The Issue The issue is whether, due to the nonresponsiveness or misscoring of Intervenor's proposal, Respondent's intent to award a contract to Intervenor based on its proposal submitted in response to a request for proposals known as Florida Travel Demand Modeling Software and License (RFP) is contrary to the governing statutes, rules or policies, or the RFP specifications, as provided by section 120.57(3)(f), Florida Statutes.
Findings Of Fact RFP and Proposals In November 2017, Respondent published the RFP. The RFP is divided into parts, including Special Conditions, Scope of Services, Price Proposal Form, and Introduction, which, according to Special Condition 36, are to be interpreted in this order in the event of conflicting provisions. The purpose of the RFP is to procure travel demand modeling software, which projects future service demands on a transportation system, so that transportation planners, engineers, and policymakers can design, schedule, prioritize, and budget transportation projects and expenditures. The Price Proposal Form is the first page of the RFP. It contains four columns to be completed by the proposer with dollar figures for year 1, year 2, year 3, and 3-year total. The Price Proposal Form contains five rows for the following prices: "Model Conversions," "Training," "Annual License Renewal," "Base Software Cost," and "OVERALL PRICE." The next part of the RFP is the Introduction. Introduction 1 invites interested persons to submit proposals "to provide travel demand modeling software and licensing in Florida for [Respondent], MPOs [Metropolitan Planning Organizations], local agencies and universities (teaching only)." The boldface language alerts prospective proposers that, although Respondent is conducting the procurement, the MPOs, local agencies, and universities in their academic capacity will be co-licensees with Respondent. Introduction 1 states that Respondent "intends to award this contract to the responsive and responsible Proposer whose proposal is determined to be most advantageous" to Respondent. Introduction 1 states that the estimated term of the contract is three years. Special Condition 1 warns that a proposer will be considered nonresponsive unless it is registered with the myfloridamarketplace system by the scheduled date for the opening of technical proposals. Special Condition 6 incorporates the Scope of Services. Special Condition 7 states that Respondent intends to award the contract to the "responsive and responsible vendor with the highest cumulative total points for the evaluation criteria." Special Condition 20 warns that a proposer may not apply "conditions . . . to any aspect of the RFP," and the placement of such conditions "may result in the proposal being rejected as a conditional proposal (see "RESPONSIVENESS OF PROPOSALS")." Special Condition 21 is "Responsiveness of Proposals." Special Condition 21.1 states that a: responsive proposal is an offer to perform the scope of services called for in this [RFP] in accordance with all requirements of this [RFP] and receiving [70] points or more on the Technical Proposal. Proposals found to be non-responsive shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A proposal may be found to be irregular or non-responsive by reasons that include . . . failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, and improper and/or undated signatures. Special Condition 22.1 calls for each proposer to submit, each in its own sealed package, a Technical Proposal and a Price Proposal. Special Condition 22.2 requires that the Technical Proposal be divided into six scored sections and 30 unscored subsections; the six scored sections comprising five technical sections and one price section. The six scored sections are the six main sections of the Scope of Services, which is discussed below. Special Condition 22.4 states that "Technical Proposals should not exceed 30 pages in total." Special Condition 30 requires at least three evaluators with suitable experience and knowledge. Each evaluator will independently score each proposal, and the Procurement Officer will average the scores for each Proposer. During the evaluation process, the Procurement Officer is to examine the proposals for responsiveness and "automatically reject . . ." those that the officer finds are nonresponsive. Special Condition 30.2 explains that the technical evaluation "is the process of reviewing the Proposer's response to evaluate the experience, qualifications, and capabilities of the proposers to provide the desired services and assure a quality product." For the five technical sections making up the Technical Proposal, Special Condition 30.2.a assigns a maximum of 90 points, as follows: General Platform Capabilities 25 points Network 20 points Hardware Requirements and Options 10 points Development and Advanced Options 10 points Other Considerations 25 points These five sections are, respectively, Scope of Services 2, 3, 4, 5, and 7. Special Condition 30.2 states that, in evaluating the Technical Proposals, each evaluator is to use the following scale in assigning a single score for each section: Exceeds Reply fully meets all 4 Expectations specifications and offers innovative solutions to meet specifications. Reply exceeds minimum specifica- tions and provisions in most aspects for the specific items. Meets Reply adequately meets the 3 Expectations minimum described need, or provisions of the specific needs and is generally capable of meeting [Respondent's] needs for specific items. Partially Reply does not fully 2 Meets address the need, one or Expectations more major considerations are not addressed, or is so limited that it results in a low degree of confidence in the [proposal]. Reply is lacking in some essential aspects for the specific items. Does Not Meet Reply fails to address the 1 Expectations need, or it does not describe any experience related to the component. Reply is inadequate in most basic specifications or provisions for the specific items. Insufficient information provided to be evaluated. For the Price Structure, Special Condition 30.2.b states that the lowest Price Proposal earns 10 points and the other Price Proposals receive points based on a formula in which 10 is multiplied by a fraction whose numerator is the lowest Price Proposal and whose denominator is the price of the subject Price Proposal. Thus, a Price Proposal with the lowest price $100,000 would earn 10 points, and a proposal with a price of $120,000 would earn 8.33 points ($100,000/$120,000 x 10). Scope of Services 1 notes that the Scope of Services is the product of input from the Florida Model Task Force (FMTF), which comprises members of the Florida modeling community. Scope of Services 1 describes the objective of the procurement: [Respondent] has for more than three decades promoted a unified statewide modeling approach for consistency to the application of engineering and planning travel demand modeling activities. As part of this effort [Respondent] makes available a common modeling software platform for use by all public agencies in Florida which includes [Respondent], . . . MPOs, County and City Governments and Regional Planning Councils. Additionally, Florida universities are provided a limited teaching license for teaching and research purposes. [Respondent] seeks to . . . select a travel demand software package and license for the purpose of meeting the stated objective of providing a common modeling platform. This platform is intended to support modeling activities in the state and represent the Florida-specific standardized modeling procedures outlined in the Florida Standard Urban Transportation Model Structure (FSUTMS). * * * This scope of services represents input from the Florida Model Task Force (MTF)[,] . . . whose mission is to advance model development and applications to serve the transportation planning needs of [Respondent], MPOs and local governments. The input from the Florida MTF serves as a guide for developing the model platform scope. No one challenged the specifications of the RFP. Proposals were submitted timely by Intervenor, Petitioner, and Citilabs, Inc., which is the present vendor of Respondent's travel demand modeling software. The Procurement Officer examined each proposal to ensure that it contained a Technical Proposal and a Price Proposal and determined that each Proposer was properly registered to do business in Florida. Without undertaking further analysis of responsiveness, the Procurement Officer distributed the proposals to the evaluators for scoring, assuming that any failure to meet RFP mandatories would result in a lower score. For the Price Proposals, Citilabs submitted the lowest price, which was $96,000, so it received 10 points. Petitioner submitted a price of $180,000, so it received 5.33 points. Intervenor submitted a price of $260,000, so it received 3.69 points. These scores are not at issue. For the Technical Proposals, Intervenor received 83.33 points, Petitioner received 78.75 points, and Citilabs received 73.33 points. Thus, Intervenor received 87.03 points, Petitioner received 84.08 points, and Citilabs received 83.33 points. On December 20, 2017, Respondent published a notice of intent to award the contract to Intervenor. The intended award was protested by Petitioner, but not Citilabs. Responsiveness Introduction The Procurement Officer's responsiveness review never went beyond a determination that each proposer was registered to do business in Florida and each proposal contained a Technical Proposal and a Price Proposal. None of the evaluators conducted any examination of the proposals for responsiveness or reduced any score of Intervenor for the two instances of nonresponsiveness discussed in this section of the recommended order. In order to apply the deferential standards discussed in the Conclusions of Law, it is necessary to deem that Respondent determined that Intervenor's proposal is responsive on the two issues discussed immediately below. Although the RFP could have more clearly presented its mandatories by setting them out separately, its failure to do so is irrelevant. Dispersed through the RFP are numerous requirements imposed upon a proposal that, if ignored or violated, would render the proposal nonresponsive. The items discussed in this section of the recommended order are mandatories in the RFP. In its proposed recommended order, Petitioner claims that