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, Patricia Ritter, has filed a claim against the bond for more than $299.00 alleging that Passport failed to perform on certain contracted services. On March 24, 1990, petitioner received an offer by telephone to purchase travel certificates entitling the holder to a five-day, four-night vacation package to the Bahamas plus two nights lodging in both Daytona Beach and Orlando, Florida. The offer was made by Uno Gold Card, a telemarketeer located in Atlanta, Georgia, and authorized to sell Passport's travel certificates. Before agreeing to purchase the certificates, petitioner was told that she could take the cruise at one time and use the Florida portion of her trip at a later date. She was never told that some dates were not available, or that other restrictions on travel might apply. Petitioner agreed to purchase the certificates and authorized a $299.00 charge on her credit card payable to Uno Gold Card. After receiving her travel certificates, which carried the name, address, and logo of Passport International Express, a ficticious name under which Passport was then operating, petitioner decided to use the Florida portion of her trip. She filled out one of the certificates requesting September 3 and 4, 1990, as the dates on which she wanted to begin her four-night stay in Florida. This was because she and her husband were traveling to Florida that week on their vacation and it was the only time period when she could use the certificate. She sent in a $50.00 deposit with her request. On June 28, 1990, respondent returned petitioner's $50.00 deposit and advised her that she "failed to leave the required amount of days between (her) requested travel dates," and thus her reservation could not be honored. She was told to resubmit her form within 21 days. Because petitioner was unable to travel on a different date to Florida, she could not use the certificate. When she contacted Passport for a refund of her money, Passport declined to refund her money and instead told her to contact Uno Gold Card. By now, however, Uno Gold Card was no longer in business. To date, petitioner has never received a refund of her money. Had petitioner been told to begin with that there were restrictions on how and when the certificates could be used, she would not have purchased them. But for this misrepresentation on the part of Passport's agent, the transaction would not have been consummated.
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 $299.00 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: Patricia Ritter 154 Midvale Road Wampum, PA 16157 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, FL 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, FL 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, FL 32399-0810
The Issue The issue is whether Respondent has committed a discriminatory act with respect to public accommodations in violation of Chapter 760, Florida Statutes, and if so, what remedy should be provided.
Findings Of Fact Respondent operates a fleet of cruise ships. The Triumph is one of the ships in its fleet. It sails from Miami, Florida. Among the cruises that Respondent offers on the Triumph is a seven-day cruise to the Western Caribbean, which stops in Grand Cayman, Cayman Islands, Ocho Rios, Jamaica, and Cozumel, Mexico. Ms. Raphael, a Black female, contracted to and took a seven-day Western Caribbean cruise on the Triumph from March 18- 25, 2006. It was Ms. Raphael's first cruise and she traveled by herself. The make up of the passengers and crew on the ship included all races: Asians, Caucasians, Indians, Hispanics, African Americans, etc. The Triumph left the Port of Miami on March 18th and was at sea in international waters until it returned to the Port of Miami on the 25th. On the 20th, the ship docked at Cozumel. On the 22nd, the ship was at Grand Cayman and on the 23rd it docked in Ocho Rios. The Triumph sailed under a foreign flag and is registered in Panama. When Ms. Raphael boarded the Triumph on March 18, 2006, her picture was taken with the rest of the passengers. Paris Dining Room: Upon boarding, Petitioner was given a card that assigned her to the Paris dining room, lower level, table 334, for 5:45 p.m. dining. During the first two days of the cruise, Petitioner did not go to her assigned table in the Paris dining room because she really didn't pay attention to where she was to go. On the third day of the cruise, Ms. Raphael received another dining room reservation card for the Triumph's Paris dining room, table 334 at 5:45 p.m. Petitioner's allegations in her petition relating to the incident in the Paris dining room were not substantiated by the evidence at hearing. Ms. Raphael presented inconsistent testimony and failed to prove any of the allegations. Pizza Incident: While in international waters, Petitioner went to the pizzeria on the Lido deck to get pizza because she was hungry. She stood in line with other passengers to get a slice of pizza. Ms. Raphael took the last piece of pizza. The slice was burnt. After Ms. Raphael got the last slice of pizza, the server left to go get another pizza pie. Ms. Raphael didn't wait for him to return but, instead just threw the burnt pizza away. She neither asked for a new slice of pizza nor addressed or complained about the burnt slice to anybody. Housekeeping Incident: Ms. Raphael could not get her television in her cabin to work properly. She complained to the purser's office two times to get it fixed. On March 20, 2006, staff reported to the purser's office that Petitioner was using the television incorrectly and it was fine. Petitioner reported to a Triumph employee that her room had not been cleaned for the first few days of the cruise. Housekeeping cleaned her room after she made her report. Petitioner talked to a staff member assigned to clean her room about his national origin and found out that the crew member was from India. So, she informed him that she was from Haiti. After the conversation, Ms. Raphael left her cabin. When she returned to her room it was clean and a towel in the shape of two little pigs and a sign that spelled out the word "Haiti" was left on her bed.2 Carnival's policy requires that stewards leave towel animals on all passengers' beds in their cabins nightly. The stateroom stewards are trained to make various towel animals for passenger cabins, including pigs. Carnival sells a book, Towel Creations with Freddy, which contains instructions for assembling animals. Over 800,000 copies of the book have been sold. Petitioner's Cruise Account Incident: Ms. Raphael went to the ship's casino to play Bingo. When she went to withdraw money to play, the employee she approached didn't provide her money because she did not have identification. So, Petitioner went back to her room to get her identification. After Petitioner returned to the casino, showed her identification, and requested $10.00, she was told there was no money in her account. This incident occurred on or about the fourth day of the cruise. Ms. Raphael witnessed passengers of other races in line getting money in the casino. After Petitioner was denied any withdrawal of money, she went to another Carnival Cruise Line cashier to withdraw money