated proclivity toward this type of conduct, however, it is found that it did. On another occasion, Mr. Marzouca came up behind her at the rental counter and turned her upside down by the heels. Apparently this was in response to her comment that she needed more oxygen to her brain when she was having difficulty with the computer. Mr. Marzouca admits to doing this, but claims it was done in a jocular fashion at a time when all the employees were laughing and joking together. Though he claims Ms. Morris laughed about it at the time, she, nonetheless, felt strongly enough about it to make it a portion of her complaint. On another occasion, Ms. Morris was offered a television set as a gift by Mr. Marzouca. She had previously mentioned she was moving from one apartment to another and had no furniture or television. This comment was made in the presence of Mr. Marzouca who offered her a van to help her move. A few weeks later he took her to his car and showed her a television set he had bought for her as a gift. She declined to accept it. On another occasion, she accepted a ride with Mr. Marzouca on his boat and claims, now, that this was a form of harassment. She did not relate, however, that, as was brought out later, her sister and her sister's children were also on the boat at the time. Ms. Morris' sister was then and still is an employee of American. Ms. Morris also had breakfast with Mr. Marzouca on at least one occasion but never went on a date with him. Mr. Marzouca relates he has a charge account with a delicatessen located near his main office at which he has left standing orders that any employee who wishes to eat there and who cannot pay for the meal may do so at his expense. Ms. Morris concedes Mr. Marzouca never touched her sexually throughout their relationship, He never threatened her job because she would not go out with him, but she was annoyed by his continual asking her for a date. She states that her current feelings toward him are ambivalent. She neither likes nor dislikes him but because he was "pushy", and she didn't like what he was doing with regard to her, she filed the complaint. Though she first denied it, she admitted to telling others that she did not like the Respondent because of the way he treated her. In July, 1988, Ms. Morris' relationship with American Exchange was terminated at their request. At that time, she was told it was because she caused too much confusion in the office, and when she demurred, Mr. Marzouca advised her it was his company and he could do what he wanted. Other matters presented at the hearing indicate the termination was based on Ms. Morris' failure to remain at the office beyond the close of the business day on one occasion, July 4, 1988 to handle a rental that was to be picked up after office closing hours. When asked to stay by Ms. Higgins, her manager, she flatly refused and left the office just a few minutes after the close. As a result, the rental was not consummated. Ms. Morris claims she waited until shortly after 5:00 PM that day and then left believing that the reservation had been cancelled at three or four that afternoon, and there was no reason to stay. Immediately after their conversation, Ms. Higgins called Mr. Marzouca and reported the situation to him. In the course of that conversation, she described Ms. Morris as a "bitch" and recommended he get rid of her. When she left the office against Ms. Higgins' request on July 4, 1988, she took a company car with her. She did not work on July 5. On July 6, the car was picked up outside her home by Mr. Marzouca and Ms. Higgins. At the time, Ms. Morris had not yet left for work, and when she called in thereafter, requesting a ride to work, Mr. Marzouca told her to stay home and that he would come to her place to talk. She refused and hung up on him. When she called back a few minutes later, Mr. Marzouca told her she was fired but later offered her a job working in the Tarpon Springs office on Sundays from 8:00 AM to 4:00 PM. She declined this offer claiming she needed a full time job. Kathy Higgins worked for American from February, 1988 to August, 1988 as manager of the Cleveland Street office. At that time, American had four branch locations and employed 6 employees in addition to the bookkeeper. At one point, she worked with both Ms. Morris and Mr. Marzouca, and during that period, she heard Mr. Marzouca use the word, "Fuck"; observed him pick Ms. Morris up and put her over his shoulder; make comments about her such as, "That girl has a cute ass. I'd like to fuck her." on an almost daily basis. Each time Mr. Marzouca would approach Ms. Morris in Ms. Higgins' presence, he was always rebuffed. To the best of Ms. Higgins' observation, Ms. Morris never encouraged Marzouca's conduct, and from time to time Ms. Higgins would ask him to leave the girl alone. Whenever she did this, he would go off