Intervenor's proposal is nonresponsive in model conversions and special access to the software. Conversions of ABMs and Timeframes for Conversions of All 13 Models Except for three provisions, the RFP could easily be misconstrued to call for the submittal of travel demand modeling software on a platform that might or might not accommodate the platforms, and thus the travel demand modeling software, presently used by Respondent, the MPOs, and local agencies. The first of these exceptions is in the Price Proposal Form. The first of only four price categories in the Price Proposal Form is "Model Conversions," a prominent two-word reference that stands without explanation or context, although the plural form alerts the proposer to the need to price more than one conversion. Nearly as laconic, Scope of Services 7.3.2 requires each proposer to "outline a plan for implementation of the software and/or software updates." An understandably puzzled proposer asked, "Is this about conversion plan for [Respondent] or general software update plan as a whole?" Failing to seize upon the opportunity to elaborate on conversion requirements, in Addendum No. 1, Respondent replied only, "The intent was to form a conversion plan." In Scope of Services 6, Respondent abandons its reticence and describes the conversion responsibilities in reasonable detail. As noted above, Scope of Services 6 is Price Structure, which describes each of the four price components included in the Price Proposal Form or Price Proposal. In its proposed recommended order, Respondent argued that responsiveness requirements for the Technical Proposal may not be culled from the portion of the RFP detailing the Price Proposal. Given the failure of the remainder of the RFP to detail conversion requirements, Respondent's argument is burdened by the fact that, if the argument were to prevail, Respondent would be deprived of the only provisions anywhere in the RFP to enforce important conversion responsibilities undertaken by the ultimate vendor. But Respondent's argument finds no support in the RFP itself. Scope of Services 6.1 addresses model conversions as follows: It is the mission of the [FMTF] that every travel forecasting model in Florida operates from the same software platform. These models are validated to standards established by the [FMTF]. The Vendor is expected to convert these models to the selected platform such that the converted models are provided as validated models. A timeframe and conversion methodology is required. While conversions are not expected to precisely meet the outputs of the original model, they are required to meet validation standards consistent with guidelines established through National Cooperative Highway Research Program (NCHRP) Report 716 and other resources identified on the FSUTMSOOnline.net modeling website. Specific requirements will also include recoding ancillary modeling scripts into the selected platform or to a more common, standardized programming language such as Python. Updates to socioeconomic data inputs, local travel demand variables and network coding are not required through this RFP. The vendor must provide a cost estimate for the conversion of seven (7) 4-step models (Florida Statewide Model, Florida Turnpike Model, Northwest, Capital Region, Gainesville, DS, and D1); four (4) ABM [activity-based models) models (Southeast, Tampa Bay, Northeast and Treasure Coast); and two (2) training models. Scope of Services 6.1 not only informs proposers what they need to include in their cost projections for Model Conversions, but, in so doing, also informs them of their obligation to convert Respondent's Citilabs model, ten local models, and two training models. Except for Scope of Services 6.1, the requirements of the RFP, as distinct from the mission statements contained in Scope of Services 1, might be misinterpreted as specifications for the procurement for Respondent of a travel demand modeling software on a platform whose compatibility with the platform presently used by Respondent and platforms presently used by the MPOs and local agencies is irrelevant. Most importantly, Respondent's argument ignores Special Condition 21.1, which identifies the entire RFP as a source of mandatories. Without regard to Special Condition 21.1, Special Condition 22.2 lists Scope of Services 6 within the Technical Proposal, which, Respondent would concede, is an obvious source of mandatories. Scope of Services 6 is merely the fifth of six sections to be scored by the evaluator. Respondent's argument to disregard Scope of Services 6 as a source of mandatories is a misreading of the RFP. Intervenor's proposal, which refers to its traffic demand modeling software as "Visum," responds to Scope of Services 7.3.2 by proposing to convert Respondent's present Citilabs model, but not all of the models currently used by the MPOs and local agencies: We understand that successful model conversion only can be achieved through a collaborative relationship in between [sic] [Respondent] (and affiliated agencies), local consultants, and the software provider. Therefore, we propose a process that all three parties can contribute to this process and ensure all local modeling and software expertise can be fully utilized for this process. The overall conversion process is divided into four tasks below: Kick-off meeting with [Respondent's] Central office: First, we will work with [Respondent's] Central office to come up with a set of basic templates which will be applicable to four-step models as well as ABM models. In this way, we can come up with set standard that can be applied to all models that need to be converted and/or new models that need to be developed in the future. Details on model conversion schedule and prioritization of each model will be discussed and decided based on required model update (for LRTP) schedule and similarities of models. Kick-off meeting with [Respondent's] District office(s): Based on priority list provided from previous step, we will set up individual kick-off meetings with each district. We expect to meet with local model coordinators as well as local consultants with local modeling knowledge (up to two consultants selected by [Respondent]) to learn about the model that needs to be converted. This will give us a background on special features of the existing models, expected run-time, memory requirements and current shortcomings. All data and documentation necessary for model conversion should be provided at the meeting so that it can be reviewed by conversion team. At the end of the meeting, conversion team will come up with initial model conversion plan and shared [sic] with model coordinator and invited consultants. Basic Model Conversion: Basic components in the existing model will be converted to Visum by [Intervenor] at no additional cost. This conversion includes network (traffic and transit) conversion for the base year model, 4-step procedures, trip tables, and any special scripts used in the current model (to model trip adjustments, special assignments, skim averaging, etc.). In case of models integrated with third- party ABM, we will provide network (traffic and transit) conversion for the base year model, assignment and skimming procedures, and scripts necessary for the ABM interface on the Visum side (any modifications required for the ABM side, i.e., code within the ABM is beyond the scope of the basic conversion process). Once the basic model conversion is completed, we will host a hand-over meeting to the model coordinator and selected local consultant (e.g. on-call consultant). At the meeting, we will present the process that was undertaken and detailed information on new attributes, calculations and overall model operation. We will also provide model conversion report so that [Respondent] and consultants can use it to understand converted model. Model fine-tuning and final delivery: [Intervenor] will take the lead along with [Respondent] model coordinator (or selected consultant with local knowledge) on this final model fine-tuning process that includes calibration and validation of the 4-step models along with [Intervenor]. The calibration and validation will be conducted based on guidelines/standards provided on NCHRP Report 716. For the ABM interface, the local consultant is expected to re- write/modify the code with the ABM system in order to successfully interface it with Visum ([Intervenor] will provide full support on the Visum side required in this process.) As a software expert, [Intervenor] will support [Respondent] model coordinator (or selected consultant), local model expert, to complete fine-tuning and localization process and attend meetings (as necessary) to provide continuous feedback. By contrast, Petitioner's proposal responds to Scope of Services 7.3.2 with an unconditional undertaking to convert, not just Respondent's Citilabs model and local nonABMs, but also local ABMs: In this section, we present our approach to and time frame for the model conversions. Quite obviously model conversions are the principal obstacle to a successful transition to new travel demand modeling software. We will not be taking on this task from scratch, as we have already converted a number of current Florida models and, upon selection, would aggressively ramp up the model conversion efforts. No one has more experience in converting models from Citilabs software to another platform than we do, as we have been doing it for more than two decades. Recently we converted the NFTPO [North Florida Transportation Planning Organization] activity-based model to run on TransCAD. In the process, we improved the models in several respects. First, we replaced the stick road network with an accurate HERE network that was already licensed. We then recreated the transit network so that the buses run on the correct streets in the road network. In doing so, we also fixed errors in both networks. We also identified and fixed a variety of errors in the model scripts and significantly reduced the run times for both models. We also converted the statewide model and the Olympus training model as part of the aborted ITN process. [The "aborted ITN process" refers to an earlier, unsuccessful effort by Respondent to procure the subject software by an invitation to negotiate.] At the outset of the conversion process, we will meet with the stakeholders for each model to be converted to understand their priorities and