Findings Of Fact The Joanne Gamache is a white, American female, and she owns 51 percent of the stock of Sun World Travel, Inc., (hereafter Sun). She submitted an application for MBE Certification in behalf of Sun to the Department of Management Services, (hereafter DMS). (R.E. 1, p. 24-31) Gillies Gamache, Joanne's husband, owns 49 percent of Sun World Travel. (Tr. 19-20) The major business purpose of this business is the sale of travel. (Tr. 35) Sun is a corporation domiciled in Florida with less than 25 employees, and a net worth of less than $1 million dollars. DMS, through its Certification Officer Morris, reviewed the file, completed an on site visit to Petitioner's business, and Sun's application for MBE Certification was tentatively denied. (Tr. 97-100) Sun was duly notified of DMS's decision, and filed a timely request for formal hearing on the intended agency action. In 1978, Gilles Gamache bought a travel agency in Broward County called Transit Travel using the joint savings of Gilles and Joanne Gamache. (Tr. 11- 12) All of the stock of this travel agency was issued to Gilles Gamache. (Tr. 19) He was both travel agent and the manager of Transit Travel. (Tr. 11) Joanne Gamache also worked in the agency making resevations, delivering tickets and doing the bookkeeping. (Tr. 15-16) Both Gamaches were also employed full time as teachers in the Broward County school system. (Tr. 12-13, 15-16) In 1981, the Gamaches moved to Tallahassee selling both their home and the business in South Florida. (Tr.14) Gilles Gamache opened another travel agency in Tallahassee called Sun World Travel using the proceeds of the sale of Transit Travel and other jointly held property. (Tr. 14 and 31) He was initially the 100 percent owner of the agency. (Tr. 19) Gilles Gamache initially worked in the travel agency full time and Joanne Gamache continued to teach school full time, and deliver tickets and work on business' books. (Tr. 16-19) She occasionally made some reservations. (Tr. 16-19) In 1989, Gilles Gamache transferred 51 percent ownership of Sun to Joanne Gamache. (Tr. 19-20) This shift resulted when Gilles Gamache became involved in additional business ventures, Joanne Gamache had more time to devote to the business because their daughter had entered school, and the transfer reflected the ownership interest which Joanne Gamache had possessed in Sun and its predeccessor, Transit Travel. It is incorrect to state that Joanne Gamache did not pay anything for her share of the business because she would have been entitled to a share of the business equal to her contribution to the joint funds used to purchase Transit Travel and jointly held property from which the money came to start Sun. (Tr. 31) The uncontroverted evidence is that Joanne's contributions to those savings was greater than Gilles' because she had always maintained her full time employment as a teacher. (Tr. 43 and HO's notes p. 6, 14, 27) The bylaws of the corporation provide that no transfer of stock which would dilute the 51 percent ownership of this corporation by minorites shall be permitted. (Tr. 21, Pet. Exh. 2, Article IV, Section 5) Concurrent with the shift in ownership and responsibilities, Sun hired an office manager because of a technical requirement that the manager of such an agency must be a certified reservationist, and Joanne Gamache is not certified. Initially, one of the existing employees, who was certified, was employed as the manager. Thereafter, Cindy Cimbora was hired as the manager; however, she is under the direction and control of Joanne Gamache. Gilles Gamache continues to be employed as a reservationist with Sun, as well has being the sole employee of two other companies which he owns. One of these companies is an importing company and the other involves text books. Gilles Gamache works 20 to 30 hours per week for Sun World Travel and 16 hours in his other businesses. (Tr. 80, 29-30) One of the major purchasing decisions made by Sun in the last five years was the purchase of the current business site. Joanne Gamache suggested the purchase of the building as a business location for Sun, and was the prime mover in its purchase, although both Gamaches participated in the negotiations for the purchase. The Gamaches own the building personally and rent the building to their businesses. The office of Gilles Gamache's companies are also in this building, but separate from those of Sun. None of the travel agency's business is transacted in the area used by his other businesses, and visa versa. (Tr. 76) Joanne Gamahe designed, selected and purchased the business' sign, entrance, and doors. She contracted for the security system for Sun. Rent paid by Sun on the building is less than $20,000 a year. Joanne Gamache earns $32,000 a year as a teacher and $7,000 a year from Sun World Travel. (Tr.46-47) Joanne Gamache goes to the business before and after school to deal with day to day business decisions providing direction to Cimbora in writing, directly, and by telepone. Joanne Gamache does a portion of her bookkeeping work at home at night and on the weekends. (Tr. 49) She estimates that she works 15-20 hours per week for Sun World Travel during the school year. Currently, Cindy Cimbora directs the other agents during business hours from 8:00 a.m. to 6:00 p.m. (Tr. 76-94) The Gamaches, as teachers, originally decided to engage in the travel business because its peak busy periods coincide with traditional school breaks. Sun employs Joanne Gamache, Gilles Gamache, Cindy Cimbora, Mary Waltman and John Moseley. Joanne Gamache