into the other room. Even Ms. Higgins indicates that male employees were treated differently than females in areas other than those sexually oriented. On one occasion, Mr. Portei, a male employee, left the office without permission for a couple of hours to get his taxes done, leaving the office unattended. When Ms. Higgins told Mr. Marzouca about this, he merely called Mr. Portei to ask why he had left. Nothing else was done about it. Ms. Higgins was on vacation when Ms. Morris was terminated. She had previously discussed Ms. Morris' performance with Mr. Marzouca. At first, during their association, he appeared to like Ms. Morris, but his attitude changed and he advised Ms. Higgins he wanted Ms. Morris out because she was argumentative. As a result, Ms. Higgins talked with Ms. Morris at the New Port Richie office to try to work things out. Sometime thereafter, she advised Mr. Marzouca to stop asking Ms. Morris out, and in response, Marzouca indicated that if he continued, Ms. Morris might quit. Mr. Marzouca admits to having Ms. Morris out on his boat with him and her sister; to having invited her to his home, which she accepted; to offering her the TV which, he claims, he had purchased for his girlfriend and which he offered to Ms. Morris when she admired it; to asking Ms. Morris out on a date once or twice; to allowing Mr. Portei to take off without discipline, but contends Portei had an entirely different type of job; and to using the "F" word "once or twice." He denies, however, having asked Ms. Morris her dress size; having suggested a sexual relationship to her; having asked her to go to Jamaica with him, as she alleged; and he doubts he ever asked Ms. Morris if he could put his head between her breasts. He had several repeated "discussions" with Ms. Morris about the way she treated customers, but did not seem to be able to get through to her and he fired her because of her attitude and because of her failure to stay at work the evening when requested. Even after that, however, he offered her several days work but then could no longer use her in the organization because business, at that time, was bad. Ms. Morris contends she never received any complaints regarding the way she treated customers, but considering the evidence on balance, it is clear that her performance over an extended period with American was below acceptable standards and was the basis for her termination. Mr. Marzouca's "open" approach to Ms. Morris, much of which he admits to, was observed by Mr. Cote, then an employee of American and an admitted recovering alcoholic and drug abuser. The first time Cote saw Ms. Morris was when Mr. Marzouca brought her to the office where he was working and described her as his "new girl". From this introduction and the descriptions used by Mr. Marzouca, such as "pretty" and "nice" girl, he inferred that there was a personal relationship, as well as a professional one between them. Soon after this, Mr. Cote left Mr. Marzouca's employment but remained in the area in another job. He saw Mr. Marzouca in the office several times and heard the conversations between him and Ms. Morris. Mr. Marzouca's language included the regular use of curse words and it was obvious he did not treat Ms. Morris with respect. He made suggestive remarks to her which were, in Cote's opinion, out of place in an employer/employee relationship. At no time when he saw Mr. Marzouca and Ms. Morris together was Mr. Cote ever under the influence of alcohol or drugs. Similar activity by Mr. Marzouca was observed by Mr. Puglia, Marzouca's landlord at the New Port Richey office. Mr. Marzouca introduced Ms. Morris to him as his new employee and his "future wife." Ms. Morris laughed at that. Over a period of time he noticed that whenever Mr. Marzouca would come to the office where Ms. Morris was working, he would get into an argument with her and use abusive language which Puglia found embarrassing. Mr. Puglia declined an invitation by Mr. Marzouca to go out on his boat with him and Ms. Morris but believes Ms. Morris went. He also recalls her indicating to him that Marzouca made her take his mother shopping and she didn't like it. By the same token, Ms. Katheryn M. King, who was working for Mr. Marzouca when Ms. Morris started, frequently saw the relationship between Mr. Marzouca and Ms. Morris. From what she observed, it was clear they were "not fond" of each other but Mr. Marzouca would flirt with her as he did with all female employees. It was obvious, however, that Ms. Morris did not like it nor did she like to be there when Mr. Marzouca was present. Ms. King was also employed by American when Ms. Morris was terminated. In her opinion, the discharge was the culmination of the bad feelings between them topped off by her refusal to stay one evening for a late pickup. Notwithstanding Ms. Higgins' prior testimony that when she worked