and was told that there was about 40 something dollars in her account. Petitioner did not go back to the casino to play bingo.3 Petitioner also got her account straight by having the cashier remove the service gratuity for meals off her account since she had not eaten in the dining room. At the end of the cruise, Carnival Cruise gave the Petitioner a check for $58.44. Although she complained at hearing that she made a $200.00 deposit and she was given credit for a $100.00 deposit, she accepted it without further complaint. Jewelry Store Incident: Petitioner went to the jewelry store on the cruise ship with fellow passenger Ms. Clayton and received what she considered was bad service. The retail jewelry store is operated by Starboard Cruise Services Limited (Starboard), an independent contractor of Carnival Cruise Line. The employees of the retail jewelry shop are hired, trained, supervised, and employed by Starboard. A male employee was assisting Petitioner and Ms. Clayton, answering their questions and showing them jewelry items, when three other people came up. The salesperson walked away from Petitioner to help the other customers before he finished assisting Ms. Raphael and Ms. Clayton. Petitioner addressed this treatment with another cashier, an employee of Starboard, who apologized to her and said that he would report the matter to the head office. Ms. Raphael never made any additional complaints about the salesperson's rudeness after informing the cashier. The jewelry store is only open while in international waters. Petitioner's visit to the jewelry store was made when the ship was at sea and in international waters. Cabin Search Incident: On March 24, 2006, Homeland Security Officer Mayer sent an e-mail to Triumph Chief Security Officer Paul requesting Ms. Raphael's "A-pass/on/off activity." After the request, Officer Paul provided Petitioner's A-pass activity to United States Customs and Boarder Protection (CBP), a part of the United States Department of Homeland Security. CBP requested an escort to search Petitioner's room when the Triumph docked. Respondent neither initiated the search, requested the search, nor participated in the search of Petitioner's cabin, other than to have a security officer escort CBP Officers Mayer and Maize to Ms. Raphael's cabin. Respondent has no knowledge as to why CBP chose Ms. Raphael's cabin to search. When the Triumph docked at the port in Miami on March 25, 2006, Homeland Security went to search Ms. Raphael's cabin. After they knocked on her cabin door, at 6:49 a.m. Petitioner took approximately three minutes to open the door. Emanuel Moise, a Carnival crew member, was found in the bathroom when CBP came to search Petitioner's room. Petitioner waited in the hall with a female security officer while CBP performed the search of her cabin with a K-9 detector dog.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's Public Accommodations Complaint of Discrimination. DONE AND ENTERED this 22nd day of January, 2008, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 22nd day of January, 2008.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Mitchell H. Abelman, has filed a claim against the bond for $389.00 alleging that Passport failed to perform on certain contracted services. Because the relevant events occurred some three or four years ago, many of the details concerning this transaction are somewhat vague. It is clear, however, that in response to a solicitation call, on August 15, 1990, petitioner purchased a travel certificate from Executive Travel, Inc., a Connecticut telemarketeer, authorized to sell travel certificates on behalf of Passport. The certificate entitled the holder to a five-day, four-night trip for two to the Bahamas, plus four nights' lodging in Daytona Beach and Orlando, Florida. For this, petitioner agreed to pay $389.00 through a charge to his credit card payable to the telemarketeer. The certificate carried the name, address, and logo of Passport. Prior to purchasing the certificate, petitioner was never told that in order to take the trip, he must pay additional charges. Had he known this, he would not have purchased the certificate. A travel certificate, video, and instructions were mailed by Passport to petitioner around August 22, 1990. The certificate clearly stated that it expired in one year, or on August 27, 1991. The instructions stated that in order to reserve travel dates, the traveler must return the certificate to Passport with the requested travel dates at least 75 days prior to the traveler's departure. Petitioner says he did not open up his mail from Passport for a considerable period of time and thus was initially unaware of these restrictions. On an undisclosed date, petitioner telephoned a representative of Passport and requested confirmation of certain travel dates. Although these dates were apparently more than a year after the certificate was issued, a Passport representative verbally approved the dates but told him that that in order to reserve those dates, he must send in an additional $90.00 for port charges, taxes, and meals on the ship. Petitioner refused to pay any more money since he had not been told this when he purchased the certificate. Therefore, he never returned the travel certificate to confirm his reservation. When petitioner telephoned a Passport representative a second time concerning the use of his certificate, he was told that his travel certificate had expired. He was offered the right to use the Florida portion of his trip but only if he paid a $50.00 deposit. Petitioner declined to do so and later filed this claim for a refund in the amount of $389.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and he be paid $389.00 from the bond. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1994. COPIES FURNISHED: Mitchell H. Abelman 507 Chestnut Avenue Los Angeles, California 90042 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, a licensed physician in the State of Florida, having been issued license number ME 0013518. The Respondent is, and has been at all times material to this proceeding, a board certified obstetrician/gynecologist. On or about July 24, 1991, Mrs. Y., a female passenger on the CARIBE I, a cruise ship owned by Commodore Cruise Line, Limited, complained to the ship's doctor that she had been sexually assaulted by one of the ship's employees while the ship was in a foreign port. News of Mrs. Y.'s complaint was promptly communicated to the cruise line's New York legal counsel. In anticipation of almost certain litigation, the New York legal counsel decided that it would be in the best interests of the cruise line to have Mrs. Y. examined by an independent physician at the earliest practicable time. Because the ship was bound for Miami, Florida, and because the cruise line's New York legal counsel did not know any gynecologists in the Miami area, the New York counsel contacted legal counsel in Miami and asked if the Miami counsel could arrange to have a gynecologist examine Mrs. Y. when the ship arrived at the Port of Miami. To that end, the Miami legal counsel contacted the Respondent and retained him as an independent expert on behalf of the cruise line. The Miami legal counsel for the cruise line specifically