preferences and to develop a mutually acceptable approach to the model conversion. We will welcome the participation of involved consultants as well as agency managers in these discussions. We will use templates for FSUTMS in TransCAD to facilitate the conversion process. These will consist of a standard flowchart interface and the identification of the specific macro functions to be used for trip generation, trip distribution, model choice, and assignment. Highly experienced staff will then perform the conversions and test the results to ensure a successful outcome. Significant discrepancies will be investigated and resolved in a technically proficient manner, consulting with agency representatives if errors are found that need to be corrected. Each and every conversion will ensure that similar results are obtained, may at the option of each model stakeholder have obvious scripting errors corrected, and will improve upon validation measures and run much faster than the current Cube version model. Each conversion will be accompanied by a technical memorandum detailed the conversion effort, changes made, and validation achieved. The conversion effort will be further strengthened and memorialized in the creation of standard scripts for FSUTMS in TransCAD, which will be published and shared with users statewide. We estimate that we will be able to complete all the conversions in a 6- to 12-month time frame. Based on our prior experience, we know that different agencies will have different timetables for this work, and we intend to work with [Respondent] and other model stakeholders to schedule the work effort to reflect these schedules and [Respondent] priorities. We will be mindful of the improvement and standardization opportunities afforded by the conversion effort and will work close with [Respondent] and MPO staff to incorporate some upgrades to the models as part of the process. Upon close analysis, the promise of kick-offs featured in Intervenor's proposal fade to a more prosaic element of the kicking game, as Intervenor fails to convert and punts its responsibilities to Respondent, local agencies, and even unspecified private consultants. In three ways, Intervenor's proposal comes up short as to conversion, so as to deprive Respondent of much of the benefit of the bargain that is the purpose of the procurement. First, Intervenor's proposal does not undertake the conversion of the four travel demand ABM models, which include the heavily populated areas of southeast Florida and Tampa Bay. Instead, Intervenor shifts the responsibility for converting the ABMs, so as to enable them to interface with Visum, to local consultants who are, in the RFP, third-party beneficiaries of the procurement, not the vendor or its subcontractors. Intervenor's unwillingness to convert the ABMs evidences the difficulty of converting this type of model, as borne out by Petitioner's proposal. Petitioner has considerable experience converting Citilabs' travel demand modeling software, so Petitioner's conversion of Respondent's Citilabs model, which Intervenor also has agreed to do, should not be difficult; the open-ended timeframe to which Petitioner committed for converting all of the models--6 to 12 months--likely reflects the difficulty of converting the ABMs, which Intervenor has expressly declined to do. Second, Intervenor fails adequately to describe exactly what it will undertake as to the conversion of ABMs. For these four models, including two with very large service bases, the last sentence of the above-quoted excerpt from Intervenor's proposal offers only Intervenor's support of the "localization" efforts of other parties. Failing to define "localization," Intervenor nonetheless has made it clear that it does not accept the RFP requirement that it convert the four ABMs. To this requirement, Intervenor has attached a condition that relieves Intervenor of the responsibility for the final step or steps necessary for local agencies' travel demand models, which will share the new platform of Respondent's software, actually to work. By so doing, Intervenor has declined unconditionally to assume the daunting tasks of calibration, in which each model is adjusted to force results that match real-world conditions, and validation, in which the model is tested by performing a model run for an historic period, for which the actual data is known, to confirm that the model's output compares favorably to actual results--although, as described in Scope of Services 6.1, quoted above, validation in this RFP also may mean the ability of the model to reproduce the outputs of the model that it is replacing. Third, Intervenor's proposal does not contain the required timeline for the conversion work that Intervenor has undertaken to perform. Intervenor has not imposed upon itself the required timeline for any of the 13 models required to be converted. The materiality of this omission is underscored by Petitioner's warning, "Quite obviously model conversions are the principal obstacle to a successful transition to new travel demand modeling software." Intervenor's nonresponsiveness to the conversion requirements in Scope of Services 6.1 and 7.3.2 confers upon Intervenor a competitive advantage. Conversion, calibration, and validation of the 13 travel demand models are time- consuming, expensive processes, which are at the core of the services for which Respondent is paying in this procurement, so that a proposal that incompletely undertakes these responsibilities confers upon the proposer a significant competitive advantage. Intervenor has also undermined Respondent's ability to enforce the contract in case of incomplete work by shifting to Respondent and private consultants the final stages of the conversion of the ABMs and omitting a timeframe within which to complete any of the 13 conversions. Access as a Co-Licensee for Universities in their Teaching Capacity and Affordable Access for Universities as Consultants and Private Consultants Petitioner argued in its proposed recommended order that Intervenor's proposal is nonresponsive due to inadequacies in its undertaking to provide access to the travel demand modeling software for universities and certain private modeling consultants. As the heading indicates, there are two distinct aspects to this challenge. Scope of Services 7.4 provides: While [Respondent] makes the modeling software available to other public agencies (and Universities acquire no-cost teaching licenses), selection of the software will consider the costs to private industry working in Florida. Private industries and Universities work in collaboration with [Respondent] and Florida's public agencies. It is important to ensure that these industries, particularly smaller firms, have affordable access to the selected software. In Addendum No. 1, Respondent responded to a vendor's question of how and where to present pricing information pertaining to the specifications contained in Scope of Services 7.4. Respondent replied: "Please present a price, a discount, or your approach as to how these entities will have affordable access to the selected software in section 7.4." Intervenor's proposal responds to Scope of Services 7.4 as follows: [Intervenor] has been providing a separate pricing structure for academic users. First, all academic users in Florida will get access to not only Visum licenses as a part of this contract but also, for each semester, they will be eligible for additional classroom licenses for up to 60 students per request. If they would like to acquire separate licenses, they will be eligible for academic pricing where we provide all four off-line software that [Intervenor] provides. For smaller firms in Florida, we will apply maximum multiple license discount (50%) from first license; however, we will require them to submit Florida DBE [Disadvantaged Business Enterprise] certification to ensure their eligibility. In addition, we will offer a lease-to-own option as well as making Visum license to be even more affordable to them. Leased licenses will be fully functional with an expiration date. Upon expiration, user will be able to choose whether they would like to purchase a license and the full amount that they have paid until then (within 1-year) will be applied as a credit toward their purchase. In this way, we can provide affordable access to users with smaller companies. Petitioner's proposal, which refers to its travel demand modeling software as "TransCAD" and its traffic simulator software as TransDNA and TransModeler, responds as follows: Our offer will actually lower the cost to Florida consultants and university researchers. Many, of course, already have our software and will not need to acquire additional licenses. For those that will need licenses, we will provide TransCAD free of charge, but expect that the normal annual support fee of $1,200 be paid up front to receive the software. We will limit this offer to two copies per consulting firm for use in Florida and for work performed for Florida public agencies. Similarly, we will offer one optional TransModeler license to Florida consultants and university researchers for work performed in Florida for free but with the normal annual support fee of $1,500 per year to be paid in advance. Intervenor's proposal is nonresponsive in two respects. First, Scope of Services 7.4 clearly identifies as co-licensees local public agencies and universities in their teaching capacity. This is consistent with Introduction 1, which, as noted above, alerts in boldface that Respondent is acquiring the software and license for itself, the MPOs, local agencies, and universities in their teaching capacity. The university's teaching of traffic demand modeling is not feasible if only the professor were to be entitled to a free copy of the software, which students would be required to purchase at a cost of tens of thousands of dollars per copy. Attaching an impermissible condition to the requirement to treat the university in its teaching capacity as a co-licensee, Intervenor's proposal limits the free student copies to 60 per semester and offers additional student copies at an unspecified academic discount. Thus, Intervenor's proposal is nonresponsive to Scope of Services 7.4 and the Introduction in its treatment of universities in their teaching capacity as a co-licensee. As to Scope of Services 7.4, Petitioner's proposal is also nonresponsive because it