for American there were at least 6 employees in addition to the bookkeeper, Mr. Kelly, who fulfills that function for Mr. Marzouca at the Cleveland Street office, indicates that the staff varies, usually being 4 or 5 full time employees plus two part timers, including himself. He writes the payroll checks weekly. The rental people are paid a $250.00 per week draw or guarantee against commissions in addition to a 10% commission on the collision waiver charges. In his opinion, a rental agent can earn between $200.00 and $275.00 per week, depending on experience. However, the $250.00 has consistently been paid to the rental agents each week even if no rental commissions are earned. Hiring of agents and the setting of the draw is done by the manager. Ms. Higgins used to be the manager. Mr. Marzouca claims no knowledge of how Mr. Kelly runs the business books. He gives him only the most basic instructions and trusts Kelly implicitly to do what has to be done. Considering the evidence regarding compensation in its entirety, Mr. Marzouca's claim that he exercises little control over this matter is ingenuous at best and it is found that the $250.00 sum is salary paid to an employee, regardless that no withholding or social security contribution is taken out. Ms. King indicated that she paid the taxes due on her earnings even though Mr. Marzouca agreed to withhold them when she spoke with him about it on several occasions. He never did. In her opinion, she was an employee of American, not an independent contractor, because she had a set number of hours to work, worked regular hours, and had no authority to come and go as she pleased. Her opinion as to her status was, on the basis of the evidence, correct. This brings up the factual issue of the true status of the individuals who worked as rental agents. Here, the facts clearly demonstrate that each rental agent, the individuals being so considered, was paid a flat amount per week "draw" against "commissions", plus an additional 10% commission on sales of collision waiver. Mr. Kelly indicated that the draw was paid regardless of whether any "commissions" were earned and no evidence was presented by American to indicate that any "commissions" on rentals were ever calculated and applied against the draw. Consequently, it must be concluded, and it was so found, that the weekly stipend was not a draw but a salary which was supplemented by the free use of a company car. Further, the working hours were set by the company. Though schedules may have been arranged by the individual employee, the employee was to work a set number of hours on certain days designated by management, and the facility at which they worked was open over hours dictated by management. In addition, the employee was required to wear a particular type of clothing provided by the employer. Taken together, all indicia of employment clearly lead to the conclusion that the relationship was an employer/employee relationship and not that of an independent contractor, regardless of American's possible improper failure to take withholding and Social Security contribution out of the earnings, and it is so found. Since being terminated by American Exchange and Mr. Marzouca, Ms. Morris has been employed by several other car rental agencies, A Plus and USA Car Rentals, with compensation by both being a salary and company car. The job with USA was on an on-call basis but neither job was permanent, nor, she claims, was she fired from either. She was, however, terminated at A Plus because, due to a previous DUI conviction on her record, she was uninsurable, a prerequisite for working at a car rental agency. While working there, she earned $300.00 per week and had the use of a company car, valued at $50.00 per week. She worked there from August through November, 1988 and when she left there, applied for unemployment compensation which was initially denied because there was no record of her having been employed. Upon appeal, however, the decision to deny was reversed and she was awarded unemployment compensation for 6 weeks to 2 months. Ms. Morris had failed to disclose her prior DUI conviction when she went to work at A Plus. Also, when she applied for employment with American, she again failed to disclose her prior conviction because, "She would have preferred to discuss it in person." This contention is without merit, however. She has not disclosed her DUI conviction to any employer since being terminated by Respondent. At the end of 1988, Ms. Morris received a IRS Form 1099 from American but never a Form W-2. She has been working for 10 years, and in addition to the previously mentioned employment, was hired and fired by National Car Rental because, she claims, of a personality conflict with the new female manager. After that, she worked for Payless Rental Car with the old National manager, with whom she got along.
