Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, R. Jane Frazier, has filed a claim against the bond in the amount of $813.00 alleging that Passport failed to perform on certain contracted services. On June 4, 1990, petitioner purchased a travel certificate from Jet Set Travel, a Maryland telemarketeer authorized to sell travel certificates on behalf of Passport. The certificate entitled the holder to fourteen nights' accommodations in Hawaii plus roundtrip airfare for two persons, with all travel arrangements to be made by Passport. The certificate carried the name, address and logo of Passport. During petitioner's dealings with Passport's agent, it was represented to her that for $89.00 per night, she would receive a two bedroom, oceanfront condominium. This constituted a misrepresentation on the part of the agent since the rooms were actually more expensive. Relying on that representation, petitioner authorized a $328.00 charge on her credit card payable to Jet Set Travel to be used as a credit on services purchased in Hawaii. She also paid a $50.00 refundable deposit to Passport. In August 1990, petitioner contacted Passport regarding travel dates and was told the charge on her room would be $124.00 per night, and not $89.00 per night as promised by Jet Set Travel. In charging this amount, Passport relied upon its brochure which priced the accommodations in the range of $89.00 to $124.00 per night, with the highest price for the type of room selected by petitioner. Fearing that she would lose her $328.00 fee and $50.00 deposit if she did not pay the higher amount, petitioner reluctantly agreed to send a cashier's check in the amount of $1,406.00 to Passport, which represented fourteen nights' lodging at $124.00 per night. Finally, before she departed on the trip, petitioner was required to pay another $25.00 miscellaneous fee to Passport, the basis for which was never explained. When petitioner arrived in Hawaii on October 11, 1990, she discovered that her assigned accommodations for the first week at the Kona Reef were unavailable because Passport had failed to make a reservation. Accordingly, she was forced to purchase five nights accommodations at the Kona Reef for $524.02 plus two nights at another facility for $248.00. The accommodations for the second week were satisfactory. After petitioner brought this matter to the attention of Passport, she acknowledged that she received a refund check for the first seven nights' stay, although she says she can't remember if it was for all or part of her out-of- pocket costs. Passport's contention that its books reflect an entry that she was paid for the entire amount was not contradicted although neither party had a cancelled check to verify the actual amount of the payment. Passport's testimony is accepted as being the more credible on this issue. Because petitioner relied on a misrepresentation by Passport's agent as to the type and price of accommodations being offered, she is entitled to be reimbursed her $50.00 refundable deposit (which was never returned), the $25.00 miscellaneous fee paid on September 26, 1990, for which no justification was shown, and the difference between the originally agreed on price ($89.00 per night) and the actual price ($124.00) for the last seven nights accommodations, or $245.00. Accordingly, she is entitled to be paid $320.00 from the bond.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and he be paid $320.00 from the bond. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1994. COPIES FURNISHED: R. Jane Frazier 3070 Meadow Lane Mobile, Alabama 36618-4634 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact Petitioner Castelli originally applied for licensure as a physician in the state of Florida by application signed, notarized, and dated July of 1985. In conjunction with his application for licensure, Petitioner Castelli submitted a FLEX application that was signed and dated July 27, 1985. The 1985 application was accompanied by several documents, including Castelli's "Titulo" signed by him, dated September 15, 1972, and notarized by Norma Perez as a true and correct copy of the original. Petitioner Castelli was permitted by the Board of Medicine to take the December, 1985, FLEX, which Castelli did take and fail. By letter signed and dated August 30, 1986, Petitioner Castelli requested that he be allowed to re-take the FLEX examination in December of 1986. A notice dated October 15, 1986, was sent by the Board to the address provided by Castelli informing him that, among other things, he was required to complete a new application because his previous application was over one year old. Petitioner Castelli did not respond to that notification. On November 17, 1986, Petitioner Granado-Villar telephoned Respondent's employee Chandra Prine to inquire as to the status of her pending application to take the FLEX examination on December 5, 1986. Petitioner Granado-Villar was advised by Prine that her application was in order and that she should be receiving her admission card for the examination. Granado-Villar then asked Prine the status of the application of Petitioner Castelli. Prine told Granado- Villar that Castelli's application was incomplete because updated pages 2-5 had never been received and because no current ECFMG certificate was in his file. Prine further advised Granado-Villar that the deadline for applications for the December 5, 1986 FLEX examination had passed. In response to Granado-Villar's inquiries as to what could be done to help Castelli, Prine advised her that if his application file could be completed by 5:00 p.m. on November 18, 1986, Prine would discuss the matter with her supervisor and attempt to place Castelli's application on the agenda for the November 22, 1986 meeting of the Board of Medicine. Granado-Villar advised Prine that Castelli was a resident of Spain and that she would attempt to get an updated application form to Castelli by overnight mail. Prine told Granado-Villar to include copies of the receipts for overnight mail with Castelli's updated application. Petitioner Granado-Villar called Petitioner Castelli in Spain, and they decided to send the application to Castelli by commercial airlines in hopes of completing the round-trip in time to file it in the Board's office by 5:00 p.m. on November 18, 1986. During that conversation Castelli gave Granado-Villar the information she requested so that she could complete the updated application form for him. Granado-Villar typed some of the information on a photocopy of an application and subsequently filled in another portion by hand. Castelli advised Granado-Villar to write the name of Monserrat Compano, a former- stewardess for Iberia Airlines on the outside of the envelope so that the envelope might be accorded special treatment. Upon contacting Iberia Airlines, Granado-Villar discovered that there were no flights from Miami to Madrid on November 17 and that the only option was to utilize an Eastern Airlines flight from Miami to New York and then a connecting Iberia flight from New York to Madrid. Granado-Villar placed the updated application in a manila envelope bearing only the names of Monserrat Compano and Petitioner Castelli on the outside. She took the envelope to Carmen Rojas, an employee of Eastern Airlines and a friend of hers. She explained that the envelope