imposes substantial "annual support fees" on all "free" university licenses--even though the above-quoted Price Proposal Form clearly includes the price of the "Annual License Renewal" for three years. Additionally, Petitioner's proposal fails to provide any free copies of the software for students. Second, regardless of whether they are private entities or universities, consultants, who are not co-licensees, are assured by Scope of Services 7.4 affordable access to the software. This assurance does not impose much of a burden upon a proposer. As amplified by Respondent's response to the second question in Addendum No. 1, each proposal was required to "present a price, a discount, or your approach as to how these entities will have affordable access to the selected software in section 7.4." Contrary to Petitioner's contention, a discount without a price against which to apply the discount is facially sufficient, so Intervenor's proposal is responsive to this requirement. However, Intervenor's proposal is nonresponsive because Intervenor inexplicably failed to offer its vague promise of preferential pricing to the class of users to whom Scope of Services 7.4 assures affordable access. Rather than extend its discount to all private and university consultants, Intervenor's proposal limits its discount to private consultants that are certified as DBEs, which is likely a small fraction of private consultants and, of course, improperly ignores all universities in their capacity as consultants. Intervenor's nonresponsiveness to these requirements confers upon Intervenor a competitive advantage. The advantage from failing to treat the universities in their teaching capacity as co-licensees means that every dollar exacted from students or universities in their teaching capacity for the term of the RFP is unearned because Respondent has already paid for these licensing rights in this procurement. The advantage from extending a discount to a small fraction of the class of persons entitled to the discount means that Intervenor will improperly realize thousands of dollars on the sale of undiscounted software to consultants that are not DBEs. Scoring A. Introduction The evaluators were T. Hill, T. Corkery, and Tabatabee (respectively, Evaluator 1, Evaluator 2, and Evaluator 3). The evaluators were not trained in the RFP, and they did not communicate with each other while scoring the three proposals. The evaluators worked briskly, completing their evaluations within two weeks. Evaluator 1 has been Respondent's state modeling manager for the past five years and has prior experience with Respondent in transportation modeling in a district office. He has a total of 18 years' experience in transportation modeling. Evaluator 2 has been employed by Respondent for 25 years. He is presently a senior travel demand modeler, in which capacity he has served for ten years. Evaluator 2 previously served as a transportation modeler for Respondent. Prior to his employment with Respondent, Evaluator 2 worked as a travel demand modeling consultant for seven years. Evaluator 3 lacks experience in modeling, but instead is experienced in statistics and the development of Respondent's traffic data system, which supplies the data used for traffic modeling. As noted above, none of the evaluators lowered a score of Intervenor's proposal due to its nonresponsiveness, but neither did they lower a score of Petitioner's proposal due to its nonresponsiveness. In any event, these omissions have not rendered the scoring clearly erroneous. Oddly, Evaluator 3 may have lowered a score of Petitioner for complying with an RFP provision. Evaluator 3 testified that Petitioner improperly included a price within its Technical Proposal, even though, as noted above, Respondent instructed the proposers to do so in Addendum No. 1. However, this act has not rendered Evaluator 3's scoring clearly erroneous. In contrast to the clear, confident testimony of Evaluators 1 and 2, who demonstrated fluency with the RFP and reasonable familiarity with the proposals, the testimony of Evaluator 3 was often vague, sometimes confusing, and, at least once, as noted in the preceding paragraph, confused. Perhaps due to his unique expertise, Evaluator 3 was not as conversant as the other evaluators with the RFP or the proposals. But Evaluator 3's shortcomings do not render his scoring clearly erroneous, although it inspires less confidence than the scoring of Evaluators 1 and 2. In any event, Petitioner would have lost to Intervenor even if Evaluator 3's scores had been discarded. Averaging the scores of Evaluators 1 and 2, Intervenor outscored Petitioner on the Technical Proposal 86.875 to 83.125, so the addition of Intervenor's Price Proposal score of 3.69 and Petitioner's Price Proposal score of 5.33 would have yielded a final score of 90.565 for Intervenor and 88.455 for Petitioner. Moreover, the scoring of the two sections at issue-- Scope of Services 3 and 7--did not reveal that Evaluator 3 was much of an outlier. For Scope of Services 3, Evaluators 1 and 2 assigned a 4 to both proposals, and Evaluator 3 assigned a 3 to both proposals. For Scope of Services 7, Evaluator 3 assigned to each proposal the same score as one of the two other evaluators: for Intervenor's proposal, Evaluators 1 and 3 assigned a 4, and Evaluator 2 assigned a 3, and, for Petitioner's proposal, Evaluator 1 assigned a 4, and Evaluators 2 and 3 assigned a 3. Petitioner's evidence of clearly erroneous scoring takes two forms. First, Petitioner relies mostly on the testimony of its principal, who is extremely knowledgeable about travel demand modeling, but equally interested in the outcome of the case. Second, Petitioner relies on a few internal inconsistencies in scoring that are not so grave as to render the scoring clearly erroneous. Petitioner's task of proving clearly erroneous scoring was undermined by the strong testimony of Evaluators 1 and 2, the open-ended nature of the scoring criteria driving a single score for each section, and, for Scope of Services 7, the large number of unweighted subsections. It is a daunting task for a party challenging a proposed award in a highly technical procurement to set aside scoring as clearly erroneous without the testimony of at least one independent expert witness, who is well informed of the facts of the case. Scoring of Scope of Services 3: Network Scope of Services 3 comprises two subsections: True Shape Network--At a minimum, the vendor's software must efficiently accommodate true shape networks. Integrated Advanced Network Capabilities--Inefficiencies of contemporary modeling networks have made it challenging to share data among models and have led to duplication in data collection. This results in less than optimal model execution times and consequently reduced capacity to develop multiple scenarios efficiently. The vendor's software shall include access to integrated advanced networks and capabilities that promote a unified network platform for all travel demand models in the state and promote more efficient and flexible networks. These subsections generally ask each evaluator to assess how efficiently the proposed software accommodates true shape networks, which capture the actual geometry of roads rather than invariably representing them linearly as sticks, and the accessibility of the proposed software to integrated advanced networks and capability that promote a unified network platform for all travel demand models. The phrasing of these criteria introduces an element of flexibility in the scoring of the proposals under Scope of Services 3, although this section is much less open-ended than Scope of Services 7 and its myriad criteria. Evaluator 1 testified to no significant differences between the proposals of Intervenor and Petitioner in handling true shape networks and integrating advanced networks. Evaluator 2 testified that the proposals of Intervenor and Petitioner offered true shape networks and also did well in importing other map-based information on top of the road information, which evidences the integration of advanced network capabilities. This testimony is credited, and Petitioner has failed to prove that the scoring of Scope of Services 3 was clearly erroneous in favor of Intervenor's proposal. Scoring of Scope of Services 7: Other Considerations Scope of Services 7 comprises nine subsections: Support Needs and Integration with Other Florida Models Model Flexibility Implementation and Collaboration Private Industry and University Consideration Comprehensive Documentation Training Plan Consultant Support Consultant Work Experience Addressing Florida's Future Modeling Needs Three of these nine subsections have a total of seven subsubsections, so a total of 16 separate scoring criteria are found in Scope of Services 7, which, like other scoring sections, is ultimately assigned a single score of 1 through 4. For Scope of Services 7, Intervenor's proposal received an average of 22.92 points, and Petitioner's proposal received an average of 20.83 points. As noted above, Intervenor's proposal is nonresponsive to Scope of Services 7.3 and 7.4, although Petitioner's proposal is nonresponsive to Scope of Services 7.4. Intervenor's proposal also offers one year, not three years, of training, so as to earn a relatively low score on Scope of Services 7.6 and describes less work experience than that described in Petitioner's proposal. However, the open-endedness of Scope of Services 7 requires deference even to Evaluator 3's enthusiastic endorsement of Intervenor's proposal's response to Scope of Services 7.6 for its division of the state, for personnel training, by latitude, not longitude, exactly as Evaluator 3 does. Nothing in the RFP compels a specific weighting of the 16 scoring criteria in Scope of Services 7. Addressing this point in its proposed recommended order, Petitioner argued that for a score "to be true of the overall whole [section,] it must also be true of a fair number of its parts." The deferential standards discussed in the Conclusions of Law undermine this assertion by reducing a "fair number" to a very low number. Although Evaluators 1, 2, and 3 struggled to justify their scores for Intervenor's proposal as to Scope of Services 7, as compared to the explanations offered by Evaluators 1 and 2 as to Scope of Services 3, Petitioner failed to prove that their scores were clearly erroneous in favor of Intervenor's proposal.