makes personnel decisions, although most of the current employees were employed prior to the transfer of business ownership, and prepares and signs all payroll checks. She did interview and hire Cindy Cimbora, a white, American female in January 1992, on an employment contract which provides that Cimbora has first right of refusal if the agency is put up for sale. Cindy Cimbora is an experienced travel agent, and certified reservationist. (Tr. 50-51) Gilles Gamache signed the latest contract for the business' reservation computer system; however, Joanne Gamach negotiated the contract, and did not sign in behalf of the business because she was out of town because of an illness in her family. (Tr. 36) Joanne Gamache negotiated and signed the previous contract for reservation computer services. (Pet. Exh. 4 & 5, and Tr. 37) Joanne Gamache currently pays payroll, purchases supplies, handles accounts receivable, deals with the accountant about taxes, and gives direction to Cindy Cimbora on business to pursue. Joanne Gamache controls the finances of the business. Sun has a line of credit with First Florida Bank for which both Gamaches are jointly and severally liable. The business regularly uses credit card accounts for which both Gamaches are jointly and severally liable. Sun is unable to procure credit without the personal guarantee of both Gamaches. Cimbora and Gilles are additional authorized signatories on the business' checking account to facilitate transactions, such as making refunds to customers. Joanne Gamache writes the majority of the checks to suppliers and service providers. The company supplied a list of daily business activities for each owner at the request of the Certification Officer. (R.E. 1, p. 33-36) Gilles Gamache listed the following duties: disseminate information on new travel deals, coordinate ticket deliveries, organize travel literature files, look out for the best insurance values, monitor sales, solicit new business and make travel arrangements for clients. (R.E. 1 p. 34) Joanne Gamache listed her activities as the following: purchase goods and services, sign checks, do payroll, monitor profitability, monitor overhead costs, monitor collection of commissions, monitor stock of documents, issue refunds and process weekly airline report. (R.E. 1 p. 35) All of Joanne Gamache's functions related to management and the setting of policy, not day to day arrangements for travel; however, her duties are essential to the success of the business. In order to establish and maintain a travel agency the Airline Reporting Corporation requires that a travel agent with two years experience must run the business. (Tr. 123) To become a travel agent, a person must take a four hundred hour course covering topics including the opening and closing of a sale, learning airports, the destination of airlines and scheduling. (Tr. 88) There is a separate course requirement for the COVIA reservation system. (Tr. 88) COVIA is a system for making computerized airline reservations. Joanne Gamache has not attended these courses and is not a certified travel agent. (Tr. 75) This is the reason Sun employs Cindy Cimbora. The department's determination was based upon its conclusions regarding control of the business. To determine who has control of a family- owned business the agency looks at the contributions of each family member, the history of involvement with the business of each spouse, who sets policy, the resumes of the owners, the relative involvement of each owner in the business, and the length of time each had been active in the travel business. The agency initially concluded that Gilles Gamache's experience in the business was more extensive than his wife's, and that Joanne Gamache does not control Sun World Travel. (Tr 123-125)
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered granting the Petitioner's request for certification of the minority business enterprise. RECOMMENDED this 12th day of October, 1993, at Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The De Soto 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 October, 1993.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Robert F. Boles, has filed a claim against the bond for more than $1,000.00 alleging that Passport failed to perform on certain contracted services. On an undisclosed date in 1990, petitioner purchased a travel certificate from Passport entitling the holder to four nights lodging at the Lucayan Beach Resort and Casino in Freeport, Bahamas, which Passport described as "the nicest property on the beach." Petitioner used his certificate to travel with his wife and two children to Freeport on April 1, 1991. The room to which petitioner was assigned did not have hot water. Petitioner was offered a different room with a less desirable view, but the hot water was not working in that room, and the room had not been cleaned since the prior guest had departed. Since the hotel was otherwise fully booked, petitioner decided to keep his original room, but says he had no hot water during his entire four-night stay. Besides a lack of hot water, the cable television connector was not repaired until the second day, the room air- conditioner was "noisy," and the bed sheets were not changed during the entire stay. As to the latter deficiency, petitioner says this was particularly galling since one of his children had chicken pox while on the trip. He acknowledged that he never requested the house cleaning department to change the sheets but says he had no responsibility to do so. Finally, the burned-out light bulb