Recommendation Based on the Foregoing findings of Fact and Conclusions of law, it is, therefore: RECOMMENDED that the Community Relations Board of the City of Clearwater, acting as the Commission administering Pinellas County Ordnance 84-10, codified under Chapter 17.5 of the Pinellas County Code, enter a Final Order finding the Respondent, American Exchange Car Rental and Patrick Marzouca not guilty of actionable sexual discrimination against Marcia Morris. RECOMMENDED this 12th day of December, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1989. COPIES FURNISHED: Charles D. Lykes, Esquire 300 Turner Street Clearwater, Florida 34616 John D. Tubhill, Esquire 4695 Ulmerton Road Suite 440 Clearwater, Florida 31622 Ronald McElrath, Director Office of Community Relations City of Clearwater, Florida P.O. Box 4748 Clearwater Florida 34618-4748
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)
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, H. Fleischer, has filed a claim against the bond for $648.95 alleging that Passport failed to perform on certain contracted services. On an undisclosed date in 1991, petitioner responded to a newspaper advertisement promoting a five-day, four-night cruise to the Bahamas for $99.00 per person. After calling a toll-free number, petitioner was told that in order to take the trip, he must purchase a video for $198.00 plus $11.95 postage, or a total of $209.95. Petitioner agreed to purchase the video in order to take advantage of the trip. The advertisement was being run by a telemarketeer in Tennessee who had been authorized to sell Passport's travel certificates. As such, it was acting as an agent on behalf of Passport. In June 1991, the assets and liabilities of Passport were assumed by Incentive Internationale Travel, Inc. (Incentive). Even so, any travel described in certificates sold after that date under the name of Passport was still protected by Passport's bond. Within seven days after receiving the video and other materials, which carried the name, address, logo and telephone number of Passport, petitioner returned the same to the telemarketeer along with a request for a refund of his money. When he did not receive a refund, he filed a complaint with the Department. In response to a Department inquiry, in December 1991 Incentive declined to issue a refund on the ground the video was purchased from a Tennessee firm, and not Passport, and Passport had never received any money from the telemarketeer. Incentive offered, however, to honor the travel certificate by allowing petitioner to purchase a trip to the Bahamas under the same terms and conditions as were previously offered. On July 6, 1992, petitioner accepted Incentive's offer and paid that firm $439.00 for additional accommodations, meals, fees and taxes. Shortly after July 24, 1992, petitioner received a letter from Incentive advising that his trip had been cancelled and that the firm had filed for bankruptcy protection. To date, petitioner has not 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, and he be reimbursed $648.95 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: H. Fleischer 15 Wind Ridge Road North Caldwell, NJ 07006 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, FL 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, FL 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 The sign in question is located one mile west of State Road 79 on Interstate 10. Said sign was photographed by the Department of Transportation sign inspector, who identified and introduced two photographs which were received as Exhibits #1 and #2. Said sign does not bear a permit of the type issued pursuant to Section 479.07, Florida Statutes. Said sign is not located within an incorporated city or town. Said sign bears copy which can be read from the traveled way of Interstate 10. Said sign is located 15.5 feet from the right-of-way of Interstate 10. No substantial and competent evidence was introduced regarding the zoning of the area in which the sign is located or the ownership of the sign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Department of Transportation take no action regarding the subject sign. DONE and ORDERED this 3rd day of April, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Russell A Cole, Jr., Esquire 206 East Iowa Avenue Bonifay, Florida 32425 Phillip S. Bennet, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 John M. McNatt, Jr., Esquire 1500 American Heritage Life Building Jacksonville, Florida 322022
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 The issues are whether, pursuant to section 559.929(3), Florida Statutes (2019), Petitioner has been injured by the fraud, misrepresentation, breach of contract, financial failure, or any other violation of chapter 559, part XI, by Respondent Travbuzz, Inc. (Respondent), for prearranged travel services and, if so, the extent to which Respondent is indebted to Petitioner on account of the injury.