Recommendation It is RECOMMENDED that the Department of Transportation enter a final order rejecting Intervenor's proposal as nonresponsive. DONE AND ENTERED this 20th day of April, 2018, 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 20th day of April, 2018. COPIES FURNISHED: Douglas Dell Dolan, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 (eServed) Frederick John Springer, Esquire Elizabeth W. Neiberger, Esquire Bryant Miller Olive P.A. 101 North Monroe Street, Suite 900 Tallahassee, Florida 32301 (eServed) Bryan Duke, Esquire Messer Caparello, P.A. 2618 Centennial Place Tallahassee, Florida 32308 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 (eServed) Michael J. Dew, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450 (eServed)
Findings Of Fact At all times material hereto Respondent James M. O'Nan was a licensed real estate broker in the state of Florida having been issued License No. 0222587. At all times material hereto Respondent International Real Estate Consultants, Inc., was a corporation registered as a real estate broker in the state of Florida having been issued License No. 0222586. At all times material hereto Respondent O'Nan was the qualifying broker for and president of Respondent International Real Estate Consultants, Inc. On or about May 29, 1984, Respondents solicited Dr. Murray Heiken to invest in a limited partnership for the purpose of acquiring real property located in Miami at South Dixie Highway and Southwest 67th Avenue to be used as the site for a bank. Respondents represented in that solicitation that all monies would be placed into an interest-bearing escrow account. The minimum investment solicited by Respondents was $28,000. On or about June 6, 1984, Murray and Rosalyn Heiken gave Respondents $28,000 to be placed in Respondents' escrow account. On or about September 25, 1984, Respondents again solicited Dr. Murray Heiken and Rosalyn Heiken regarding the sale of the Nautilus Hotel in Miami Beach. On or about October 1, 1984, Dr. Murray Heiken, Rosalyn Heiken, and Dr. Bruce Heiken paid $14,000 to Respondents toward the Nautilus Hotel purchase. On or about February 25, 1985, Respondents informed Dr. Murray Heiken and Rosalyn Heiken that the Nautilus Hotel transaction had been terminated. Respondents offered a new project and requested an investment of $24,000 from the Heikens. Dr. Murray Heiken paid $24,000 to the Respondents. On or about February 24, 1986, Respondents notified the Heikens that the other transaction did not close. The Respondents stated that all deposits would be refunded. On or about June 23, 1986, Respondents notified Dr. Murray Heiken that they were still liquidating the partnership and that the investors should be patient. Despite repeated demands made, Respondents have failed to return any monies to the Heikens although those monies were required to have been maintained in escrow and even though none of the properties were purchased by the partnership.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered finding Respondents James M. O'Nan and International Real Estate Consultants, Inc., guilty of the allegations in the Administrative Complaint and revoking their licenses as real estate brokers. DONE and RECOMMENDED this 28th day of January, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 28th day of January, 1988. COPIES FURNISHED: Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Arthur R. Shell, Jr., Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 James M. O'Nan International Real Estate Consultants, Inc. c/o Fort Loudoun Investments, Inc. 11020 Kingston Pike Knoxville, TN 37922 James M. O'Nan International Real Estate Consultants, Inc. c/o Patricia O'Nan Crews 6850 Cassia Place Miami Lakes, Florida 33014 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Petitioner is entitled to an exemption from the requirements of Section 559.927, Florida Statutes, under subsection (12)(h) of the statute.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Global Touring, Inc., is in the wholesale travel business. It sells Australia and New Zealand travel packages to travel agencies. Jennifer Pickens is Global Touring, Inc.'s sole shareholder and its President. Pickens has been in the travel business in Broward County, Florida, since 1983, when she started her own travel agency, Global Travel Service, which she operated as a sole proprietorship. At the time, the Air Traffic Conference (hereinafter referred to as the "ATC") had an airline ticket purchase and payment program for participating travel agents. In September of 1983, Pickens contracted with the ATC to participate in its program. She was given an ATC Agency Code Number (618310) and placed on the official ATC Agency List. Approximately a year later, Pickens began a wholesale travel operation, Global Touring Service, which sold tours to Australia and New Zealand. Global Touring Service and Global Travel Service operated out of the same office. Pickens used her ATC Agency Code Number to write airline tickets for both operations. Effective the close of business on December 30, 1984, the ATC terminated its airline ticket purchase and payment program for travel agents. The ATC program, however, was replaced by a similar program operated by the Airlines Reporting Corporation (hereinafter referred to as the "ARC"). Travel agents on the official ATC Agency List were given an opportunity, at their option, to be placed on the official ARC Agency List "in substantially the same status as that agent st[ood] on the ATC list on December 30[, 1984,]" by entering into an agreement with the ARC to participate in its replacement program. Pickens opted to participate in the program. She was assigned an ARC Agency Code Number and placed on the official ARC Agency List. On November 20, 1985, Pickens incorporated her business enterprises. She created one corporate entity, Jennifer R. Pickens Travel, Inc., with two operating divisions: Global Travel Service and Global Touring Service. The newly formed corporation continued to operate under the contract Pickens had entered into with the ARC. In 1986, Jennifer R. Pickens Travel, Inc., purchased another travel agency, Lighthouse Travel Services. Jennifer R. Pickens Travel, Inc., assumed Lighthouse Travel Services' contract with the ARC and Lighthouse Travel Services' ARC Agency Code Number and it cancelled the ARC agreement under which it had been conducting business prior to its purchase of Lighthouse Travel Services. Lighthouse Travel Services and Global Travel Service were combined into one retail travel operating division bearing the name of the former. In December of 1991, Jennifer R. Pickens Travel, Inc., changed its name to Global Touring, Inc., and eliminated its retail travel operating division. Since that time, it has engaged only in the wholesale travel business. On or about March 1, 1992, Global Touring, Inc., sold the assets of its former retail travel operating division, including its ARC contract and ARC Agency Code Number, to YAM, Inc. Following the sale, Global Touring, Inc., sought to enter into another contract with the ARC and obtain a new ARC Agency Code Number. Because the paperwork Global Touring, Inc., initially submitted to the ARC was lost, it was not until on or about December 9, 1992, that Global Touring, Inc., entered into such a contract and received a new ARC Agency Code Number (10-53349-3). The contract is still in effect. Since its inception, with the exception of the period from on or about March 1, 1992, to on or about December 9, 1992, Global Touring, Inc., has continuously operated under a contract with the ARC. While it has undergone a name change, it has remained under the ownership and control of the same person, Jennifer Pickens, during the entire time that it has had a contractual relationship with the ARC. Earlier this year, Global Touring, Inc. submitted to the Department an application for a statement certifying that, based upon the total number of years it has contracted with the ARC, it is exempt from the requirements of Section 559.927, Florida Statutes. Pickens, who prepared the application, failed to sign it. In the application, she asserted that Global Touring, Inc., had been "a member of ARC since: 09/14/83," holding "ARC Number 618310." The Department preliminarily determined to deny the application. In its letter to Pickens advising her of its preliminary determination (hereinafter referred to as the "Notice of Proposed Denial"), the Department gave the following reasons for its proposed action: Application for exemption unsigned, with wrong data; 2) ARC approval 10-53349-3, made 12/9/92 is less than 3 years. Such proposed action is consistent with the Department's practice of granting exemptions under subsection (12)(h) of Section 559.927, Florida Statutes, only to those sellers of travel who are able to show that they have an agreement with the ARC which has been in effect for at least the immediately preceding three years. Pickens responded to the Department's advisement with a letter of her own, the body of which read as follows: We wish to apply for a Formal Procedure Hearing. We applied for an exemption on July 22, 1994 and it seems that the reviewer completely ignored all the enclosures. We have been in the travel business since 1983. We took over Lighthouse Travel in 1985 and had the ARC number 618310 for seven years until selling Lighthouse Travel in 1992 and allowing the ARC number to remain with that part of the business. In 1992, after having our application lost, we again became members of ARC, and all of the above under the same company, Jennifer R. Pickens Travel Inc. which changed its name in 1991 to Global Tour- ing, Inc. In the interim we have become one of the 10 largest American Wholesalers to Australia and New Zealand. Our company can obviously prove an ARC relationship for 3 years (actually 11 years) and a history of selling travel for the same period. We therefore request an exemption as per our submis- sion and inasmuch as a formal hearing seems to be the procedure, we hereby request such a hearing. The letter was dated August 25, 1994, and signed by Pickens in her capacity as the President of Global Touring, Inc. After receiving Pickens' letter, the Department referred the instant matter to the Division of Administrative hearings.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order granting Petitioner's application for a letter of exemption pursuant to Section 559.927, Florida Statues. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1994. STUART M. LERNER 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 27th day of December, 1994.