must be placed on the Eastern flight leaving for New York at 1:00 p.m. on November 17 so that it could subsequently be placed on the Iberia flight from New York to Madrid. Rojas took the envelope to the flight crew for the Eastern flight to New York and gave it to one of the stewardesses, telling her to take the envelope and deliver it to the Iberia ticket counter at John F. Kennedy Airport in New York. Rojas gave the stewardess no instructions other than to simply leave the envelope at the Iberia ticket counter in New York. No arrangements were made by Rojas, Granado-Villar, or Castelli for getting the envelope from the Iberia ticket counter in New York to the Iberia flight to Madrid. During the morning of November 18 Petitioner Granado-Villar arranged for a delivery service to pick up an envelope from her at the hospital where she is employed and deliver it to Respondent in Tallahassee with specific directions that the envelope must be on the Piedmont Airlines flight leaving Miami for Tallahassee at 5:00 p.m. on November 18, 1986. Also on the morning of November 18 Petitioner Granado-Villar made arrangements with Erma Shockley, an employee at Miami Children's Hospital and a notary public, for Shockley to notarize Castelli's signature on his application later that day. On November 18, 1986, Petitioner Granado-Villar took to Shockley a completed application form. She told Shockley that the signature on the form was that of Petitioner Castelli and that Castelli had signed the application form on the previous day at the airport in Madrid. Although both Shockley and Granado-Villar knew that Castelli was not present, Shockley notarized the signature on Castelli's application. Further, Shockley and Granado-Villar decided that Shockley would date her notarization as having been done on November 17 in order that the date of the notarization would be consistent with the date of the signature. After the document was notarized, Petitioner Granado-Villar went to the emergency room area to await the arrival of the courier that she had previously arranged. The courier arrived within 5 to 10 minutes thereafter. Edna Evenson, a courier for Crown Courier Services, Inc., picked up an envelope containing an application for Petitioner Castelli from Petitioner Granado-Villar at Miami Children's Hospital, 6125 Southwest 31st Street in Miami on November 18, 1986. She gave Petitioner Granado-Villar a receipt for that package. Evenson subsequently delivered it to Piedmont Airlines at Miami International Airport at approximately 3:49 on November 18, 1986, for transport on Piedmont flight number 814 from Miami to Tallahassee, departing at 5:00 p.m. Piedmont's airbill, which corroborates the testimony of Evenson and the records of Crown Courier Services, Inc., shows that Piedmont received the package from Evenson for shipment on flight 814 to Tallahassee at 3:47 p.m. on November 18, 1986. On November 19, 1986, at 9:00 a.m., C. Prine signed a Sonicair receipt for a package containing Castelli's 1986 licensure application. The Sonicair shipping form contained information including the shipper's name--'D Granado-Villar"; the recipient--"Department of Professional Regulation"; the date"11/18/86"; a job number/bill of lading number "A58408"; original airport code-- "MIA" and destination airport code "THL." The spaces provided for commercial value and declared value are blank, and other than the time of receipt written by C. Prine, there is no time indicated on the Sonicair shipping form. The signature and designation "#10" for the shipper's signature and pickup agent on the Sonicair air shipping form were written by Edna Evenson, the courier for Crown Courier Services, Inc. Accompanying the application from Petitioner Castelli was a hand written letter dated 11/18/86 from Petitioner Granado-Villar. Petitioner Castelli's application bears a signature which was notarized by Erma M. Shockley in Dade County, Florida, with a date of November 17, 1986. The notarization states that the document was subscribed and sworn to before Shockley on the date of the notarization. On November 20, 1986, Petitioner Castelli was notified that he was required to make a personal appearance before the Board at its November 22, 1986 meeting in Tampa. He failed to appear. Petitioner Granado-Villar was also notified on November 20, 1986, that she was required to make a personal appearance on November 22, 1986, and she did appear. At the proceeding on November 22 Dorothy Faircloth, Executive Director of the Board, specified the concerns of the Board's staff regarding Petitioner Castelli's application. The staff questioned whether the application had actually been received in Spain and completed by Castelli and returned to Granado-Villar for delivery in Tallahassee in such a short timespan. It also appeared that the signature of Castelli on the application did not match his signature on previous applications and documents. The staff further questioned how the application could have been notarized in Dade County, Florida, while Castelli was in Spain. Petitioner Granado-Villar testified under oath at that proceeding that the application did make the trip from Miami to New York to Madrid to Miami to Tallahassee and that the signature on the application was that of Castelli. She admitted completing part of his application and arranging for a notary public who was very familiar with Castelli to notarize his application in Miami after she received it from Castelli who remained in Spain. Although Granado-Villar testified before the Board that Shockley was "well acquainted" with Castelli, it was established at the final hearing in this cause that Shockley and Castelli knew each other only incidentally. Some months earlier, Shockley notarized a copy of a document belonging to Castelli to be a true copy of the original, and they once passed each other in the hall at Miami Children's Hospital. Shockley had never before notarized Castelli's signature. Petitioner Granado-Villar's testimony before the Board and testimony at the final hearing is corroborated by that of Petitioner Castelli at the final hearing. According to them, on November 17, 1986 Castelli drove from Seville, Spain, to Madrid, Spain, where he found the envelope containing his application waiting for him at the Iberia ticket counter in the Madrid airport. He signed the application, placed it back in the envelope, and gave it to a passenger on Iberia flight number 965. He instructed that passenger to give the envelope to a woman whom he described (Petitioner Granado-Villar). He advised the passenger that if the woman were not there to meet her when she "cleared customs," then the passenger was to take the envelope to the Iberia ticket counter in Miami International Airport. Castelli later telephoned Granado-Villar to inform her that the application would be on Iberia flight number 956 or 965 arriving in Miami at 4:00 p.m. Granado-Villar left the hospital to go to the airport at approximately 3:30 p.m. arriving there at approximately 4:00 p.m. She went to the Iberia ticket counter where she picked up the envelope which now bore her name. She drove back to Miami Children's Hospital, parked her car, and went directly to Shockley's office arriving there between 4:20 and 4:30 p.m. She had Castelli's signature notarized. She then went to the emergency room area