Findings Of Fact Respondent provides prearranged travel services for individuals or groups. Having relocated from New Jersey to Miami, Florida, evidently in 2018, Respondent has been registered at all material times with the Department as a "seller of travel" within the meaning of the Act and holds registration number ST-41461. With Respondent as the principal, the Surety issued a Sellers of Travel Surety Bond bearing bond number 10076529 in the amount of $25,000, effective from June 22, 2018, until duly cancelled (Bond). On November 12, 2019, Petitioner, a resident of San Diego, California, purchased from Respondent one ticket for himself and one ticket for his daughter on the Palace on Wheels: A Week in Wonderland Tour (POWAWIWT) with a departure date of April 1, 2020. Earnestly described by Respondent's principal as a "cruise ship on wheels," the POWAWIWT provides one week's transportation, accommodations, and meals for travelers seeking to visit several of India's cultural and historical landmarks without the inconvenience of changing hotels, finding restaurants, arranging intercity transportation, or, it seems, obtaining refunds for trips that never take place. The purchase price for two POWAWIWT tickets was $8600.40. Additionally, Petitioner purchased from Respondent a guided side trip at one location for $75. At the time of the purchase of the two POWAWIWT tickets, Respondent charged Petitioner's credit card for the required downpayment of $1911.20 for both tickets. By personal check dated January 6, 2020, Petitioner timely paid the balance due for both tickets of $6689.20. By personal check dated February 19, 2020, Petitioner paid the $75 charge for the side trip. The credit card issuer duly debited Petitioner's account and credited Respondent's account for the charged amount, and Respondent obtained the funds represented by both checks. Petitioner later disputed the credit card charges, and the credit card company debited the $1911.20 amount in dispute from Respondent's account. Although Petitioner claimed that his account had not been credited for this amount, as of the evening prior to the hearing, Respondent's credit for these charges had not been restored, so the $1911.20 still seems to be in the possession of the credit card issuer. Despite availing himself of the remedy available under the Act, Petitioner has not authorized the credit card issuer to restore to Respondent's account the credit for the $1911.20. This case is a byproduct of the emerging Covid-19 pandemic, which, as discussed below, caused RTDC to cancel Petitioner's April 1 POWAWIWT. According to Respondent, RTDC has refused to refund Petitioner's payment of $8600.40 gross or about $8000 after deducting Respondent's 7% commission.1 Although Respondent's principal deflects the blame to RTDC for its no-refund policy and to Petitioner for supposedly waffling on the relief that he sought for the cancelled trip, Respondent quietly has declined to refund its commission of approximately $600, as well as the additional $75 payment, although the failure to refund the $75 may be explained by Petitioner's failure to address this negligible amount until he prepared the Prehearing Statement in this case. 1 Respondent's principal testified that Respondent discounted the price of the April 1 POWAWIWT by reducing its standard 17% commission, which would approximate $1460, to 7%, for a 10% discount, or about $860, leaving a net commission of about $600. Respondent's factual defenses to Petitioner's refund claim include the several defenses set forth above and a new defense asserted for the first time at the hearing: Petitioner cancelled his POWAWIWT before RTDC cancelled his POWAWIWT, so Petitioner was never entitled to a refund under the terms of the Contract. This defense oddly finds more support in Petitioner's allegation that he demanded a refund before RTDC cancelled the April 1 POWAWIWT than in Respondent's allegation that Petitioner did not demand a refund until the March 13 email, in which he reported that RTDC had cancelled the April 1 POWAWIWT.2 Regardless, this new defense is no more supported by the facts than Respondent's previously stated defenses. Respondent's who-cancelled-first defense is based on emails and telephone calls. Petitioner's emails portray his consistent efforts to obtain a refund for the trip, but only after RTDC had cancelled the April 1 POWAWIWT. The lone email of Respondent's principal serves to reveal Respondent's inability to respond meaningfully to Petitioner's efforts to protect his travel purchase and raises the possibility of bad faith on the part of Respondent's principal. On March 9, Petitioner emailed Respondent's principal a Times of India news article that reported that RTDC had cancelled the March POWAWIWTs, but not the April 1 POWAWIWT. This email does not seek to cancel the April 1 POWAWIWT, but expresses concern that RTDC will cancel the trip. On March 13, Petitioner emailed Respondent's principal a Times of India news article that reported that RTDC had cancelled the remaining POWAWIWTs through April. This email complains that RTDC had not 2 This oddity is unsurprising given the patter of each witness's testimony. Respondent's principal peppered his testimony with false apologies while, in a reassuring tone, he gently deferred and deflected blame and patiently, but mistakenly, insisted that the Contract did not require him to refund monies paid for a train trip that never took place. Petitioner frenetically rebutted each