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 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
The Issue Whether Respondent acted as a real estate agent without being licensed in violation of section 475.42(1)(a), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the administrative hearing, the following findings of facts are made: COMPLAINT This complaint was instituted when Mr. Manning became aware of a $250.00 payment to a Keller Williams real estate agent (KW agent). Upon inquiring, Mr. Manning was told the fee was to pay the KW agent for securing the third tenant of his rental property located at 12522 Belcroft Drive, Riverview, Florida (property). Mr. Manning was not informed that this process would be engaged, and he was caught off guard when the payment came to light. Mr. Manning was also concerned that he was not receiving consistent payments for the rental of his property. PARTIES Petitioner is the state agency charged with the responsibility of regulating the real estate industry pursuant to chapters 455 and 475. Petitioner is authorized to prosecute cases against persons who operate as real estate agents or sales associates without a real estate license. At all times material, Respondent was not a licensed real estate broker, sales associate or agent. Respondent is a co-owner of J & D Associates, a property management company that he owns with his wife, Ms. Woltmann. Additionally, J & D Associates was not licensed as a real estate broker, sales associate or agent. PARTICULARS In 2012, Mr. Manning was serving in the U.S. Air Force, and was stationed in the Tampa Bay area of Florida. At some point, Mr. Manning received military orders to report to Texas for additional cross-training. Mr. Manning wanted to sell his property, and he was referred to Ms. Woltmann, a Florida licensed real estate agent. Mr. Manning and Ms. Woltmann met and discussed the possibility of selling Mr. Manning’s property. Ms. Woltmann performed a market analysis and determined that Mr. Manning would have to “bring money” to a closing in order to sell his property. Mr. Manning made the decision that he would rent his property. Thereafter, Ms. Woltmann introduced Mr. Manning to Respondent. Mr. Manning assumed that Respondent was a licensed real estate agent. If he had known that Respondent was not a licensed real estate agent, Mr. Manning would not have hired Respondent. On or about April 26, 2012, Respondent executed a “Management Agreement”5/ (Agreement) with Mr. Manning, regarding his property. The Agreement provided in pertinent part the following: EMPLOYMENT & AUTHORITY OF AGENT The OWNER [Mr. Manning] hereby appoints J & D Associates as its sole and exclusive AGENT to rent, manage and operate the PREMISES [12522 Belcroft Drive, Riverview, Florida]. The AGENT is empowered to institute legal action or other proceedings on the OWNER’S behalf to collect the rents and other sums due, and to dispossess tenants and other persons from the PREMISES for cause. * * * RESPONSIBILITIES OF THE AGENT: In addition to the forgoing authorizations, the AGENT will perform the following functions on the OWNER’S behalf. Collect all rents due form [sic] the tenants. Deduct from said rent all funds needed for proper disbursements of expenses against the PROPERTY and payable by the OWNER, including the AGENT’S compensation. Collect a security deposit received from a tenant of the PROPERTY and place it into an escrow account as required by the laws of the State of Florida. COMPENSATION OF THE AGENT: In consideration of the services rendered by the AGENT, the OWNER agrees to pay the AGENT a fee equal to FIFTY PERCENT (50%) OF THE FIRST MONTH’S RENT AND ten percent (10%) per month of the monthly rent thereafter during the term of the tenancy as management fees for the PROPERTY. In the case of holding over the lease beyond the terms of the lease by the same tenant, the Fifty (50%) up front [sic] fee shall also be waived and only the TEN PERCENT (10%) per month fee shall apply. The Fifty (50%) fee shall apply to new tenants only. In the case of a tenant moving out within the first three months of the tenancy, then the fee for obtaining a new tenant and new lease shall be only FIFTEEN PERCENT (15%) of the first month’s rent from the new tenant and TEN PERCENT (10%) of the monthly rent thereafter. (Emphasis added via underline.) At various times, Respondent provided Mr. Manning a list of eligible tenants. Also, Respondent would provide his opinion as to who would be the best candidate to rent the property. Mr. Manning would, “nine times out of ten,” go with Respondent’s recommendation for the rental tenant. In June 2012, “Richard L. Sovich J & D Associates, Agent For Elijah Manning,” executed a “Residential Lease for Single Family Home and Duplex” with a tenant. On the signatory page, the following printed form language is found on the upper half of the page: This Lease has been executed by the parties on the date indicated below: Respondent’s signature is over the “Landlord’s Signature line, “As” “Agent.” On the lower half of the signatory page, the following printed form language is found; the handwritten information is found in italics: This form was completed with the assistance of Name Richard Sovich Address 1925 Inverness Greens Drive Sun City Center, Fl 33573-7219 Telephone No. 813/784-8159 Ms. Woltmann testified that she had a listing agreement for each time she listed Mr. Manning’s property for rent. With each listing agreement, Ms. Woltmann was able to list the property in the multiple-listing system (MLS)6/ while she was associated with the Century 21, Shaw Realty Group. The three listings, as found in Respondent’s composite Exhibit E, included (along with other information) the list date, a picture of the property taken by Ms. Woltmann, and the dates the property would be available: May 5, 2012, for the rental beginning on June 1, 2012, at $1,550.00 per month; November 1, 2012, for the rental beginning on December 1, 2012, at $1,550.00 per month; and March 14, 2014, for rental beginning on May 1, 2014, at $1,600.00 per month. Each time the property was rented, Ms. Woltmann changed the MLS listing to reflect the actual lease dates: June 16, 2012; December 13, 2012; and May 19, 2014, and each was rented at the monthly rental price listed. Ms. Woltmann claimed that the rental price had to be lowered for the second rental. However, the documentation that she confirmed she inputted into the MLS at the time the property was rented, reflects the rental price was not lowered during the second rental period.7/ The rental price was actually raised for the third rental period. Ms. Woltmann also claimed she procured the first two tenants for Mr. Manning’s property and waived (with the consent of her broker agent) her lease fee each time. Three years ago (2014) during the Manning lease periods, Ms. Woltmann “left abruptly” the real estate company she was working for and that company “is now closed.” Yet, she testified that those listing agreements “should be there” if she went back to her broker and asked for them. Based on inconsistencies in her testimony, Ms. Woltmann’s testimony is not credible. Mr. Manning received payments from Respondent for approximately three years totaling “about $45,000.” Mr. Manning paid Respondent “maybe four or five thousand dollars. Maybe a little bit less” for his service. Respondent admitted he received compensation from the rental of Mr. Manning’s property for approximately three years, but denied that he procured any tenants for the property. It is determined that the testimony of Respondent and his wife Ms. Woltmann, is not credible and persuasive. Neither can be considered “disinterested.” The testimony of Mr. Manning is more credible. As the investigator supervisor, Mr. McAvoy is knowledgeable about the purpose of conducting unlicensed activity investigations. Its purpose is “to investigate matters surrounding unlicensed activity within the real estate profession . . . so to protect the public from possible harm surrounding those transactions.” Each investigator is required to record the amount of time spent in an investigation. An investigation was undertaken regarding Mr. Manning’s complaint. Petitioner incurred $49.50 in investigative costs during this case.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission finding Richard Sovich in violation of section 475.42(1)(a), Florida Statutes, as charged in the Administrative Complaint; and imposing an administrative fine of $500, and $49.50 as reasonable costs. DONE AND ENTERED this 5th day of May, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 5th day of May, 2017.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Stipulated Facts: Petitioner submitted its application for DBE certification on or about July 27, 1993. Petitioner and Travel Professionals International Licensing Co., d/b/a Travel Professionals, Inc. (TPI) entered into a franchise agreement on September 28, 1993. Department conducted an on-site review of Petitioner's business on November 4, 1993. Department notified Petitioner of its intent to deny its application for DBE certification by certified mail on December 9, 1993. Petitioner requested a hearing pursuant to Section 120.57(1), Florida Statutes, on December 15, 1993. One hundred per cent of Petitioner's stock is owned by Jeanne Santo, a "socially and economically disadvantaged individual" as defined in Rule 14- 78.002(1), Florida Administrative Code, and therefore, Petitioner is in compliance with 14-78.005(7)(b), Florida Administrative Code. All securities which constitute ownership by Jeanne Santo are held directly by Jeanne Santo, and therefore Petitioner is in compliance with Rule 14-78.005(7)(d), Florida Administrative Code. The contributions of capital or expertise invested by Jeanne Santo are real and substantial, and therefore Petitioner is in compliance with Rule 14- 78.005(7)(f), Florida Administrative Code. The provisions of Rule 14-78.005(g) and (h), Florida Administrative Code, do not apply to Petitioner. The franchise agreement (Agreement) between Petitioner and TPI contains the following terms and conditions which are not in the agreements between Petitioner and Airlines Reporting Corporation (ARC); Petitioner and International Airlines Travel Agent Network (IATAN); and Petitioner and Systems One: a requirement that Petitioner locate its travel office only in "That portion of Pinellas County, Florida lying south of Florida State Highway 694". a requirement that Petitioner pay a quarterly advertising contribution. a requirement that Petitioner attend mandatory managers' meetings. ARC is customary in the travel agency industry. IATAN is customary in the travel agency industry. A leasing agreement for an automated reservation and ticketing system is customary in the travel industry. The Agreement requires that Petitioner be an ARC agent. Facts Not Stipulated The Fral Highway Administration (FHWA) is the federal agency that inisters the DBE program on the national level. The Department is the agency charged with the responsibility of administering the DBE program for the State of Florida. In making its determination of an applicant's eligibility for DBE, the Department considers: (a) Surface Transportation Uniform Relocation Assistance Act of 1987 (Public Law 100-17); (b) 49 CFR Part 23; (c) Chapter 339, Florida Statutes, (d) Chapter 14-78, Florida Administrative Code, (e) United States Department of Transportation (USDOT) administrative decisions; and (f) guidelines and training material from the FHWA or USDOT. The USDOT through FHWA provided the Department with a copy of DBE Program Administration Manual (Publication No. FHWA-HI-90-047, April, 1990) which the Department uses as a guideline for USDOT's and FWWA's interpretation of the DBE program. Below are portions of the Agreement which are pertinent to this preceeding: Purposes of this Agreement: We have developed the Travel Professionals International System (hereinafter called "the TPI System) for the operation of retail travel agencies, and we have developed policies, procedures and techniques that are designed to enable such agencies to compete more effectively in the travel market... You have requested our assistance, the use of the TPI Systems, and a