asked the Respondent to give an independent evaluation and to examine Mrs. Y. for communicable diseases and for evidence of sexual assault or rape. The cruise line advised the Respondent that the cruise line would pay him for conducting the examination and for his consultation. In due course the cruise line did pay the Respondent for his services related to Mrs. Y., which included such activities as interviewing and examining Mrs. Y., telephone conferences, conferences with attorneys, and preparation of a typed report regarding his examination of Mrs. Y. At approximately 8:00 a.m. on the morning of July 27, 1991, the Respondent, accompanied by his nurse, Mary Eany, met with Mrs. Y. in the infirmary aboard the CARIBE I at the Port of Miami. The Respondent introduced himself to Mrs. Y., described his status to her as being that of an independent medical expert, and explained to Mrs. Y. that he had been retained by the cruise line to examine her. Mrs. Y. consented to the examination by the Respondent. The Respondent took a history from Mrs. Y., conducted a physical examination of Mrs. Y., and collected vaginal swabs for the purpose of ascertaining whether she had been sexually assaulted or raped, and for DNA purposes. Gonorrhea and Chlamydia cultures were taken as well. The Respondent also drew blood samples from Mrs. Y. for several tests. During the entire examination the Respondent was assisted by his nurse, Mary Eany. Following the examination of Mrs. Y., the Respondent administered prophylactic antibiotics (Vibramycin and Ampicillin) to her, advised her to obtain follow-up care and testing from her private physician, and advised her that he would inform her by telephone of the test results. At the request of the cruise line, the Respondent took all of the evidence that had been gathered by the ship's doctor (items such as Mrs. Y.'s bed sheets, underwear, trousers, and a towel or wash cloth) and immediately placed it under lock and key in his office. The Respondent subsequently turned those items over to the FBI. In due course, Mrs. Y. retained a Miami law firm to represent her in a claim against the cruise line. After an initial exchange of letters /2 between Mrs. Y.'s Miami attorneys and the Respondent, by means of a letter dated September 26, 1991, Mrs. Y.'s Miami attorneys wrote to the Respondent seeking copies of records. In pertinent part, the September 26 letter read: Please submit us a complete photocopy of all office records you may have regarding the above-captioned individual. Please include personal informative records as well. The Respondent replied to the letter of September 26, 1991, by means of a letter dated November 1, 1991, addressed to Mrs. Y.'s Miami attorneys. The letter read as follows, in pertinent part: /3 Please find enclosed photostatic copies of the following: Results of a vaginal culture including blood group and type, results of HIV under Florida will not be forwarded to you, and a copy of my notes of July 27, 1991. * * * The treatment which I have rendered to Mrs. Y. is present in the report which I have given to Mr. James Canty. The Respondent's letter of November 1, 1991, to Mrs. Y.'s Miami attorneys was accompanied by a photocopy of the laboratory reports mentioned in the letter and a photocopy of the Respondent's handwritten notes written during the course of his interview and examination of Mrs. Y. /4 On November 1, 1991, the Respondent also sent a letter to a Mr. James Canty, who was then the Director of Operations of the cruise line. In pertinent part, the letter to Mr. Canty read: Please find enclosed my report which was performed on July 27, 1991 regarding [Mrs. Y.]. I have had no further contact with the F.B.I. nor have I heard from [Mrs. Y.]. I find it rather embarrassing to be put in an awkward situation by Mr. Martucci regarding this case. Enclosed with the November 1, 1991, letter to Mr. Canty was a four page typed report regarding the Respondent's examination of Mrs. Y. The typed report contains information that is not contained in the handwritten notes the Respondent prepared during the course of his interview and examination of Mrs. Y. on July 27, 1991. The typed report was prepared some time during the latter half of October of 1991. By letter dated December 12, 1991, Mrs. Y.'s Miami attorneys wrote to the Respondent with the following request: Pursuant to your letter of November 1, 1991, please provide my office with a copy of the report which you gave to Mr. James Canty concerning [Mrs. Y.]. You should know that Florida law requires that you send these to us. Please do so at once so that we can avoid litigation over these records. On January 21, 1992, Mrs. Y.'s New York attorneys filed a lawsuit on her behalf against Commodore Cruise Lines, Ltd., alleging that she had been sexually assaulted by an employee of the cruise line and seeking an award of damages against the cruise line. The lawsuit was filed in the United States District Court for the Southern District of New York. By letter dated February 27, 1992, Mrs. Y.'s Miami attorneys again wrote to the Respondent. The February 27 letter read as follows, in pertinent part: Since September 6, 1991 we have been attempting to obtain your complete records of my client, [Mrs. Y.], including the report which you provided to Mr. Canty. You have refused to return our calls or furnish us with your complete records. This is to remind you once again that Florida law requires that you furnish us with all medical information, pursuant to Medical Authorization properly executed by our client. This has been provided to you. We demand that you immediately furnish us with a copy of the report which you furnished to Mr. Canty together with copies of your notes dated July 27, 1991, which you also omitted. Your failure to comply with this request at once will leave us no choice but to commence legal action against you. Mrs. Y.'s Miami attorneys sent a copy of their letter of February 27, 1992, to the Department of Professional Regulation. Following the Respondent's receipt of the letter of February 27, he had a telephone conversation with one of Mrs. Y.'s Miami attorneys. During the telephone conversation the Respondent explained that he had consulted legal counsel, that legal counsel had advised him that the subject report constituted "work product," and that Mrs. Y. and her attorneys were not entitled to it except through "legal channels." During the same telephone conversation, one of Mrs. Y.'s Miami attorneys insisted that they were entitled to receive a copy of the report and that unless the Respondent furnished it to them, they would report the matter to the Department of Professional Regulation and would otherwise initiate litigation against him. The Respondent further replied to the letter of February 27, 1992, with a letter addressed to Mrs. Y.'s Miami attorneys under date of March 10, 1992. The Respondent's letter of March 10 read as follows, in pertinent part: I am corresponding to you concerning your letter dated February 27, 1992. As I related to you per our phone conversation of March 3, 1992, under the Florida law I have furnished you with the information you have requested. I have spoken to an attorney, Mr. David Horr, concerning the above and he