and waited approximately 5 to 10 minutes for Evenson to arrive. Evenson arrived at the hospital at approximately 4:40 p.m., completed the necessary paperwork, and left. The testimony recited in this finding of fact is specifically rejected as being incredible. According to flight arrival information maintained by the United States Customs Service, Iberia flight number 965 had a "block time" in Miami of 4:05 p.m. on November 18, 1986. Block time signifies the actual time that an aircraft comes to a complete halt at its arrival gate, and that time is provided to the Customs Service by the airlines as required by the United States Government. Although Petitioners presented evidence that Iberia Airlines recorded in the form of a telex its "official" block time to have been 3:55 p.m., Iberia Airlines' "official" block time is specifically rejected in favor of the block time it gave to the United States Government on the general declarations form required by law to be filed by it. It normally takes from 15 to 30 minutes for a passenger arriving on an international flight to "clear" the customs area at Miami International Airport. That time frame is extended by whatever time it takes for a passenger to disembark from an aircraft the size of an international flight and is also extended if the passenger is not an American citizen and must also go through immigration clearance. No evidence was offered as to how long it took a passenger arriving at approximately 4:00 p.m. on November 18, 1986, to clear customs. Keeping in mind the fact that it took Granado-Villar one-half an hour to drive from the hospital to the airport, it is physically impossible for Granado-Villar's and Costelli's version of the movement of that envelope containing his application to be true. Except for the testimony of Granado- Villar and Costelli there is no evidence to show that the application ever reached Castelli in Spain. Carmen Rojas only sent it to the Iberia ticket counter at Kennedy Airport in New York. Even if the application reached Castelli, it is impossible that Granado-Villar retrieved the envelope containing the application from the Iberia Airlines ticket counter at Miami International Airport at the same time that the Iberia aircraft was arriving at the gate. There is no evidence that the unknown passenger was the first person off the aircraft, that she hastened to be the first in line at customs, that she was able to clear customs without going through the immigration check point in the minimum time of 15 minutes, or that she hastened to wherever the Iberia ticket counter might be in relationship to customs in order to have left the envelope in the custody of the persons at the Iberia ticket counter in order that Granado-Villar could retrieve that envelope and be back at Miami Children's Hospital and in Shockley's office by 4:20 or 4:30 p.m. Even if it could have happened as Granado-Villar testified, Evenson could not have picked up the package at 4:40 p.m. accomplishing the one-half hour drive to the airport in order to check in the package at Piedmont in time for that package to have been placed on an airplane which left at 5:00 p.m. The application which was delivered to Piedmont Airlines for transmittal to Tallahassee by Evenson prior to the arrival in Miami of Iberia flight number 965 was not the same application as the one Granado-Villar sent to Castelli in Spain for his signature. The application which the Board received contained information regarding Castelli's medical education and surgical residency that conflicted with the application submitted by Castelli in 1985 and was incorrect. Even Castelli's height was reported to be different on those applications. In addition to containing incorrect information, the application submitted on behalf of Castelli in November of 1986 did not contain his signature and was not properly notarized. Petitioner Granado-Villar submitted a fraudulently prepared application on behalf of Castelli and attempted to perpetuate the subterfuge by her testimony before the Board and by her testimony at the final hearing in this cause. Petitioner Castelli participated fully in the submittal of his fraudulently prepared application to the Board. Even if an application had reached him in Spain for his signature at the airport in Madrid as he testified, that application was not notarized and it contained incorrect information at the time that he signed it.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Final Orders be entered denying the applications of Petitioner Guiseppe Castelli and of Petitioner Deise C. Granado-Villar for licensure by examination as physicians in the state of Florida. DONE AND RECOMMENDED this 22nd 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 of Administrative Hearings this 22nd day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-1594 and 87-2194 Petitioners' proposed findings of fact numbered 1-3, 11, and 15 have been adopted either verbatim or in substance in this Recommended Order. Petitioners' proposed findings of fact numbered 4-8, 10, 12, 13, 24, and 25 have been rejected as not being supported by the weight of the credible evidence. Petitioners' proposed findings of fact numbered 9, 14, 16, 18, 23, and 26 have been rejected as being contrary to the weight of the credible evidence in this cause. Petitioners' proposed finding of fact numbered 17 has been adopted either verbatim or in substance in this Recommended Order except for the third sentence contained therein which is rejected as being contrary to the weight of the credible evidence in this cause. Petitioners' proposed findings of fact numbered 19, 20, and 28 have been rejected as being irrelevant to the issues under consideration herein. Petitioners' proposed findings of fact numbered 21 and 29 have been rejected as being subordinate. Petitioners' proposed findings of fact numbered 22 and 27 have been rejected as not constituting findings of fact but rather as being either argument of counsel or mere recitations of the testimony. Respondent's proposed findings of fact numbered 1-34 have been adopted either in substance or verbatim in this Recommended Order. COPIES FURNISHED: Dorothy Faircloth, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Deborah J. Miller, Esquire One Biscayne Tower, Suite 2400 Two South Biscayne Boulevard Miami, Florida 33131 Allen R. Grossman, Esquire Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32399-1050 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Dorothy L. Castellano, has filed a claim against the bond in the amount of $59.00 alleging that Passport failed to perform on certain contracted services. The facts giving rise to this controversy are not in dispute. In late 1989, petitioner received a promotion offer from Budget Rent A Car for a "free" one-day cruise for two persons from Fort Lauderdale to Freeport (Bahamas Islands) on Discovery Cruise Lines. The travel was to be arranged by Passport and required petitioner to pay Passport a $40.00 fee, plus $19.00 in port taxes, or a total of $59.00. She did so on March 6, 1989, as evidenced by a money order made payable to Passport International Express, a ficticious name then used by Passport. After it received the money, Passport issued two travel certificates to petitioner. On the face of each certificate was the notation "Not valid after 