factual defense while somehow missing the salient points that he had paid for a POWAWIWT that never took place, Respondent refused to refund Petitioner's payment, and the Contract calls for a refund. Although a retired appellate attorney for the state of California, Petitioner seems to have grounded his early demands for a refund on natural law, because he appears not to have discovered one of the crucial contractual provisions, as discussed below, until he prepared the Prehearing Statement responded to Petitioner's requests for information, requests advice as to his available options, and asks for some assurance that Petitioner would not lose his payments of $8600 for the train tour plus an unspecified amount "for post trip activities" that are also unspecified. On March 15, Petitioner emailed Respondent's principal a news article in The Hindu that reported that another operator of train tours in India was paying refunds for cancelled trips and all tourist visas into India had been cancelled through April 15. This email implores Respondent to do the right thing and immediately refund the money paid for the cancelled trip. A few hours later, Petitioner emailed Respondent's principal an India West news article that reported that India was now in a complete lockdown and the Indian government had cancelled all nondiplomatic visas. This email asks Respondent's principal to keep Petitioner informed on what RTDC was going to do and expresses hope that RTDC issues refunds. On March 19, Respondent's principal emailed Petitioner that "we are reaching some agreement with our ground operator for the train and this is what is being finalized." The statement clearly discloses no agreement, but, at best, an expectation of an agreement. The email describes the expected agreement to allow Petitioner to take a POWAWIWT during the following season from September 2020 through April 2021, but requires Petitioner to select travel dates within six days and pay whatever fare is in effect at the time of the trip. Respondent's principal never explained why Petitioner had only six days to accept an "offer" that RTDC had not yet authorized its agent to make, might not authorize within the six-day deadline, and might not ever authorize. Respondent's demand for a near-immediate acceptance of a nonexistent offer of a trip at market price was unreasonable and suggests that Respondent's principal was merely trying to induce Petitioner to make an offer in the form of an acceptance, so the principal might have greater bargaining leverage with RTDC. On March 23, Petitioner emailed Respondent's principal, noting a series of unanswered emails and phone calls from Petitioner to the principal since the receipt of the March 19 "offer." Asking for clarification of the terms of the "offer," Petitioner's email concedes that it appears that Petitioner's money is lost and asks merely that Respondent show him the courtesy of calling him, confirming his fear, and providing a full explanation of what happened. Later that day, an employee of Respondent emailed Petitioner and informed him that the principal was suffering from a respiratory disorder and was unable to talk, so that future communications needed to be by email. Petitioner received no more emails from Respondent's principal, who, having returned to the United States after taking a POWAWIWT in early March, was later diagnosed with Covid. The telephone calls are undocumented. The credibility of Respondent's principal started to leave the tracks with the March 19 email of an illusory "offer" with an immediate deadline for acceptance. A month later, in responding to the disputed credit card charge, the credibility of Respondent's principal derailed completely, as he attempted to resecure the $1911.20 credit with material misrepresentations of what had taken place in an email dated April 21 to the credit card issuer. The email claims that Petitioner never cancelled the trip, so he was a "no-show"--a Kafkaesque claim that implies a duty to report for a trip that, undisclosed in the email, the sponsor had cancelled over two weeks prior to departure. The email states that, at the beginning of March, Petitioner called and said he did not feel comfortable taking the trip, but the trains were still running and "'Cancel for Fear'" was not an allowable reason for waiving a cancellation fee--perhaps true, but irrelevant. The email encloses a copy of the principal's March 19 email, states that Petitioner did not accept this "offer," and concludes that "[s]ince [Petitioner] did not cancel or inform us of the decision for travel before the travel date, the charge is valid as per the terms and conditions." The email cites a provision of the Contract addressing no-shows and, despite the absence of any mention of RTDC's cancellation of the trip due to the pandemic, adds a seemingly obscure reference to another provision of the Contract addressing acts of God, medical epidemics, quarantines, or other causes beyond Respondent's control for the cancellation of a trip. Notably, the email omits mention of the provisions of the Contract, described below, clearly calling for a refund. On balance, it is impossible to credit the testimony of Respondent's principal that, in telephone calls, Petitioner cancelled the trip before RTDC cancelled the trip or, more generally, that Petitioner could not settle on an acceptable remedy, and his indecisiveness prevented Respondent's principal from negotiating a settlement with RTDC--an assertion that, even if