in the room lamp was never replaced. Whether petitioner asked that it be changed is not of record. When he checked out of the hotel, petitioner expected an adjustment on his bill but received none. Because of the foregoing problems, petitioner asks that he be refunded in excess of $1,000.00, which he says represents his costs incurred on the trip. According to the evidence, petitioner paid a $90.00 deposit to Passport in October 1990, plus $692.90 for upgrades to better accommodations, additional services and taxes in February 1991. The record does not show what portion of the $692.90 pertains to the upgraded accommodations. The derivation of the remaining part of petitioner's claim is unknown. The hotel's version of what occurred is found in a letter dated July 5, 1991, but it is hearsay in nature. It does corroborate other evidence that the hotel offered petitioner an apology, gave his family a free meal one evening, and attempted (albeit unsuccessfully) to resolve the problems.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be approved, and he be repaid $346.45 from the bond. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1994. COPIES FURNISHED: Robert F. Boles 1522 Ohio Avenue Palm Harbor, FL 34683 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, FL 32399-0810
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 At all times material to these proceedings, Respondent was a licensed real estate salesman licensed by the Division of Real Estate. On November 1, 1983, J.B. and N., Inc., a Florida Corporation, purchased a parcel of real estate located in Santa Rosa County, Florida, for the purpose of developing a residential subdivision. Robert J. Furse (Furse) and Respondent were officers, director, and owners of J.B. and N., Inc. At the time of the acquisition of the parcel of real property referenced above, Furse and the Respondent each owned 50 per cent of J.B. and N., Inc. The parcel of property purchased by J.B. and N., Inc., was roughly rectangular running north to south between US Highway 98 and the Gulf of Mexico/Santa Rosa Sound. Mr. Lewis Johnston, registered surveyor, was retained by J.B. and N., Inc., to survey the property and prepare a preliminary plat for subdividing the parcel. A drawing of this plat is attached to Petitioner's Exhibit 5. The parcel was divided east and west by a north-south road from U.S. 98 which stops short of the sound. Ten lots of equal size border the east and west boundaries of the road and three waterfront lots front on Santa Rosa Sound. The Respondent and Furse intended and attempted to provide the inland lot owners in the subdivision with a pedestrian access to the waterfront. This access can be seen along the western boundary of Lot 13 as depicted in the plat attached to Petitioner's Exhibit 5. The plat prepared by Johnston was never recorded in the official records of Santa Rosa County. The regulations for establishing a subdivision in Santa Rosa County did not require filing of a plat plan when this subdivision was developed. On November 2, 1983, Furse purchased Lot 13 which was adjacent to the access easement as surveyed and drawn but not recorded. At the time of the purchase, Furse received a survey indicating the location of the access way. Furse had a privacy fence constructed between the access way and his property as depicted on the attachment to Petitioner's Exhibit 5. Furse and the Respondent intended to create an easement for access to the water across the lot Furse purchased from J.B. and N., Inc. Closing on the sale from J.B. and N., Inc., to Furse was handled by Furse's attorney. The Respondent understood that the attorney was supposed to create the easement in the deed to Furse. Furse instructed his attorney to prepare a deed transferring the property to him to which he was to take title. Furse did not think that this included the access way. Subsequently, J.B. and N., Inc., listed for sale the other lots in the subdivision with Shore to Shore Realty, Inc. The listing agents were Brice and Hanks. To induce purchasers to purchase the lots, the lots were advertised as having water access as indicated by the MLS listing, the plat, and advertising signs. In October, 1984, Lot No. 6 was purchased by Lowell Ray. In November of 1984, Lot No. 3 was purchased by John Alvarez. In the summer of 1985, Lot No. 4 was purchased by Balfour and Linda Clark. All of these purchasers were told that they had access to the water. Access to the water was a major consideration in their decision to purchase. Furse had a house built, centered on the lot, allowing for the access way mentioned above. During the summer of 1984, Furse divorced his wife; and thereafter, they defaulted on payments on the mortgage on the property in question. The mortgagee foreclosed on the property in 1985 and thereafter sold it to Mr. Thomas Ferguson in August of 1987. During a title search, Mr. Ferguson's attorney found that the access way had been conveyed to Furse. After purchasing the property, Mr. Ferguson removed the privacy fence separating the access way from the remainder of the property and fenced off the access way to prevent further access across his property. The access way had never been deeded in the form of an easement. All of the property had been conveyed initially to Furse and thereafter to Ferguson. The Respondent did not know that the easement had not been created until after Ferguson took possession of the property and restricted access. Prior to that, the Respondent thought that the easement had been created at the time of Furse's acquisition of the lot. Prior to Ferguson's restriction of the access, Ray, Alvarez, and Balfour did have access to the water over the access way as prepared by Furse. Upon being notified that the access had been restricted by Ferguson, the Respondent attempted through negotiation to acquire an easement from Ferguson for the benefit of the property owners. However, Ferguson ultimately decided that he did not desire to grant such access except as a license to those property owners who had purchased the property prior to his purchase of the property.