has advised me that the written report which I have forwarded to Mr. Canty was not part of the patient's medical records. I am not interested in getting into any legal action which you may bring. I am sure that this report can be obtained from Commodore Cruise Lines if you desire. As I related to you in my letter of November 1, 1991, evidence and information which I had received was turned over to the F.B.I. on July 30, 1991. If you want to involve the Department of Professional Regulation that is your prerogative. However, I have had legal advice concerning this from Mr. Horr. At various times during the exchange of letters described above, the Respondent sought and received legal advice from the attorneys for the cruise line, including the Miami attorney who had contacted him to retain his services on behalf of the cruise line, and the New York attorney who was general counsel for the cruise line. The cruise line attorneys advised the Respondent that, for several different reasons, the Respondent was not required to provide a copy of the typed report to Mrs. Y.'s attorneys, and that he should not do so absent a valid subpoena or court order. The attorneys from whom the Respondent sought legal advice also told him that the judge presiding over the New York litigation had ruled that Mrs. Y. and her attorneys were not entitled to a copy of the disputed report until after the deposition of Mrs. Y. had been taken. The cruise line attorneys sought (successfully) to prevent Mrs. Y. from seeing a copy of the disputed report prior to her deposition because they believed, or hoped, that at her deposition she would make statements inconsistent with statements attributed to her in the Respondent's typed report. For obvious reasons, Mrs. Y.'s attorneys sought access to the typed report prior to her deposition and made strenuous efforts to that end. In March of 1992 the Respondent was served with a subpoena which directed him to appear for deposition and to bring with him the typed report. On April 3, 1992, the New York attorneys representing Mrs. Y. and the New York attorneys representing the cruise line participated in a conference held by the presiding judge at which time they argued their respective views on several discovery matters. At the conference the cruise line's attorneys agreed to produce a copy of the Respondent's typed report, but sought to postpone production of the report until after Mrs. Y. was deposed. The New York attorneys for Mrs. Y. agreed to the postponed production and the Respondent was excused from compliance with the subpoena that had been served on him. The presiding judge apparently approved that resolution of the matter, but no court order was ever entered with respect to postponement of production of the typed report. Some time during May of 1992, Mrs. Y.'s Miami attorneys mailed a complaint to the Department of Professional Regulation complaining that the Respondent had failed to provide complete medical records and reports when requested to do so by Mrs. Y.'s Miami attorneys. By letter dated May 26, 1992, the Department of Professional Regulation wrote to the Respondent advising him that the Department had received a complaint regarding his failure to furnish complete records regarding Mrs. Y., summarizing the requirements of Section 455.241(1), /5 Florida Statutes, and requesting that the Respondent send the requested records to Mrs. Y.'s Miami attorneys and provide the Department with a certificate that he had done so. Under date of June 4, 1992, the Respondent wrote a long letter to the Department of Professional Regulation explaining the circumstances with which he was faced. Pertinent portions of the Respondent's June 4 letter read as follows: [Mrs. Y.] was never a patient of mine. She was examined in the infirmary on board the cruise ship the Caribe II (sic) docked in the port of Miami. There are no office records or billing records for [Mrs. Y]. [Mrs. Y.] was examined on a foreign flagged cruise ship docked in the port of Miami, at the request of Commodore Cruise Lines and all bills were paid by Commodore Cruise Lines. Mr. Huggett's [Mrs. Y.'s Miami attorney] office has been trying repetitively to obtain a confidential report which I prepared for Commodore Cruise Lines. * * * According to the attorneys involved in this litigation, this report is considered a work product. A subpoena was served on me from the United States District Court, Southern District of Florida, for March 24, 1992. This was filed by an attorney in New York City, Mr. John P. James of Freidman, Biondi and James who represent [Mrs. Y.'s] suit against Commodore Cruise Lines, Ltd. Please find copy of the subpoena enclosed. The subpoena was negated by the courts of New York and my deposition subsequently was cancelled. I have been threatened by Mr. Huggett's office . . . [Mrs. Y.'s Miami attorneys] that if I did not comply and give "all information" I would be turned in to the Department of Professional Regulation and legal action would be instituted against me. . . . Mr. Huggett [Mrs. Y.'s Miami attorney] is using the Department of Professional Regulation in a roundabout way to try to obtain information which he has been denied through legal channels. This has been very intimidating to me. I have not violated any Florida law. As previously stated and upheld in a court of law, this is a work product. Any corrobative evidence which you may need can be obtained from the attorneys who are representing Commodore Cruise Lines. If you would like for me to contact these attorneys I would be more than willing to do so. * * * I am chagrined by the fact that Mr. Huggett's office [Mrs. Y.'s Miami attorneys] is allowed to intimidate and threaten me with the Department of Professional Regulation and litigation. * * * I welcome a telephone call and or letter in response to my letter of June 4, 1992. As I stated my office has no patient file on [Mrs. Y.]. I have a detailed report prepared for Commodore Cruise Lines which is considered a work product. It is unfortunate that Mr. Huggett [Mrs. Y.'s Miami attorney] has taken a threatening and subversive approach in trying to coerce me to release a "work product" for which he is not entitled. Along with his letter of June 4, 1994, the Respondent sent the Department of Professional Regulation copies of all of the correspondence back and forth between himself and Mrs. Y.'s Miami attorneys, as well as a copy of the subpoena mentioned in the letter. The deposition of Mrs. Y. was taken on January 29, 1993, in Miami, Florida, and by letter of March 2, 1993, the cruise line's New York attorney provided a copy of the Respondent's typed report to Mrs. Y.'s New York attorneys. Finally, on June 3, 1993, Mrs. Y.'s Miami attorneys wrote to the Department of Professional Regulation, as follows: . . . I am writing to advise you that Dr. Bennett [the Respondent] has now provided the records which were the subject matter of our initial letter of complaint. Accordingly, we have no further interest in pursuing this matter.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case dismissing the charges against the Respondent. /7 DONE AND ENTERED this 17th day of May, 1994, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 17thday of May, 1994.