proved, would be irrelevant. Notwithstanding resolute attempts by Respondent's principal to misdirect attention from these unavoidable facts, Petitioner has paid for a train tour that never took place, RTDC cancelled the tour, and Petitioner never cancelled his tickets. The question is therefore whether, in its Contract, Respondent successfully transferred the risk of loss to Petitioner for a trip cancelled by the tour sponsor due to the pandemic. Analysis of this issue necessitates consideration of several provisions of the Contract that, despite its prolixity, is initially remarkable for two omissions: Respondent's Seller of Travel registration number3 and the name of RTDC as the sponsor of the POWAWIWT. Respondent claims that Petitioner caused his injury by declining to purchase travel insurance. The cover page of the Contract contains a section 3 Section 559.928(5) requires a seller of travel to include in each consumer contract the following: "[Name of seller of travel] is registered with the State of Florida as a Seller of Travel. Registration No. [X]." Even absent any mention of a statute, this disclosure provides a consumer with some means to learn of the somewhat obscure Act, the seller's statutory responsibilities, and the relief that may be available to a consumer for a seller's failure to discharge these responsibilities. Petitioner testified only that he somehow learned of the Act, but never said how. The record does not permit a finding that the omission of the statutory disclosure was purposeful, so as to conceal from the consumer the existence of the Act, or was a product of guileless ineptitude. called "Travel Insurance." This section provides an opportunity to purchase travel insurance from an entity "recommended by [Respondent]." The options are to check a box to purchase from Respondent's recommended entity or to check a box that states the traveler undertakes to obtain travel insurance independently, but this provision adds that, if travel insurance is not obtained, the consumer "absolve[s Respondent, t]he tour operator and the travel agent of all possible liabilities which may arise due to my failure to obtain adequate insurance coverage." Respondent offered no proof that its recommended travel insurance or other available travel insurance would pay for the cancellation of the April 1 POWAWIWT due to the pandemic, so Petitioner's choice not to purchase travel insurance is irrelevant. Additionally, the clear provisions of the Contract, discussed below, requiring a refund for a trip cancelled by the sponsor rebut Respondent's labored effort to apply the travel insurance provision to shift to the customer the risk of loss posed by a cancellation of the trip by the sponsor--a risk that might be better addressed by Respondent's purchase of commercial business interruption insurance. Respondent claims that the trip was cancelled by RTDC too close to the departure date to entitle Petitioner to any refund. The Contract contains a section called "Cancellation Fees." This section provides for increasing cancellation fees based on the proximity of the cancellation to the trip departure date. The Contract provides a 10% cancellation fee "if cancelled" more than 90 days prior to departure, 20% cancellation fee "if cancelled" between 89 and 35 days prior to departure, and 100% cancellation fee "if cancelled" within 34 days prior to departure. The Contract fails to specify if this provision applies to cancellations at the instance of the consumer or the trip sponsor, but the graduated fee reflects the greater value of a trip cancelled well in advance of the trip departure date, so that the trip can be resold. Obviously, a trip cancelled by a sponsor cannot be resold, so the cancellation fee provision applies only to a cancellation by a customer and does not shield Respondent from liability in this case. Lastly, Respondent relies on a section of the Contract called "Responsibility--Limitation of Liability." Provisions in this section warn that Respondent acts as an agent for a trip sponsor, such as the railroad, from which Respondent purchases the travel services. Although Respondent makes every effort to select the best providers of travel services, Respondent does not control their operations and thus CANNOT BE HELD LIABLE FOR ANY PERSONAL INJURY, PROPERTY DAMAGE OR OTHER CLAIM which may occur as a result of any and/or all of the following: the wrongful, negligent or arbitrary acts or omissions on the part of the independent supplier, agent, its employees or others who are not under the direct control or supervision of [Respondent]; [or] * * * (3) loss, injury or damage to person, property or otherwise, resulting directly or indirectly from any Acts of God, dangers incident to … medical epidemics, quarantines, … delays or cancellations or alterations in itinerary due to schedule changes, or from any causes beyond [Respondent's] control. … In case of overbooking, [Respondent] will only be liable for refund [sic] the charged amount to the guest. [Respondent] shall in no event be responsible or liable for any direct, indirect, consequential, incidental, special or punitive damages arising from your interaction with any retailer/vendor, and [Respondent] expressly disclaims any responsibility or liability for any resulting loss or damage. The "Responsibility--Limitation of Liability" provisions are general disclaimers of liability for various forms of damages arising out of the acts and omissions of third parties or forces outside