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the charges against the Respondent be dismissed. DONE and ENTERED this 3 day of March, 1990, in Tallahassee, Florida. STEPHEN F. DEAN, 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 23rd day of March, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5021 The parties submitted proposed findings of fact and conclusions of law which were read and considered. The following is a listing of the findings which were adopted and those which were rejected and why. Respondent's Proposed Findings of Fact 1-9. Adopted. Adopted, but rewritten. Adopted. Adopted, but rewritten. 13-19. Adopted. Rejected, as irrelevant. Adopted, but rewritten. Petitioner's Proposed Findings of Fact 1-2. Adopted. Rejected; corporation bought the land. Adopted. 5-6. Rejected, contrary to the evidence. Adopted, but rewritten. Rejected, contrary to the evidence. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Stephen R. Moorhead, Esquire McDonald, Fleming, & Moorhead 700 South Palafox Street Pensacola, FL 32501 Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
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 Petitioner, Flamingo Lake RV Resort, Inc., operates a camping facility located in Duval County, Florida, located at the interchange of 1-295 and SR 115 or Lem Turner Road. The Petitioner applied to the Department pursuant to Section 479.26, Florida Statutes, and Chapter 14-85, Florida Administrative Code, to participate in the logo program at the interchange. The logo program is the means by which businesses, located within a specified distance from an interstate highway exit, are permitted to display their logo sign on information panels placed on the interstate highway near the applicable exit. Such panels identify motorist services available at the exit categorized by "Food," "Gas," "Lodging" or "Camping." The Petitioner applied to place the logo of Flamingo Lake RV Resort on a "Camping" information panel. There are no logo panels currently at the interchange of 1-295 and SR 115. The only signage at that interchange located on the interstate right-of- way consists of a small generic sign displaying a picture of a camper underneath the exit ramp sign. The small generic camper sign is not readily noticeable. The generic sign neither identifies the particular campground which it references, nor supplies directions to the campground. Signage on a logo panel is important because it assists a traveler in finding a particular campground and provides directions to the campground. By letter dated October 17, 1990, the Department notified Petitioner that its application was denied, because: The interchange on 1-295 is "excluded from the program." The interchange does not fit the definition of "rural interchange" in that it is located in an urban area or is bordering the urbanized area of Jacksonville, and the number of eligible businesses at the interchange exceeds the logo sign's panel capacity. Pursuant to unpublished policy, the Department has excluded all of 1- 295, the interstate beltway around Jacksonville, Florida, from participating in the logo program. The policy was adopted at some point in time in 1987, by the Department's District Secretary. The policy was established because 1-295 is in close proximity to the core city and anticipated that development would move in that direction. 1-295 is a circumferential route with crossroads that radiate into and out of the City of Jacksonville. Exiting 1-295, you can head toward Jacksonville and encounter an increasing number of services. There has been no logo signing on 1-295 in Duval County, and other areas excluded from the logo program in the District are U.S. 441 in Alachua County and 1-75, 39th Avenue and 1-75 in Alachua County, State Road 26, 24, and 121 (at 1-75). Areas surrounding the interchange, including Petitioner's property, are classified as "rural areas" by the Census Bureau. The characteristics of the interchange are marked by farming, pine forests containing abundant wild life, and a large lake located on Petitioner's campground. Other than Petitioner's campground facility, there is no commercial or significant residential development located at or near the interchange, and the area is designated open-rural for zoning purposes. Petitioner's property is not serviced by city water or sewer lines. The interstate speed limit at the interchange is 65 mph, and the speed limit along Lem Turner Road at the interchange is 55 mph. Such speed limits are characteristic of a rural, rather than an urban location. The interchange of 1-295 and SR 115 is located in a rural setting. Traveling in a northerly direction along the Lem Turner (SR 115) crossroad from the interchange, no commercial or residential development is encountered until the traveler reaches Callahan, Florida, a distance in excess of ten miles from the interchange. Traveling in a southerly direction along the Lem Turner (SR 115) crossroad from the interchange, no commercial or significant residential