08/30/90." This meant that petitioner had to use the certificates no later than August 30, 1990. Even so, this gave petitioner more than a year in which to take the trip. Petitioner does not deny that she was aware of this restriction. According to Passport, the expiration date was controlled by Discovery Cruise Lines and thus it had no authority to extend the life of the certificates. No evidence was adduced regarding the refund policy of Passport. Petitioner eventually made reservations to use the certificates in July 1990. On June 6, 1990, she broke her ankle and was temporarily disabled. As a consequence, she could not travel before the certificates expired. Although petitioner contacted both Passport and Discovery Cruise Lines and requested either a refund of her money or an extension of time in which to use the certificates, her request was denied. Therefore, petitioner was unable to use the certificates. She then filed a claim with the Department seeking a refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be denied. DONE AND ENTERED this 28th day of November, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 1994. COPIES FURNISHED: Dorothy L. Castellano 3821 S. E. 44th Street Ocala, Florida 34480 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, FL 32399-0810
Findings Of Fact At all times pertinent to the issues herein the Respondent, Linda H. Abraham, was licensed by the State of Florida as a real estate broker under license number 0323486. During the months of February and March 1983 Martha L. Tew owned a parcel of waterfront property located in Panama City Beach which was identified as being for sale by a sign on the property reflecting her husband's real estate company. Her husband was Ronald Eugene Tew and Mrs. Tew also held a salesman's license. Mr. Tew was contacted by Gregory A. Peaden, a contractor and developer in the Panama City Beach area on several occasions prior to March 1983 with offers to purchase the Tew property. The contacts with Mr. Peaden subsequently culminated in a contract dated March 8, 1983, between Greg Peaden, Inc., and the Tews in the amount of, initially, $180,000.00. During the negotiations for the property, Mr. Peaden had introduced the Respondent to the Tews as his broker. When, at the time of Use contract, Mr. Peaden advised the Tews he wanted Respondent to get a commission for the sale, Mr. Tew refused to pay any commission indicating that Respondent had performed no service for him; that he, Tew, was a broker himself; and that he had no intention of paying any commission to the Respondent or to anyone, for that matter. After some further negotiation, a second contract was prepared and agreed upon wherein the contract price was raised to $189,000.00 and the Respondent's commission was to be paid with the additional money from Mr. Peaden. The contract in question executed by the parties on March 8, 1983, reflected that the sum of $5,000.00 deposit was paid to Linda Abraham, Inc., by check. Mr. Tew contends that at this point he was led to believe that Respondent had the $5,000.00 check and, he contends, he would not have signed the contract if he had known that the check had not been delivered and placed in Respondent's escrow account. The actual signing of the contract took place in Respondent's office, a mobile home which she shared with Mr. Peaden's business. This trailer home was described as having Mr. Peaden's office on one end, and Respondent's on the other, with the living-kitchen area in the middle used as a reception area for both businesses. Mr. Peaden contends that once the contract was signed by the Tews, he gave a check drawn on one of his business accounts, that of Peaden and Guerino, a property management company he owned, to his secretary, Judy White, to deposit in Respondent's escrow account and thereafter promptly forgot about the matter until the date scheduled for closing, two months in the future. Ms. white, on the other hand, contends that Mr. Peaden at no time gave her a check for $5,000.00 to deposit to Respondent's escrow account. It is her contention that when she received the contract after it was signed, she, on her own, inserted the receipt portion on the bottom of the second page and signed as having received it merely to complete the contract. At the time, she contends, she did not know if the deposit was received from Peaden or not. She has never signed a contract like this before without a deposit and cannot give any other reason why she did it on this occasion. She is certain, however, that at no time did Mr. Peaden ever give her a $5,000.00 check or tell her to draw one for his signature on March 8, 1983, or, for that matter, at any time thereafter. What is more, neither Mr. Peaden nor the Respondent, at any time after the signing of the contract and prior to her departure under less than friendly circumstances approximately a week or so later, ever asked her whether she had made the escrow deposit or discussed it with her at all. Ms. white contends that she left Mr. Peaden's employ because he expected her to perform certain functions she was unwilling to do. When she left his employ, she did not feel there was any unfinished business that needed her immediate attention. To the best of her recollection, there were no sales contracts or deposits left in or on her desk - only bills. According to Respondent, the $5,000.00 deposit by Mr. Peaden was to stay in her escrow account. She understood Mr. Peaden was going to arrange with the bank to borrow the entire cash payment called for under the contract, including the deposit, and when that was done, it was her intention to give him back his $5,000.00 check. Under these circumstances, the amount in escrow would never be paid to the sellers but would be returned to Mr. Peaden and the Tews would receive the entire cash amount called for by the contract from the proceeds of the bank loan. Respondent also indicated that this procedure had been followed at least once, in a prior transaction. Under the circumstances, it is clear that no deposit was ever received from Mr. Peaden nor was it placed in Respondent's escrow account. Therefore, the contract, dated on March 8, 1983, was false in that it represented a $5,000.00 deposit had been received. The check for $5,000.00 dated March 8, 1983, payable to Linda Abraham, Inc. and drawn by Mr. Peaden on the Peaden and Guerino account with the stub admitted to show the date of issuance, does not establish that it was written on March 8, 1983, as contended. This check, number 1349, comes after two other checks, 1347 and 1348, which bear dates of April 4 and September 7, 1983 respectively. Mr. Peaden's explanation that the checks were drafted out of sequence is non-persuasive. Of greater probative value is the fact that neither Mr. Peaden nor Respondent bothered to review their bank statements on a regular basis. The check in question was drawn on an account not related to the construction and development business of Greg Peaden, Inc. Further, examination of Respondent's escrow account reflects that there were approximately eleven transactions over a three year period even though, according to her, she handled numerous other closings as well as this. Her explanation is that in most cases the attorney handling the closing served as escrow agent even though she was the sales broker. Her