the control of Respondent, such as the pandemic. These provisions represent a prudent attempt to avoid liability for damages, such as the lost opportunity to visit a gravely ill relative who has since died, that may amount to many multiples of the price paid for a trip. Complementing these general provisions limiting Respondent's liability, other provisions limit Respondent's liability to the payment of a refund of the purchase price of a trip cancelled by the sponsor. The section immediately following the "Responsibility--Limitation of Liability" section is the "Reservation of Rights" section, which provides: "The company [i.e., Respondent] reserves the right to cancel any tour without notice before the tour and refund the money in full and is not responsible for any direct or indirect damages to the guest due to such action." As noted above, the Contract omits any mention of Respondent's principal, so as to Respondent in the place of its undisclosed principal; thus, a provision referring to a cancellation of the tour by Respondent includes a cancellation of the tour by Respondent's principal. As cited by Petitioner in the Prehearing Statement, the other relevant provision is in the "Prices, Rates & Fares" section and states that, if a customer cancels, any refund to which the customer is entitled, under the above-cited cancellation fee provisions, will be dependent on then-current exchange rates, but "[i]n the event that a tour is canceled through no action of the Client, the Client will receive a full refund of US$."4 This provision entitles a consumer to: 1) a refund and 2) a refund in U.S. dollars, presumably unadjusted for currency fluctuations since the payment. At the hearing, Respondent's principal tried to construe the "US$" provision as a reference to the currency to which a consumer is entitled to be paid when a consumer cancels a trip under conditions in which the customer is entitled to a refund, but this construction ignores that the cited clause applies to 4 An identical "US$" provision is found at the end of the section called "A Note About Cancellation for All Tours/Reservations." cancellations occurring through no action of the consumer and imposes on Respondent the obligation to make a "full refund" in such cases.
Recommendation It is RECOMMENDED that the Department enter a final order directing Respondent to pay Petitioner the sum of $6689.20 within 30 days of the date of the order and, absent timely payment, directing the Surety to pay Petitioner the sum of $6689.20 from the Bond. 7 Perhaps the recommended and final orders in this case will persuade the credit card issuer to issue the credit for the $1911.20 to Petitioner, who is entitled to this disputed sum. But, if Respondent regains possession of this disputed sum and refuses to refund it to Petitioner, the Department may wish to consider suspending or revoking Respondent's certificate or referring the matter to the Miami-Dade County State Attorney's Office. See the preceding footnote. DONE AND ENTERED this 9th day of November, 2020, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 9th day of November, 2020. COPIES FURNISHED: Gil Gonzalez 8444 Mono Lake Drive San Diego, California 92119 (eServed) Benjamin C. Patton, Esquire McRae & Metcalf, P.A. 2612 Centennial Place Tallahassee, Florida 32308 (eServed) H. Richard Bisbee, Esquire H. Richard Bisbee, P.A. 1882 Capital Circle Northeast, Suite 206 Tallahassee, Florida 32308 (eServed) W. Alan Parkinson, Bureau Chief Department of Agriculture and Consumer Services Rhodes Building, R-3 2005 Apalachee Parkway Tallahassee, Florida 32399-6500 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
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, Cassandra Cook, has filed a claim against the bond for $349.50 alleging that Passport failed to perform on certain contracted services. On April 20, 1989, petitioner received a solicitation telephone call from Global Travel inviting her to purchase a travel certificate entitling her and a companion to a five-day, four-night cruise to the Bahamas. Global Travel was a Tennessee telemarketeer selling travel certificates on behalf of Passport. Petitioner agreed to purchase the certificate and authorized a $349.50 charge on her credit card payable to Global Travel. Thereafter, petitioner received her travel certificate, brochure and video, all carrying the name, address and logo of Passport. In order to use the travel certificate, it was necessary for petitioner to fill out the reservation form with requested dates and return the form, certificate, and a deposit to Passport. Before doing so, petitioner repeatedly attempted to telephone Passport's offices in Daytona Beach to obtain additional information and to inquire about the availability of certain travel dates but was never able to speak to anyone because of busy lines. She then requested a refund of her money and simultaneously filed a complaint with the Department in January 1990. In responding to the complaint in February 1990, Passport denied liability on the ground petitioner was obligated to "deal directly with the company that has charged her credit card as that is who has her money." By then, however, Global Travel was out of business. To date, petitioner 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, and she be paid $349.50 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: Cassandra Cook 3818 Firdrona Drive, N. W. Gig Harbor, Washington 98332 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