development is encountered until reaching the Lem Turner Road/Dunn Avenue intersection, a distance of approximately one mile from the interchange. Within 1.5 miles of the interchange, there are only two gas station businesses potentially eligible to participate in the logo program. Both gas stations are located at the Dunn Avenue/Lem Turner Road intersection, at a distance of 1.2 miles from the interchange. Within three miles of the interchange, the only business eligible for the restaurant logo program is a McDonald's restaurant located on Lem Turner Road just south of its intersection with Dunn Avenue. None of the other restaurants located within a three mile distance of the interchange meet the restaurant eligibility requirements due to limited seating capacity or the limited hours of business. McDonald's desires to participate in the logo program at the interchange. Other than Petitioner's campground, there are no other campgrounds located within three miles in either discretion along the Lem Turner crossroad from the interchange. There are no lodging facilities located within three miles of the interchange. Lodging facilities are located at the Dunn Avenue/I-95 intersection, a distance over three miles but less than six miles of the 1-295 and SR 155 interchange. To reach these facilities, however, the northbound traveler must drive south on Lem Turner Road for approximately 1 mile, then turn east on Dunn Avenue and travel approximately three miles to reach the interchange of 1-95 and Dunn Avenue. For persons traveling south, the more direct route to the I- 95/Dunn Avenue interchange is to continue south on 1-95 approximately one mile rather than to turn onto 1-295. The District Logo Coordinator did a survey of the volume of business in each category and determined that the panel capacity for two of the types of mother board would be exceeded within the six-mile distance. In reaching this conclusion, the Department considered businesses within six miles because the Department did not feel that there were enough qualifying businesses within three miles. However, within six miles, the Department determined there would be so many qualifying businesses that the logo mother board would be exceeded and when the logo mother board capacity is exceeded, all logo panels must come down. Therefore, the Department denied all logo panels. There were qualifying or qualifiable gas station(s), restaurant(s), and campground(s) accessible from the intersection. Of the three logo categories, only lodging lacked a qualifier within three miles. Only when the radius of inquiry extended to six miles and left Lem Turner Road to go to the Dunn Avenue/I-95 interchange was a lodging qualifier found. At this point, the Department determined that there were too many lodgings and precluded all logo signs in all categories. Respondent's Exhibit 1 is a map of the urbanized area in the vicinity of Jacksonville, Florida. This designation of urbanized area by the Department was approved by the Federal Highway Administration. This exhibit reveals that the 1-295/SR 115 interchange is located in the urbanized area. On November 30, 1990, the Department published notice in the Florida Administrative Weekly announcing a proposed change to Chapter 14-85 of the Florida Administrative Code. Notice of the proposed rule change was not given to Petitioner individually; however, individual notice was not required. The amendments to Chapter 14-85 became effective March 20, 1990. This administrative hearing was held on March 19, 1991. The effect of the amendments to the rules under Chapter 14-85 removes the exception to the "Rural Interchange" definition found in Rule 14- 85.003(10)(b), and would deny Petitioner the right to erect a logo sign at the interchange if the interchange is found to be located within an urban or urbanized area. The amendment would make any interchange located within an urban or urbanized area ineligible to participate in the logo program, regardless of whether the number of eligible businesses at the interchange exceed the logo sign's capacity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner's application for eligibility in the logo program for a location at Exit 13 on Interstate 295 be denied because said location does not qualify as a rural interchange under the current rule DONE and ENTERED this 24th day of April, 1991, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 File with the Clerk of the Division of Administrative Hearings this 24th day of April, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-7304T Petitioner's Proposed Findings of Fact 1-4. Adopted. 5-6. Adopted in part and combined with paragraph 4. The part rejected was irrelevant. Adopted. Adopted and divided into paragraphs 7 and 8. 9-10. Adopted and restructured. 11-12. Adopted. 13-14. Conclusion of law. 15-21. Adopted. Respondent's Proposed Findings of Fact 1-3. Adopted. COPIES FURNISHED: John S. Ball, Esq. Michael W. Fisher, Esq. Fisher, Trousey, Leas & Ball 2600 Independent Square Jacksonville, FL 32202 Vernon L. Whittier, Jr., Esq. Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, Esq. General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that: Respondent Department of Transportation enter a final order denying the application of petitioner V. J. Allen, d/b/a The Seafood Shack, for a sign permit. RECOMMENDED this 25th day of January, 1985 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of January, 1985.
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
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