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, William L. Taylor, has filed a claim against the bond in the amount of $605.95 alleging that Passport failed to perform on certain contracted services. At hearing, petitioner agreed that his claim should be reduced by $300.00 to take into account a settlement offer in that amount received from Passport. By way of background, Passport's assets and liabilities were assumed by Incentive Internationale Travel, Inc. (Incentive) in June 1991, and its status as a corporation was dissolved sometime in late 1991. However, Incentive continued to sell Passport's travel certificates after the merger of the two corporations, and all travel described in those certificates was protected by Passport's bond. In response to an offer in a local newspaper for a "bargain trip" to the Bahamas, on June 25, 1991, petitioner mailed a cashier's check in the amount of $605.95 payable to Incentive Internationale Travel, a telemarketeer in Tennessee using a name almost identical to Incentive and who was operating under the auspices of Open Door, Inc. (Open Door), another telemarketeer whose business location is unknown. Open Door had purchased approximately 1,000 travel certificates from Passport for resale to the public. Passport had agreed to honor and fulfill all travel certificates sold by Open Door or its agents. The travel certificates carried the name, address and logo of Passport. During his discussions with the telemarketeer, petitioner was never told that his requested travel dates might be unavailable. Had he been so advised, he would not have purchased the certificates. After receiving his travel certificates, on September 10, 1991, petitioner mailed them with a check in the amount of $270.00 to Passport. He requested that his travel begin on Monday, November 25, 1991. That date was critical because he wished to celebrate his 50th wedding anniversary in the Bahamas. On September 30, 1991, Passport advised petitioner by letter that it could not honor his request for travel on November 25, 1991, and offered alternative dates. He was also offered the option of receiving a refund of his money. Petitioner immediately requested a refund. When petitioner received a refund of only $270.00, and not the $605.95 previously paid to the telemarketeer, he filed a complaint with the Department. On November 20, 1991, Incentive advised petitioner that because Open Door had gone out of business, and Passport had never received the $605.95 paid to the telemarketeer, it had no obligation to make a refund of the remainder of his money. Sometime later, however, Incentive sent to petitioner a check in the amount of $300.00 in an effort to settle the case. Petitioner deposited the check but claims he is still owed $305.95.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in the amount of $305.95. 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: William L. Taylor 185 Tower Lakes Lake Wales, Florida 33853 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issue is whether the Department of State has sufficient grounds to take disciplinary action against the licenses issued to Mr. White pursuant to Chapter 493, Florida Statutes.
Findings Of Fact Mr. White held a Class "D" Security Officer License, number D90-03408, issued by the Department of State. Between November 27 and December 1, 1991, Mr. White was employed as a licensed security officer by the Quality Shawnee Hotel in Miami Beach, Florida. The hotel has also been known as the Colony Shawnee Miami Beach Resort and the Quality Resort. Thomas Sanon-Jules, Director of Security for the hotel, was Mr. White's supervisor, and personally trained him on the procedures for logging in and securing lost property found on the hotel property. Mr. Sanon-Jules developed a manual on the procedures for the disposition of lost property and reviewed it with Mr. White prior to November 28, 1991. Mr. White knew that lost property must be taken to the lost and found room and logged in prior to notifying the owner that it has been found. The item must be tagged with a number and, in the case of a wallet, placed in a safe deposit box. Under the hotel's internal policies, after logging an item in, the employee must notify the owner. If the owner wants it returned by mail, the employee must turn it over to the hotel's executive office during working hours to have it mailed. The employee should get a receipt from the executive office at that time. On November 27, 1991, John Herning, an American Airlines pilot, checked into the Quality Shawnee Hotel for one night. Before going out that evening, Mr. Herning placed his wallet behind a ceiling tile for safe keeping. He forgot the wallet when he left the next morning at approximately 5:00 a.m. On the evening of November 29, Mr. Herning called the hotel from his home in Fort Worth, Texas, stating where he had left the wallet, and asking to have the wallet retrieved. He talked to security officer Danny Jones, who indicated that the room was occupied and that Mr. Herning should call back at 7:00 a.m. the next day and ask for Mr. White. The next morning, Mr. Herning called and talked to Mr. White who said he would look for the wallet. He found it and told Mr. Herning that he would mail it that day, a Saturday. Mr. Herning told Mr. White that he could split the forty dollars in the wallet with security officer Danny Jones who had also assisted Mr. Herning. That evening, November 30, the J.C. Penney Department store called Mr. Herning in Fort Worth to tell him that a black male was attempting to use his credit card at their store at the Omni complex at 600 Biscayne Boulevard in downtown Miami. After talking to J.C. Penney, Mr. Herning notified the hotel of the call and also called his credit card companies to cancel his other credit card accounts. Mr. Herning did not authorize anyone to use his credit cards after leaving Miami on November 28, 1991. All of his credit cards were in the wallet when it was eventually returned. After Mr. Herning called the hotel to report the unauthorized use of his credit card, one of the security officers notified Mr. Sanon-Jules of the complaint. Mr. Sanon-Jules directed security officer Jones to look for the wallet at lost and found and in the safe deposit box. He was told that the wallet was not there. Later that night, Mr. Sanon-Jules had the night supervisor check lost and found for the wallet again, without result. The next morning, Mr. Sanon-Jules arrived at the hotel at 5:00 a.m. and waited for Mr. White to check in at 7:00 a.m. When Mr. White arrived, Mr. Sanon-Jules asked him about the wallet and Mr. White told him he had placed it in the safe deposit box. They went to the safe deposit box where Mr. White used his key to open it. There was no wallet in the box or in any of the drawers in the lost and found room. Mr. Sanon-Jules then asked Mr. White to empty his pockets, whereupon Mr. White produced Mr. Herning's wallet. At the time, Mr. White had no explanation for why he was carrying the wallet. Mr. Sanon-Jules checked the contents of the wallet and found a number of credit cards. Mr. Sanon-Jules subsequently went to the J.C. Penney department store at 600 Biscayne Boulevard and viewed a video tape recorded on the department store's security camera on November 30, 1991. The video showed Mr. White at the counter with two other adult males and a very young male child. (Tr. 20-21, 46-49; Pet. Ex. 3). One of the adult males in Mr. White's company attempted to use Mr. Herning's J.C. Penney credit card. The department store employee became suspicious when ringing up the sale. The tape shows that they left the store without completing the purchase. The young boy on the tape had accompanied Mr. White to work at the hotel on several occasions.