explanation is not credible. This appears to be a classic situation of movement of accounts to satisfy a particular end. The contract called for closing of the sale to be held on or before May 8, 1983, in the office of Panama Title Company. May 8, 1983, fell on a Sunday. As a result, the closing would not have been held that day, but it was not held the following day, Monday, May 9, 1983 either. Mr. Peaden admits that he had not checked with Panama Title prior to May 9 to see if everything was prepared for the closing. Instead, he contacted the title company for the first time at approximately noon on May 9. Apparently he received disquieting information because he thereafter called his attorney, Mr. Hutto, and asked him to check with the title company to see if and when the closing would be held. Mr. Hutto's inquiry reflected that the title insurance binder was ready but the closing statement and the package were not because the title company required a copy of the contract. At this point Mr. Peaden immediately had a copy of the contract delivered to the title company but later that day was advised that the closing still could not be held because of the failure to provide a survey. Mr. Hutto indicates that the reason given was that the release clauses called for in the contract required the survey to be furnished though he did not necessarily agree with that. In any event, closing was not held on May 9. At this time both Mr. Peaden and Respondent allegedly became concerned about the $5,000.00 deposit. Admittedly, neither had concerned themselves with it from the time of the signing of the contract. At this point, Mr. Peaden indicates that he examined his bank records which failed to show the deposit being made and his subsequent search of Ms. White's desk finally revealed the check, undeposited, still there. On May 11, 1983, a $5,000.00 deposit was made to the account on which the deposit check was drawn and on the same day, May 11, 1983 check number 1349, in the amount of $5,000.00 was presented against the account. When on May 10, 1983, Mr. Peaden and Respondent went to Mr. Hutto's office the primary reason for the visit was because Mr. Peaden had heard that the Tews were planning to sell the property in question to someone else at a price much higher than that agreed upon for the sale to Peaden. At this point Mr. Hutto indicated that if Peaden so desired, Hutto could "fix up the contract to jam up the works" until he could do something about it. His examination of the contract revealed that it was not recorded or acknowledged and under the laws of Florida, acknowledgment is required in order for a contract to be recorded. Hutto asked the Respondent if she had seen the parties sign the contract and when she said that she had, he had his secretary prepare a jurat. Unfortunately, his secretary prepared an affidavit type notary jurat rather than an acknowledgment and Hutto quickly admits that he did not look at it when it was given back to him. He says that if he had, he would have had it changed but in any event, without looking at what was given him, he gave it to the Respondent with the implication, at least, that she should notarize it and have the contract recorded. According to Hutto, Peaden, and the Respondent, the sole purpose for notarization and recordation was to preserve the status quo to protect Mr. Peaden's interest in the property so that the matter could be adjudicated in a lawsuit which was soon to be filed. Respondent contends she never intended any misconduct throughout this transaction nor did she do any of the things alleged in the Administrative Complaint. She contends she never saw the check which Mr. Peaden allegedly gave to his secretary for deposit to her escrow account. She merely assumed that it was given and never checked to insure that it had been placed in her account. She does not know why Mr. Peaden did not give her the check. When she took the contract to the Tews, she was operating under the assumption that the check had been received but did not verify this to insure that it had. She contends that since she represented the buyer, her duties were limited to insuring that he performed and this made it simple. She did not check on him because she had had so much experience with him, him being by far her largest account, if he said something, she believed him and when the contract was executed, she merely instructed the secretary, Judy White, to make the file and did not check on it again. As to the recordation and the notarization after the fact, she acted upon the advice of counsel, she states, and did what was suggested to her by Mr. Hutto. It should be noted, however, that Mr. Hutto did not represent her but instead represented Mr. Peaden and while because of her long-standing relationship with him and Mr. Hutto, she may have felt safe in relying on his advice, the fact remains that Hutto was not her attorney.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a registered real estate broker in Florida be suspended for six months and that she pay an administrative fine of $2,000.00. RECOMMENDED this 6th day of June, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1985. COPIES FURNISHED: Arthur Shell, Esquire Department of Professional Regulation Division of Real Estate 400 W. Robinson Street Orlando, Florida 32801 John D. O'Brien, Esquire P. O. Box 1218 Panama City, Florida 32402 Harold Huff Executive Director Division of Real Estate P. O. Box 1900 Orlando, Florida Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
The Issue The issues are whether, pursuant to section 559.929(3), Florida Statutes (2019), Petitioner has been injured by the fraud, misrepresentation, breach of contract, financial failure, or any other violation of chapter 559, part XI, by Respondent Travbuzz, Inc. (Respondent), for prearranged travel services and, if so, the extent to which Respondent is indebted to Petitioner on account of the injury.
Findings Of Fact Respondent provides prearranged travel services for individuals or groups. Having relocated from New Jersey to Miami, Florida, evidently in 2018, Respondent has been registered at all material times with the Department as a "seller of travel" within the meaning of the Act and holds registration number ST-41461. With Respondent as the principal, the Surety issued a Sellers of Travel Surety Bond bearing bond number 10076529 in the amount of $25,000, effective from June 22, 2018, until duly cancelled (Bond). On November 12, 2019, Petitioner, a resident of San Diego, California, purchased from Respondent one ticket for himself and one ticket for his daughter on the Palace on Wheels: A Week in Wonderland Tour (POWAWIWT) with a departure date of April 1, 2020. Earnestly described by Respondent's principal as a "cruise ship on wheels," the POWAWIWT provides one week's transportation, accommodations, and meals for travelers seeking to visit several of India's cultural and historical landmarks without the inconvenience of changing hotels, finding restaurants, arranging intercity transportation, or, it seems, obtaining refunds for trips that never take place. The purchase price for two POWAWIWT tickets was $8600.40. Additionally, Petitioner purchased from Respondent a guided side trip at one location for $75. At the time of the purchase of the two POWAWIWT tickets, Respondent charged