franchise from us to operate a retail travel agency using the TPI System.... Franchise: We hereby grant to you and you hereby accept from us a franchise to operate a retail travel agency utilizing the TPI System, only at the following location(s): That portion of Pinellas County, Florida lying south of Florida State Highway 694. We will not establish another franchisee or agency owned by us within the territory described above, or establish other franchises or company owned outlets providing similar products and services under a different trade name or trademark or modify your territory without your written permission, so long as you are not in default under the terms of this Agreement.... You may move the office of the travel agency to a new location in the same general vicinity with our prior written approval, which approval will not be unreasonably withheld. You may not operate any additional office or location without our prior written consent, which consent will be given upon inspection and approval of such new premises.... Advertising Contributions: In addition to the service fees set forth above, you will be required to pay an "advertising contribution" in the amount of ONE HUNDRED FIFTY ($150.00) DOLLARS per quarter. We may adjust the advertising contribution annually on October 1, provided that any increase in the advertising contribution will be made only with the affirmative vote of at least fifty percent (50 percent) of the franchisees...The advertising contributions of all franchisees shall be placed in an advertising fund to be managed by us, and shall be used exclusively for advertising. Tradenames, Service Marks, Logos, Trade Secrets, and other Proprietary Matters: d. As you know, you will be given certain information about the Travel Professionals International System, our products and methods of doing business, as well as preferred supplier agreements, training and educational programs, computer operation and computer system arrangements, correspondence, memoranda, operating, sales and marketing manuals, and other confidential information. You recognize and acknowledge that this information is a valuable, special and unique asset belonging to us and constitutes our trade secrets which you agree to keep secret and not to disclose, during the operation of this Agreement, or after its termination or expiration, to any person or entity for any reason or purpose whatsoever.... Relationship of Parties: During the term of this Agreement, and any renewal term, you will be an independent contractor, and you will have no authority, expressed or implied, to bind us or to act as our agent, legal representative, or joint venturer. At our option, you will be required to describe yourself on all business forms, invoices, orders, stationery, and the like, as an independent licensee of Travel Professionals International, and to submit all such items to us for our written approval...The operation of your business shall be determined by your own judgment and discretion, subject only to the provisions of this Agreement and our policies and procedures, as they may be adopted or revised from time to time. We will not regulate the hiring or firing of your employees, the parties from whom you may accept business, the working conditions of your employees, or the terms of your contracts with your customers, except as may be necessary to protect the Travel Professionals International System. Service To Be Provided By Us: We will provide the following services to you pursuant to this Agreement: (b) We will prescribe certain standards of operation designed to enhance your profitability, which we shall expect you to follow. * * * (e) We may make recommendations to you regarding accounting and recordkeeping systems. * * * We will provide you with a policy manual, operations manual, preferred supplier manual, marketing manual, and an employee handbook which may be updated periodically. We will provide you with marketing, sales and promotional aids to include currently available professionally produced television spots, a series of high quality radio jingles, and from time to time, printed and other promotional material for use in your local area. We will operate an ongoing training program for you and your personnel. This program will include seminars, conferences, familiarization trips, and printed materials, such as bulletins and manuals, relating to marketing, management, and accounting procedures, and the like, and developments with the travel industry... * * * (l) We will provide, at no charge, up to five (5) person days of management expertise and sales effort effective on the first date of contract signing.... Your Obligation: During the term of this Agreement, and any renewal term, you will obligated to pay promptly to us any fees that are due hereunder, to maintain and keep such records and reports as we may prescribe, and to provide us with copies of such records and reports. You will be required to allow us to make inspection of your business and premises at any reasonable time, and to allow us to examine your books, tax returns and records during normal working hours. We reserve the right to establish a uniform accounting system to keep your books and records in conformity with such system. Your business shall be conducted in conformity with the provisions of this Agreement, with such policies and procedures as we may publish from time to time, and all state, federal and local laws and regulations.... You will be required to cause your chief operating officer or manager to attend our next available training program and to cause each of the franchise employees and principals (as shown on Schedule A attached hereto) to attend the required training courses set forth in our published policies and procedures. At present, mandatory training programs we provide include "New Owners Orientation", "New Manager Orientation", and the periodic "Managers Meetings". Although we are not obligated to do so, we offer, and plan to offer in the future, periodic (at least three times per year), Managers Meetings. Attendance at Managers Meetings, when offered, is mandatory. In the event you fail to send a representative to any Managers Meetings, then you shall pay to us the registration fee for that meeting, notwithstanding your lack of attendance at such meeting. Although paragraph 8 does require Petitioner to pay a fixed sum to TPI for advertising, it does not restrict the qualifying owner's exercise of control over the day-to-day decisions concerning advertising. In fact, TPI, under paragraph 11(i) of the Agreement, agrees to furnish certain materials to assist Petitioner in advertising on the local level. It is clear throughout the Agreement that the operation of the business is to be determined by the qualifying owner's own judgment and discretion subject to the provisions of the Agreement and TPI's policies and procedures which may be adopted or revised from time to time. Paragraph 4 , Terms of the Franchise, provides for the termination of the Agreement prior to its expiration date. It is clear from the qualifying owner's testimony ("Because nobody tells me what to do."), that she would terminate the Agreement rather than to allow TPI to exercise the day-to-day control of the business. There is no question that the qualifying owner has the authority to take such action under Paragraph 4 of the Agreement, if in no other manner, than by defaulting under Paragraph 4(4). This gives the qualifying owner the final authority as to who exercises the day-to-day control of the business. It is clear from the testimony of TPI's Vice-President of Franchise Sales and Development that TPI does not consider those provisions of the Agreement that appear to place restrictions on the qualifying owner's discretion as to the day- to-day control of the business as being mandatory, notwithstanding the language of the provisions to the contrary. Likewise, it is clear that TPI will not involve itself in the hiring, supervision or firing of employees because of the liability it would place upon TPI, notwithstanding any provision in the Agreement. The parties to the Agreement are experienced business people, who have expertise in the travel agency industry and franchising. The parties to the Agreement have clear and mutual understandings and interpretation of the meanings of the terms of the Agreement . Their understandings and interpretations are that the Agreement does not restrict the qualifying owner's exercise of the day-to-day control of the business. The parties' interpretation of the Agreement is a possible and permissible interpretation. TPI has some 60 franchisees within 22 states, with 17 franchisees in the State of Florida. There are several other franchisors that franchise travel agencies throughout the United States, including the State of Florida. The purpose of franchise agreements in the travel business in general, and this Agreement in particular, is to enable the small, independent travel agency to compete more effectively in the travel market. The growing trend in the travel agency industry is to belong to a franchise. The Agreement is a typical franchise agreement and customary in the travel industry.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order granting Petitioner's application for certification as a Disabled Business Enterprise. RECOMMENDED this day 9th of January, 1995, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0568 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. Petitioner has listed the stipulated facts separately as paragraphs 1 through 14. These stipulated facts have been adopted in Findings of Fact 1 through 14, respectively. Proposed findings of fact 1, 2, 3 and 4-5 adopted in substance as modified in Findings of Fact 23, 24, 26 and 21, consecutively. Proposed findings of fact 6 through 9 are neither material nor relevant to this proceeding. Proposed finding of fact 10 is adopted in substance as modified in Findings of Fact 20 through 22. Department's Proposed Findings of Fact. The Department has listed the stipulated facts separately as paragraphs 1 through 14. These stipulated facts have been adopted in Findings of Fact 1 through 14, respectively. Proposed findings of fact 1 and 2 are adopted in substance as modified in Finding of Fact 19. Proposed finding of fact 3 is adopted in substance as modified in Findings of Fact 20 through 22. Proposed findings of fact 4, 5 and 6 are adopted in substance as modified in Findings of Fact 15, 16 and 17, respectively. Proposed finding of 7 is rejected as being neither material nor relevant to this proceeding. Proposed findings of fact 8 and 9 are adopted in substance as modified in Findings of Fact 18. Proposed findings of fact 10, 11 and 12 are considered conclusions of law or legal argument and for that reason are rejected as Findings of Fact. Proposed findings of fact 13 and 14 are rejected as not being supported by the record. COPIES FURNISHED: Oscar Blasingame, Esquire Blasingame, Forisz, Smiljanich, P.A. Post Office Box 1259 St. Petersburg, Florida 33731 Dorothy S,. Johnson, Esquire Mary J. Dorman, Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee Florida 32399-0458 Ben G. Watts, Secretary ATTN: Eleanor F. Hunter Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue In relation to DOAH Case No. 05-0515, does the case involve the sale of securities as described in Chapter 517, Florida Statutes (2002), that would confer jurisdiction upon OFR to proceed to a hearing on the merits of the Administrative Complaint that forms the basis for DOAH Case No. 05-0515, and to what extent, if any, the named Respondents have been involved with the sale of securities sufficient to declare jurisdiction over their activities? Preliminary to that determination is the related issue concerning the possible pre-emption of OFR's regulatory authority by virtue of the regulatory action previously taken by the State of Florida, Department of Business and Professional Regulation, Division of Land Sales, Condominiums and Mobile Homes (DBPR) under authority set forth in Chapter 721, Florida Statutes (2002)? Argument has also been set forth concerning the significance of court cases as they might influence OFR's ability to declare their regulatory authority in this instance.