Recommendation It is RECOMMENDED that the Department revoke or deny renewal of all licenses held or applied for by Respondent pursuant to Section 493.6118(2), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of March 1993. WILLIAM R. DORSEY, JR. 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 31st day of March 1993. COPIES FURNISHED: Henri C. Cawthon, Esquire Assistant General Counsel Department of State/ Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Dewight Whiley White 2845 Northwest 163rd Street Opa Locka, Florida 33054 The Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL 02 Tallahassee, Florida 32399-0250
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.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Lee Ann Burgess was employed on March 17, 1975, as the Administrator of the Domestic Tourism Section, Division of Tourism, Department of Commerce. During her initial years of employment, Edward J. Trombetta was the Secretary of the DOC. He remained in that position from February of 1975 through December 31, 1977. The DOC then had several Divisions--one of which was the Division of Tourism--and these Divisions were broken down into Bureaus which were, in turn, composed of various Sections. Mr. Trombetta was of the opinion that only himself, his Assistant Secretary and his Division Directors were policy-makers within the DOC and that other employees simply implemented that policy. According to Mr. Trombetta, policy-making deals with personnel matters and implementation of the budget appropriated by the Legislature. Decision- making and policy-making emanated from the Secretary's office. While the Section heads or administrators might recommend ideas which would lead to "policy," they had no authority to "establish" the course of policy for their respective Divisions or Sections, according to Mr. Trombetta. The December, 1976 job description for the position of Administrator of the Domestic Tourism Section included, in part, the following duties and responsibilities: -- being a working supervisor over a majority of the promotional activities of the division -- creating, directing and supervising the approved promotional and selected advertising programs. "He must not only plan the programs, he must budget each one as well as the entire Domestic Development Section." -- recommending new markets and objectives to the Division Director and advising on all aspects of promotion, utilizing research statistical information to support such recommendations and advice -- directing a staff of promotion specialists -- maintaining a constant contact with the higher echelons of the Department of Commerce as well as other government agencies and the private sector of the travel industry -- handling personnel both within the confines of the office and those that are required to be at great distances from the office in following through on the projects -- working with publishers of travel oriented publications in creation of special sections and issues on facets of Florida tourism -- initiating and carrying through promotions with department stores, other chain stores, industry, common carriers, resort areas and many others -- recommending and coordinating publicity in conjunction with the other areas of the Department of Commerce -- representing the Division at conferences of national, regional travel organi- zations -- creating and implementing special events which insure Florida's continued growth as a site for major sports activities -- developing and recommending advertising programs which illuminate Florida's sports attractions -- preparing, editing and distributing publications on promotional tourism activities and information on sports activities and facilities within Florida. During petitioner's tenure as Administrator of the Domestic Tourism Section, she was directly responsible to her Bureau Chief, Ron Miller. At the beginning of each fiscal year, she submitted for Mr. Miller's approval a listing of appropriate functions and trade shows to attend for that year. She submitted a requested budget. On occasion, Mr. Miller would discuss with her which projects or functions would need to be rejected because of the availability of funding. All promotional functions and long-term commitments had to be approved by Bureau Chief Miller. Petitioner could not expend money without prior approval and did not feel that she had the authority to commit funds, resources or time without prior approval from her Bureau Chief. She perceived that her authority was limited to the implementation of preapproved promotional programs and functions. Once a program was approved, it was her responsibility to create a theme for that program. Her decision as to who should attend certain programs or promotions was occasionally overridden by her Bureau Chief. During petitioner's tenure, the Domestic Tourism Section was composed of an administrator, a secretary and two promotional specialists, and conducted approximately 19 to 21 promotions per year. The goal of the DOC's Division of Tourism is to increase the number of visitors and to create more trade in Florida on an annual basis. When Sidney Levin became the Secretary of the DOC in March of 1979, he contemplated a reorganization and expansion of the Division of Tourism. He anticipated that the Division would obtain a greatly increased staff and an accelerated program in the tourism sales department. It was Mr. Levin's concept that, the three section heads were, as known in the business world, "sales managers" and that an extensive marketing plan would be developed for the Division of Tourism. The three "sales managers or section heads were to be in the areas of domestic sales, international sales and convention sales. (Later, a Latin American sales section was created.) The persons occupying these positions were responsible for the management of those sections and were to be active in the creation of a marketing plan for the entire Division. The majority of the work accomplished on the marketing plan was to come from the various sections, and the section heads would have the responsibility for that function. The section heads were to generate the ideas for the overall plan, to determine what was possible and what was not possible and then to implement the plan once approved. During Secretary Levin's tenure with the DOC, the head of each Department was permitted to designate ten "policy-making" positions as exempt from the Career Service System subject to the approval of the Department of Administration. Section 110.205(2)(h), Florida Statutes (1979) (now Section 110.205(2)(i)). In accordance with his reorganization and expansion plans for the Division of Tourism, Secretary Levin, by letter dated December 12, 1979, requested approval from Secretary Nevin Smith. DOA, to exempt from the Career Service System the positions of Administrator of Tourism Development (position number 