Petitioner's credit card for the required downpayment of $1911.20 for both tickets. By personal check dated January 6, 2020, Petitioner timely paid the balance due for both tickets of $6689.20. By personal check dated February 19, 2020, Petitioner paid the $75 charge for the side trip. The credit card issuer duly debited Petitioner's account and credited Respondent's account for the charged amount, and Respondent obtained the funds represented by both checks. Petitioner later disputed the credit card charges, and the credit card company debited the $1911.20 amount in dispute from Respondent's account. Although Petitioner claimed that his account had not been credited for this amount, as of the evening prior to the hearing, Respondent's credit for these charges had not been restored, so the $1911.20 still seems to be in the possession of the credit card issuer. Despite availing himself of the remedy available under the Act, Petitioner has not authorized the credit card issuer to restore to Respondent's account the credit for the $1911.20. This case is a byproduct of the emerging Covid-19 pandemic, which, as discussed below, caused RTDC to cancel Petitioner's April 1 POWAWIWT. According to Respondent, RTDC has refused to refund Petitioner's payment of $8600.40 gross or about $8000 after deducting Respondent's 7% commission.1 Although Respondent's principal deflects the blame to RTDC for its no-refund policy and to Petitioner for supposedly waffling on the relief that he sought for the cancelled trip, Respondent quietly has declined to refund its commission of approximately $600, as well as the additional $75 payment, although the failure to refund the $75 may be explained by Petitioner's failure to address this negligible amount until he prepared the Prehearing Statement in this case. 1 Respondent's principal testified that Respondent discounted the price of the April 1 POWAWIWT by reducing its standard 17% commission, which would approximate $1460, to 7%, for a 10% discount, or about $860, leaving a net commission of about $600. Respondent's factual defenses to Petitioner's refund claim include the several defenses set forth above and a new defense asserted for the first time at the hearing: Petitioner cancelled his POWAWIWT before RTDC cancelled his POWAWIWT, so Petitioner was never entitled to a refund under the terms of the Contract. This defense oddly finds more support in Petitioner's allegation that he demanded a refund before RTDC cancelled the April 1 POWAWIWT than in Respondent's allegation that Petitioner did not demand a refund until the March 13 email, in which he reported that RTDC had cancelled the April 1 POWAWIWT.2 Regardless, this new defense is no more supported by the facts than Respondent's previously stated defenses. Respondent's who-cancelled-first defense is based on emails and telephone calls. Petitioner's emails portray his consistent efforts to obtain a refund for the trip, but only after RTDC had cancelled the April 1 POWAWIWT. The lone email of Respondent's principal serves to reveal Respondent's inability to respond meaningfully to Petitioner's efforts to protect his travel purchase and raises the possibility of bad faith on the part of Respondent's principal. On March 9, Petitioner emailed Respondent's principal a Times of India news article that reported that RTDC had cancelled the March POWAWIWTs, but not the April 1 POWAWIWT. This email does not seek to cancel the April 1 POWAWIWT, but expresses concern that RTDC will cancel the trip. On March 13, Petitioner emailed Respondent's principal a Times of India news article that reported that RTDC had cancelled the remaining POWAWIWTs through April. This email complains that RTDC had not 2 This oddity is unsurprising given the patter of each witness's testimony. Respondent's principal peppered his testimony with false apologies while, in a reassuring tone, he gently deferred and deflected blame and patiently, but mistakenly, insisted that the Contract did not require him to refund monies paid for a train trip that never took place. Petitioner frenetically rebutted each factual defense while somehow missing the salient points that he had paid for a POWAWIWT that never took place, Respondent refused to refund Petitioner's payment, and the Contract calls for a refund. Although a retired appellate attorney for the state of California, Petitioner seems to have grounded his early demands for a refund on natural law, because he appears not to have discovered one of the crucial contractual provisions, as discussed below, until he prepared the Prehearing Statement responded to Petitioner's requests for information, requests advice as to his available options, and asks for some assurance that Petitioner would not lose his payments of $8600 for the train tour plus an unspecified amount "for post trip activities" that are also unspecified. On March 15, Petitioner emailed Respondent's principal a news article in The Hindu that reported that another operator of train tours in India was paying refunds for cancelled trips and all tourist visas into India had been cancelled through April 15. This email implores Respondent to do the right thing and immediately refund the money paid for the cancelled trip. A few hours later, Petitioner emailed Respondent's principal an India West news article that reported that India was now in a complete lockdown and the Indian government had cancelled all nondiplomatic visas. This email asks Respondent's principal to keep Petitioner informed on what RTDC was going to do and expresses hope that RTDC issues refunds. On March 19, Respondent's principal emailed Petitioner that "we are reaching some agreement with our ground operator for the train and this is what is being finalized." The statement clearly discloses no agreement, but, at best, an expectation of an agreement. The email describes the expected agreement to allow Petitioner to take a POWAWIWT during the following season from September 2020 through April 2021, but requires Petitioner to select travel dates within six days and pay whatever fare is in effect at the time of the trip. Respondent's principal never explained why Petitioner had only six days to accept an "offer" that RTDC had not yet authorized its agent to make, might not authorize within the six-day deadline, and might not ever authorize. Respondent's demand for a near-immediate acceptance of a nonexistent offer of a trip at market price was unreasonable and suggests that Respondent's principal was merely trying to induce Petitioner to make an offer in the form of an acceptance, so the principal might have greater bargaining leverage with RTDC. On March 23, Petitioner emailed Respondent's principal, noting a series of unanswered emails and phone calls from Petitioner to the principal since the receipt of the March 19 "offer." Asking for clarification of the terms of the "offer," Petitioner's email concedes that it appears that Petitioner's money is lost and asks merely that Respondent show him the courtesy of calling him, confirming his fear, and providing a full explanation of what happened. Later that day, an employee of Respondent emailed Petitioner and informed him that the principal was suffering from a respiratory disorder and was unable to talk, so that future communications needed to be by email. Petitioner received no more emails from