Findings Of Fact * * * 2. RESPONDENT is the 'creating developer' of the Universal Luxury Lease Plan, a personal property 'timeshare plan' as those terms are defined in sections 721.05(9)(a) and 721.05(37), Florida Statutes, located in the city of Sanford, Florida. * * * On or about July 10, 2003, DIVISION was made aware of a newspaper advertisement for Universal Luxury Lease Plan. This advertisement, promoted the purchase of a timeshare interest in the Universal Luxury Lease Plan as an investment that offered purchasers a 10 percent per year return on their investment. On July 25, 2003, DIVISION'S investigators were given an application package containing the Universal Luxury Lease Plan Enrollment Forms, CD-ROM, Public Offering Statement, Contracts and Motor Coach Brochures. The application package stated that it was advertising material being used for the purposes of soliciting timeshare interests. It described a component of the timeshare plan called the 'Affinity Rental Program' and stated that the program will typically produce a monthly income of 10 percent of the lease-hold ownership interest.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That an order be entered by OFR finding jurisdiction to proceed with the Administrative Complaint in DOAH Case No. 05- 0515 on its merits. DONE AND ENTERED this 6th day of January, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 6th day of January, 2006.
Findings Of Fact On or about September 21, 1981, Respondent, Ft. Myers Banana Boat, Inc., d/b/a Banana Boat, applied to enter the drawing for eight new quota liquor licenses for Lee County to be held on December 16, 1982. The application disclosed that Dykes J. Riggs and James G. Kincaid each owned fifty percent of the stock of the Respondent and served as president and secretary, respectively. On or about January 5, 1983, Respondent was notified that it had been selected in the drawing as one of the preliminary applicants. In late February or early March 1983, Respondent filed its application for licensure. The application again disclosed Dykes Riggs as president and James Kincaid as secretary. It added that Kincaid also served as treasurer. It omitted any reference to stock ownership. On or about July 22, 1983, Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), issued Respondent license number 46-1146, Series 4-COP, for the address 9100 South Cleveland Avenue, Ft. Myers. Because the location was unsuitable, Respondent, by letter dated August 5, 1983, requested the Division to place its license in escrow, and the escrow was "finalized" on or about January 31, 1984. The license remained in escrow until on or about November 30, 1984. While the license was in escrow, Riggs began to have serious doubts about the trustworthiness of Kincaid. In addition to their interests in Respondent, Riggs and Kincaid also had interests in two other licensed businesses--Boca Banana Boat, Inc., and The Banana Boat of Pompano, Inc. (A third individual, Don Litzenberger, also had an interest in the Boca Banana Boat, Inc.) Kincaid was suffering from acute alcoholism and was in heavy debt. Riggs was concerned that Kincaid would transfer his interest in Respondent or one of their other licensed businesses in order to satisfy a portion of his debts. Riggs was concerned about having a substitute business associate with whom he would have to work. Although not his primary concern, Riggs also was concerned that, by transferring his interest in Respondent, Kincaid would be violating Section 561.32(4), Florida Statutes (1983), and that Respondent would lose its license. Riggs also was concerned because Kincaid had told him of the pendency of administrative proceedings against Kincaid in connection with two other licenses in which Kincaid had an interest. Subsequently, Riggs learned that Kincaid had given a creditor named Wagner a power of attorney over all Kincaid's interests. Riggs did not like Wagner and suspected that Wagner was of bad moral character and may not be qualified for licensure by the Division. If disqualified for licensure, Wagner's interests in Respondent and the other licensed businesses in which Riggs and Kincaid had interests would jeopardize the licenses. In addition, a transfer of interest in Respondent from Kincaid to Wagner would violate Section 561.32(4), Florida Statutes (1983). During this period, Riggs also suspected that Kincaid was stealing money from the operation of The Banana Boat of Pompano, Inc. To deal with all of these business problems with Kincaid, Riggs had Kincaid's name taken off all bank accounts of the three licensed businesses in which they shared interests and refused to allow Kincaid any further say in the operation or the businesses or to review the books and records of any of the corporations through which the businesses were operated. Kincaid sued Riggs, Respondent and Boca Banana Boat, Inc., for damages. Riggs consulted with his attorney, Ernest Alexas, and decided to enter into a Settlement Agreement with Kincaid on or about June 29, 1984. Under the Settlement Agreement, Riggs would pay Kincaid $10,000, and Kincaid would "execute all necessary stock transfers, releases and other documents necessary" to "assign [to Riggs] all of his right, title and interest" in the three corporations through which Riggs and Kincaid operated licensed businesses, including Respondent. The documents were to be held in escrow by Alexas pending payment of $106,000 to Kincaid. The agreement then provided that the documents in escrow would be "delivered" to Riggs or the three corporations. The agreement also provided that Kincaid would dismiss his damage suits against Riggs, Respondent and Boca Banana Boat, Inc., and that Kincaid would resign "from all offices and positions as director held by him" in the three corporations, including Respondent. By September 18, 1984, the parties had performed all of the obligations under the June 29, 1984, Settlement Agreement. Kincaid had dismissed the damage suits. Boca Banana Boat, Inc., had pledged assets to secure a loan of $106,000, which was paid to Kincaid and Wagner. However, acting upon the advice of his attorney, Alexas, Riggs decided to instruct Alexas to continue to hold the documents in escrow for the time being. No decision was made whether Kincaid's stock should be placed in Riggs' name individually, placed in Respondent's name as treasury stock, placed partially in the name of Boca Banana Boat, Inc., or retired. In any case, Alexas advised Riggs that no violation of Section 561.32(4), Florida Statutes (1983), would occur unless the stock were transferred within the statutory three-year time period which was due to expire in approximately August 1986, to someone other than Riggs or to a corporation or partnership in which someone other than Riggs held an interest. Riggs himself was unclear exactly what Kincaid's relationship to Respondent was after September 18, 1984. Riggs' purpose in settling with Kincaid was to eliminate any and all control Kincaid might have over Respondent and the other corporations involved in the settlement. At the same time, Riggs thought Kincaid still should be obligated personally for his share of the debts of the corporations. Riggs hoped that, by leaving the documents in escrow and by not changing officers and directors on the corporate books, this would be accomplished. In November 1984, Riggs began the process of applying to have Respondent's license taken out of escrow and issued to a location at 865 San Carlos Boulevard, Ft. Myers Beach. On the application which Riggs signed, Riggs was listed as fifty percent stock owner and president. James G. Kincaid still was listed as fifty percent stock owner and secretary/treasurer. The Division took the license out of escrow, placed it at the new address and changed it to a Series 3-PS license. However, the Division did not prove that Riggs intended to mislead personnel of the Division in the performance of their official duty by referencing Kincaid on the application. First, the evidence was that Riggs was following the advice of his lawyer, Alexas, which he trusted and believed, that the elimination of Kincaid did not violate Section 561.32(4), and Riggs did not think there was any reason to mislead the Division by not disclosing the Settlement Agreement. Second, the evidence was that Division personnel helped Riggs' wife complete the application using information on prior applications, including Kincaid's interest. Finally, the evidence was that Riggs himself did not really know or understand Kincaid's precise legal status in relation to Respondent as of November 30, 1984.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a Final Order dismissing the Notice to Show Cause against Respondent, Ft. Myers Banana Boat, Inc., d/b/a Banana Boat, in this case. RECOMMENDED this 20th day of January 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of January 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2307 To comply with Section 120.59(2), Florida Statutes (1985), rulings are made on the parties proposed findings of fact. Petitioner's Proposed Findings Of Fact. 1-10. Accepted and incorporated to the extent not subordinate or unnecessary. But as to the second paragraph of proposed finding 4, only the date the application was filled out was in error in all likelihood; the substance and rest of Mrs. Riggs' testimony is accepted as true. Respondent's Proposed Findings Of Fact. 1-7. Accepted and incorporated to the extent not subordinate or unnecessary, except that the first two-and-one-half lines of proposed finding 4, including the date "October of 1984," are rejected as contrary to the greater weight of the evidence and facts found. Subordinate. Rejected as contrary to the greater weight of the evidence and facts found. Accepted and incorporated to the extent not subordinate or unnecessary except the date probably was November 29, 1984. First two sentences rejected as contrary to the greater weight of the evidence and facts found. Sarnonski filled out part of the application and advised Mrs. Riggs how to fill out the rest, including the references to Kincaid, by reference to information in the prior application. Third sentence accepted but subordinate and unnecessary. 12.-14. Subordinate and unnecessary. 15. Accepted and incorporated. COPIES FURNISHED: Louisa E. Hargrett, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Leslie T. Ahrenholz, Esquire Post Office Box 2656 Ft. Myers Beach, Florida 33931 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Bell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 =================================================================
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