00063) and Administrator of International Tourism (position number 00067). Two other positions not relevant to the issues herein were also requested to be exempt as policy-making positions. By letter dated December 14, 1979, Secretary Smith informed Secretary Levin that the four requested positions had been exempt from the Career Service as policy-making positions. [The convention sales section of the Division of Tourism was not yet created. When that position was later created, a request for a similar Career Service exemption was granted.] At the time of the requested exemption of petitioner's position, the only written guideline in existence as to a "policy-making" position was contained in a memorandum dated July 1, 1974, to all Department heads from former DOA Secretary L. K. Ireland, Jr. That memorandum states that the DOA's Division of Personnel defined a policy-making position as one which sets a definite course of action for the unit for which the position is responsible (i.e., office, bureau, division, department) which is unit-wide in effect and will guide and determine present and future decisions of that unit measured in a time span of no less than six months. Although not contained in written form in December of 1979, it was also the DOA's policy to refuse to approve exemptions for positions which directly reported to or were responsible to a position occupied by a Career Service employee. The position formerly occupied by petitioner (position number 00063) is now entitled Administrator of Domestic Sales of the Division of Tourism. The present incumbent, Glenn Couvillon, reports to the Bureau Chief of Sales and Promotions who reports to the Director of the Division of Tourism. Mr. Couvillon was formerly a promotional specialist under the supervision of petitioner Burgess. His present duties include the preparation and submission of a marketing plan for his section to his Bureau Chief for approval and, after such approval, the implementation and staffing of different promotions in that plan. Other than the enlargement of the Domestic Sales Section, and the expansion of its budget and programs, Mr. Couvillon does not feel that the role of the section administrator has changed much since he assumed that position. The Domestic Sales Section now has a staff of eleven, including seven Development Representatives, and does approximately 54 promotions a year. The 1980 job description for position number 00063 does not differ in significant respect from the 1976 job description for that position. The differences are primarily in the usage of terminology, and not in the description of duties or responsibilities. According to Nevin Smith, the Secretary of DOA since July of 1979, the principal criteria for determining whether a position is "policy-making" has always been the same. That criteria is whether or not the position-holder plays a key advisory role to the Department head. An expert in the area of personnel management and administration, Lee Breyer, defines a "policy-maker" as "an individual who can, with a high degree of success, be able to influence the direction of a particular level of that organization." In February of 1981, the DOA promulgated a rule which defines the policies applicable to exemption of policy-making positions. Rule 22K-16.02, Florida Administrative Code, provides as follows: A position is policy-making if the incumbent's primary responsibility is the managing of a major function or the rendering of management advice to Senior Management level administrative authority. Such position can be established as policy-making only if located in the top managerial levels of a department, division, or bureau (or comparable level) and if it is typified by broad responsibility for policy implementation and extensive participation in the development of a department's goals.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered finding that position number 00063 is a policy-making position eligible for exemption from the Career Service System in accordance with Section 110.205(2)(i), Florida Statutes. Respectfully submitted and entered this 16th day of September, 1982, in Tallahassee, Florida. DIANE D. TREMOR 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 16th day of September, 1982. COPIES FURNISHED: Edward S. Jaffry, Esquire HORNE, REODES, JAFFRY, HORNE & CARROUTH Post Office Drawer 1140 Tallahassee, Florida 32302 Don W. Davis, Esquire Department of Commerce 510H Collins Building Tallahassee, Florida 32301 David V Kerns and Daniel C. Brown, General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Stuart Edgerly Secretary Department of Commerce 510C Collins Building Tallahassee, Florida 32301 Nevin G. Smith Secretary Department of Administration Room 435 Carlton Building Tallahassee, Florida 32301
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, Ananta M. Dasgupta, has filed a claim against the bond in the amount of $531.00 alleging that Passport failed to perform on certain contracted services. In response to a mail offer, in March 1987 petitioner purchased a travel certificate from VIP Vacations (VIP), a Miami Beach telemarketeer that was reselling travel certificates previously obtained from Passport. As such, VIP was acting as an agent on Passport's behalf. The holder of the certificate was entitled to a vacation package for two persons to Hawaii for a cost of $488.00. The travel certificate carried the name, address and logo of Passport and provided that all transportation authorized by the certificate would be fulfilled by Passport. The certificate expired in one year, or at the end of March 1988. After receiving the certificate, petitioner filled out the reservation request form with three requested travel dates (the fourth week of December 1987, 1988 or 1989) and returned it to VIP in November 1987 along with a $50.00 deposit. The form and deposit were forwarded by VIP to Passport. When petitioner could not secure travel on his first selected date, and he was told the certificate expired at the end of March 1988, he requested a refund of his money. Passport then agreed to extend the certificate to December 1988 but advised petitioner it could not confirm his reservations for the second requested travel date during the fourth week of December 1988. When petitioner continued to pursue his demand for a refund, Passport declined to refund anything other than the $50.00 deposit saying the trip was solicited by VIP, and not Passport, and in any event, the certificate had by then expired. Finding Passport's response to his demand for a refund to be unacceptable, petitioner filed an action against Passport in a Wisconsin circuit court, and on April 6, 1990, he obtained a judgment in the amount of $531.00. It is undisputed that the judgment resulted from a cause of action involving Passport's activities as a seller of travel. The judgment forms the basis for petitioner's claim.