Respondent's principal, who, having returned to the United States after taking a POWAWIWT in early March, was later diagnosed with Covid. The telephone calls are undocumented. The credibility of Respondent's principal started to leave the tracks with the March 19 email of an illusory "offer" with an immediate deadline for acceptance. A month later, in responding to the disputed credit card charge, the credibility of Respondent's principal derailed completely, as he attempted to resecure the $1911.20 credit with material misrepresentations of what had taken place in an email dated April 21 to the credit card issuer. The email claims that Petitioner never cancelled the trip, so he was a "no-show"--a Kafkaesque claim that implies a duty to report for a trip that, undisclosed in the email, the sponsor had cancelled over two weeks prior to departure. The email states that, at the beginning of March, Petitioner called and said he did not feel comfortable taking the trip, but the trains were still running and "'Cancel for Fear'" was not an allowable reason for waiving a cancellation fee--perhaps true, but irrelevant. The email encloses a copy of the principal's March 19 email, states that Petitioner did not accept this "offer," and concludes that "[s]ince [Petitioner] did not cancel or inform us of the decision for travel before the travel date, the charge is valid as per the terms and conditions." The email cites a provision of the Contract addressing no-shows and, despite the absence of any mention of RTDC's cancellation of the trip due to the pandemic, adds a seemingly obscure reference to another provision of the Contract addressing acts of God, medical epidemics, quarantines, or other causes beyond Respondent's control for the cancellation of a trip. Notably, the email omits mention of the provisions of the Contract, described below, clearly calling for a refund. On balance, it is impossible to credit the testimony of Respondent's principal that, in telephone calls, Petitioner cancelled the trip before RTDC cancelled the trip or, more generally, that Petitioner could not settle on an acceptable remedy, and his indecisiveness prevented Respondent's principal from negotiating a settlement with RTDC--an assertion that, even if proved, would be irrelevant. Notwithstanding resolute attempts by Respondent's principal to misdirect attention from these unavoidable facts, Petitioner has paid for a train tour that never took place, RTDC cancelled the tour, and Petitioner never cancelled his tickets. The question is therefore whether, in its Contract, Respondent successfully transferred the risk of loss to Petitioner for a trip cancelled by the tour sponsor due to the pandemic. Analysis of this issue necessitates consideration of several provisions of the Contract that, despite its prolixity, is initially remarkable for two omissions: Respondent's Seller of Travel registration number3 and the name of RTDC as the sponsor of the POWAWIWT. Respondent claims that Petitioner caused his injury by declining to purchase travel insurance. The cover page of the Contract contains a section 3 Section 559.928(5) requires a seller of travel to include in each consumer contract the following: "[Name of seller of travel] is registered with the State of Florida as a Seller of Travel. Registration No. [X]." Even absent any mention of a statute, this disclosure provides a consumer with some means to learn of the somewhat obscure Act, the seller's statutory responsibilities, and the relief that may be available to a consumer for a seller's failure to discharge these responsibilities. Petitioner testified only that he somehow learned of the Act, but never said how. The record does not permit a finding that the omission of the statutory disclosure was purposeful, so as to conceal from the consumer the existence of the Act, or was a product of guileless ineptitude. called "Travel Insurance." This section provides an opportunity to purchase travel insurance from an entity "recommended by [Respondent]." The options are to check a box to purchase from Respondent's recommended entity or to check a box that states the traveler undertakes to obtain travel insurance independently, but this provision adds that, if travel insurance is not obtained, the consumer "absolve[s Respondent, t]he tour operator and the travel agent of all possible liabilities which may arise due to my failure to obtain adequate insurance coverage." Respondent offered no proof that its recommended travel insurance or other available travel insurance would pay for the cancellation of the April 1 POWAWIWT due to the pandemic, so Petitioner's choice not to purchase travel insurance is irrelevant. Additionally, the clear provisions of the Contract, discussed below, requiring a refund for a trip cancelled by the sponsor rebut Respondent's labored effort to apply the travel insurance provision to shift to the customer the risk of loss posed by a cancellation of the trip by the sponsor--a risk that might be better addressed by Respondent's purchase of commercial business interruption insurance. Respondent claims that the trip was cancelled by RTDC too close to the departure date to entitle Petitioner to any refund. The Contract contains a section called "Cancellation Fees." This section provides for increasing cancellation fees based on the proximity of the cancellation to the trip departure date. The Contract provides a 10% cancellation fee "if cancelled" more than 90 days prior to departure, 20% cancellation fee "if cancelled" between 89 and 35 days prior to departure, and 100% cancellation fee "if cancelled" within 34 days prior to departure. The Contract fails to specify if this provision applies to cancellations at the instance of the consumer or the trip sponsor, but the graduated fee reflects the greater value of a trip cancelled well in advance of the trip departure date, so that the trip can be resold. Obviously, a trip cancelled by a sponsor cannot be resold, so the cancellation fee provision applies only to a cancellation by a customer and does not shield Respondent from liability in this case. Lastly, Respondent relies on a section of the Contract called "Responsibility--Limitation of Liability." Provisions in this section warn that Respondent acts as an agent for a trip sponsor, such as the railroad, from which Respondent purchases the travel services. Although Respondent makes every effort to select the best providers of travel services, Respondent does not control their operations and thus CANNOT BE HELD LIABLE FOR ANY PERSONAL INJURY, PROPERTY DAMAGE OR OTHER CLAIM which may occur as a result of any and/or all of the following: the wrongful, negligent or arbitrary acts or omissions on the part of the independent supplier, agent, its employees or others who are not under the direct control or supervision of [Respondent]; [or] * * * (3) loss, injury or damage to person, property or otherwise, resulting directly or indirectly from any Acts of God, dangers incident to … medical epidemics, quarantines, … delays or cancellations or alterations in itinerary due to schedule changes, or from any causes beyond [Respondent's] control. … In case of overbooking, [Respondent] will only be liable for refund [sic] the charged amount to the guest. [Respondent] shall in no event be responsible or liable for any direct, indirect, consequential, incidental, special or punitive damages arising from your interaction with any retailer/vendor, and [Respondent] expressly disclaims any responsibility or liability for any resulting loss or damage. The "Responsibility--Limitation of Liability" provisions are general disclaimers of liability for various forms of damages arising out of the acts and omissions of third parties or forces outside the control of Respondent, such as the pandemic. These provisions represent a prudent attempt to avoid liability for damages, such as the lost opportunity to visit a gravely ill relative who has since died, that may amount to many multiples of the price paid for a trip. Complementing these general provisions limiting Respondent's liability, other provisions limit Respondent's liability to the payment of a refund of the purchase price of a trip cancelled by the sponsor. The section immediately following the "Responsibility--Limitation of Liability" section is the "Reservation of Rights" section, which provides: "The company [i.e., Respondent] reserves the right to cancel any tour without notice before the tour and refund the money in full and is not responsible for any direct or indirect damages to the guest due to such action." As noted above, the Contract omits any mention of Respondent's principal, so as to Respondent in the place of its undisclosed principal; thus, a provision referring to a cancellation of the tour by Respondent includes a cancellation of the tour by Respondent's principal. As cited by Petitioner in the Prehearing Statement, the other relevant provision is in the "Prices, Rates & Fares" section and states that, if a customer cancels, any refund to which the customer is entitled, under the above-cited cancellation fee provisions, will be dependent on then-current exchange rates, but "[i]n the event that a tour is canceled through no action of the Client, the Client will receive a full refund of US$."4 This provision entitles a consumer to: 1) a refund and 2) a refund in U.S. dollars, presumably unadjusted for currency fluctuations since the payment. At the hearing, Respondent's principal tried to construe the "US$" provision as a reference to the currency to which a consumer is entitled to be paid when a consumer cancels a trip under conditions in which the customer is entitled to a refund, but this construction ignores that the cited clause applies to 4 An identical "US$" provision is found at the end of the section called "A Note About Cancellation for All Tours/Reservations." cancellations occurring through no action of the consumer and imposes on Respondent the obligation to make a "full refund" in such cases.
Recommendation It is RECOMMENDED that the Department enter a final order directing Respondent to pay Petitioner the sum of $6689.20 within 30 days of the date of the order and, absent timely payment, directing the Surety to pay Petitioner the sum of $6689.20 from the Bond. 7 Perhaps the recommended and final orders in this case will persuade the credit card issuer to issue the credit for the $1911.20 to Petitioner, who is entitled to this disputed sum. But, if Respondent regains possession of this disputed sum and refuses to refund it to Petitioner, the Department may wish to consider suspending or revoking Respondent's certificate or referring the matter to the Miami-Dade County State Attorney's Office. See the preceding footnote. DONE AND ENTERED this 9th day of November, 2020, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2020. COPIES FURNISHED: Gil Gonzalez 8444 Mono Lake Drive San Diego, California 92119 (eServed) Benjamin C. Patton, Esquire McRae & Metcalf, P.A. 2612 Centennial Place Tallahassee, Florida 32308 (eServed) H. Richard Bisbee, Esquire H. Richard Bisbee, P.A. 1882 Capital Circle Northeast, Suite 206 Tallahassee, Florida 32308 (eServed) W. Alan Parkinson, Bureau Chief Department of Agriculture and Consumer Services Rhodes Building, R-3 2005 Apalachee Parkway Tallahassee, Florida 32399-6500 Tom A. Steckler, Director Division of Consumer Services Department of Agriculture and Consumer Services Mayo Building, Room 520 407 South Calhoun Street Tallahassee, Florida 32399-0800
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Drewes R. Rogge, has filed a claim against the bond in the amount of $1060.00 alleging that Passport failed to perform on certain contracted services. In July 1990, petitioner purchased a travel certificate from Raka Concepts, a telemarketeer authorized by Passport to sell travel certificates on its behalf. Raca Concepts filed for bankruptcy shortly after the transaction occurred, but a Passport representative assured petitioner that it would honor all travel promised by its agent. The certificate, which cost $399.00, entitled the holder and a companion to lodging for four nights in the Bahamas, two nights in Orlando, and two nights in Daytona Beach. Also, the certificate included transportation to and from the Bahamas by a cruise line. After paying for meals on the ship, taxes and additional charges for his children, petitioner's total cost was $634.00. In his claim, however, petitioner has requested a refund of $1,060.00, which includes the cost of upgrades to better accommodations, extra meals, a "VIP package," taxi fares, and a tip. The derivation of this amount is found in petitioner's exhibit 1 received in evidence. All transportion and lodging arrangements were booked by Passport. During the trip, petitioner experienced numerous difficulties, which are described in detail in exhibit 1. Among other problems, he says the cruise ship was overcrowded and dirty, and the original accommodations in Freeport did not meet his expectations (i. e., they were unsafe) causing him to upgrade to better accommodations at a price higher than was represented by Passport's agent. The total cost of the hotel upgrade was $164.85. Also, he was not notified that his scheduled transportation via cruise line from Freeport to Fort Lauderdale was cancelled at the last minute causing him to spend an extra night in the Bahamas. The cruise line, however, paid for his additional night's lodging. When the cruise line returned the following day it sailed to Miami rather than Fort Lauderdale. Petitioner was then taken by bus to Fort Lauderdale at no charge. Finally, before the trip began, petitioner discovered that he was booked into a hotel in Haines City rather than Orlando. After petitioner lodged a protest, Passport agreed to change his accommodations to Orlando. Mainly because of these problems, petitioner has asked for a refund of virtually all of the money spent on the package. Except for the mispresentation regarding the quality of the originally assigned accommodations in Freeport and the price of the upgraded accommodations, which cost petitioner an extra $164.85, there was no showing that Passport was guilty of misrepresentation in its handling of this transaction or otherwise failed to substantially perform the contracted services. Therefore, petitioner should be reimbursed $164.85.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in part and he be paid $164.85 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: Drewes R. Rogge 5804 Chesterfield Drive Chester, Virginia 23831 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact 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