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 $531.00 from the bond. DONE AND ENTERED this 9th 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 9th day of December, 1994. COPIES FURNISHED: Ananta M. Dasgupta 1009 East Hamilton Avenue Eau Claire, Wisconsin 54701 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 Peter P. Sedler, at all times material to the complaint, has been licensed as a real estate broker, holding license 0079017. He was last licensed as a broker c/o Marshall & Sedler, Inc., 7771 St. Andrews, Lake Worth, Florida 33467. Marshall & Sedler, Inc., at all times relevant to the complaint, had been registered as a Florida real estate broker, holding license 0250511, its last licensed address was 7771 St. Andrews, Lake Worth, Florida 33467. Peter P. Sedler was the qualifying broker and officer for Marshall & Sedler, Inc. On about July 3, 1987, Tom Teixeira was employed as a salesman by Cartier Realty, of 11852 42nd Road North, Royal Palm Beach, Florida. Cartier Realty had solicited, through a direct mailing, listings for property in the Royal Palm Beach area. Ms. Mary Myers, an older woman of about 70 years of age, responded to the advertisement, and gave Mr. Teixeira an open listing for real property which she owned. While Mr. Teixeira placed a Cartier Realty "For Sale" sign on the property, the sign was somehow removed shortly thereafter, and no party dealing with Ms. Myers during the months of July, August and September of 1987 would have been placed on notice that Cartier Realty had any listing on the property. Mr. Sedler had nothing to do with the disappearance of the sign. Ms. Myers had originally acquired the property from her daughter. Long before Ms. Myers gave a listing to Cartier Realty, William Kemp and his wife Gina DiPace Kemp had told Ms. Myers that they were interested in purchasing the property, which is adjacent to the home of Mr. and Mrs. Kemp. When Mr. and Mrs. Kemp first contacted Ms. Myers, she had wanted to keep the property, in the belief that she might eventually convey it back to her daughter. Mr. Teixeira brought to Ms. Myers an offer from David R. and Maureen C. Rose to purchase the land for $11,900. Ms. Myers did not accept that offer, but the Roses accepted Ms. Myers' counteroffer on July 24, 1987, to sell it for $12,300. The sale was contingent upon the buyers obtaining financing; they applied for a loan, and ordered both an appraisal and a survey. The closing was to be held by September 1, 1987. (Contract, paragraph VI.) The closing date passed, without the buyers obtaining the necessary financing, so the contract was no longer effective. On about September 8, 1987, Mr. Teixeira attempted to contact Ms. Myers. He had obtained no written extension of the contract but hoped the sale might yet close. Ms. Myers told Teixeira that she was still willing to sell the property to Mr. and Mrs. Rose. In the meantime, Mr. and Mrs. Kemp became aware that Ms. Myers wanted to sell the property, because they noticed Mr. and Mrs. Rose coming to look at the land, and had engaged them in conversation. Ms. Kemp then contacted Ms. Myers to remind her that they were still willing to purchase the property, and also to say that they would offer more than the current offer on the property. On about September 11, 1987, Ms. Kemp contacted Cartier Realty to say that she also wished to make an offer on the Myers' lot. For a reason which was never adequately explained at the hearing, Teixeira, who should have been working on behalf of the seller, refused to take the offer, even though it was for a higher price. After this rebuff by Teixeira, Ms. Kemp contacted Marshall & Sedler, Inc., in order to try to find a broker who would convey their offer to Ms. Myers and spoke with Patricia Marshall, Ms. Marshall referred her to her partner, Peter Sedler. The Kemps told Sedler that Ms. Myers had told them that she had received a $9,000 offer on the lot. Why Ms. Myers told the Kemps that the Rose offer was $9,000 is not clear, for the actual offer had been $12,300, but Sedler did not know this. There was no listing of the lot in the local board of realtors multiple listing service book, and Mr. Sedler found the address of Ms. Myers through the public records. Mr. Sedler knew from his conversations with Ms. Kemp that Cartier Realty had some involvement with an offer on the property. He called Cartier Realty and tried to speak with the broker handling the matter. He spoke with a man named Tom, who he thought was a brother of the owner of Cartier Realty, Pete Cartier. Mr. Sedler actually talked with Tom Teixeira. Sedler believed he was dealt with rudely by Teixeira, who had hung up on him. Sedler then called Pete Cartier directly to find out whether there was an outstanding contract on the property, and Cartier told Sedler that he would call Sedler back. When Cartier called Sedler, Cartier warned Sedler that he should stay out of the deal. Mr. Sedler became suspicious about Cartier Realty's failure to bring a higher offer to the attention of the seller, and on September 16, 1987, filed a complaint against Tom Cartier with the Lake Worth Board of Realtors. Mr. Sedler then traveled to Pompano Beach to meet with Ms. Myers at her home, and brought with him a contract for sale and purchase of the property, already signed by the Kemps and dated September 14, 1987. While at the door, Ms. Myers asked Peter Sedler if he was "Tom." Ms. Myers knew that she had been dealing with a "Tom" at Cartier Realty, but all her dealings were on the phone, and she did not know what Tom Teixeira looked like. Sedler replied "Yes, but you can call me Pete." Sedler merely intended the comment as humor. At that time Sedler gave Ms. Myers his pink business card and specifically identified himself as Pete Sedler of Marshall & Sedler, Inc. Mr. Sedler asked Ms. Myers if she had any paperwork, such as the prior contract for the sale of the lot which had expired on September 1, 1987, but she did not. While Sedler was with Ms. Myers, she agreed to sell the property to the Kemps for $12,500 and signed the Kemp contract. The Kemps had put the purchase price of $12,500 into the Marshall & Sedler escrow account. Three days later, on September 18, 1987, Mr. Sedler, in the company of his wife Bonnie, presented a post-dated check to Ms. Myers in the amount of $11,020, the net amount due to Ms. Myers for the lot, based on the purchase price of $12,500. When they met this second time he introduced himself again as Pete Sedler and offered Ms. Myers his card for a second time. The post-dated check was conditioned by an endorsement making it good upon a determination that the title to the lot was good. A quit claim deed to Mr. and Mrs. Kemp was executed by Ms. Myers and witnessed by Bonnie Sedler. The post-dated check was given to Ms. Myers because she was about to leave on vacation. The check was given as a sort of security for good title, in return for the quit claim deed which closed the transaction. Mr. Sedler had structured the transaction in this way because he was concerned that someone at Cartier Realty might also attempt to purchase the property from Ms. Myers on behalf of one of their clients. At that time, Mr. Sedler held the reasonable belief that no other party had a subsisting contract to purchase the property from Ms. Myers. Sedler had no reason to believe the Roses would or could pay more for the property than the Kemps offered. Ms. Myers knew that Tom Teixeira from the Cartier realty firm represented a distinct business entity from Marshall & Sedler or Pete Sedler. After a title search showed that Ms. Myers had clear title to the property, the check which Mr. Sedler had given to Ms. Myers on September 18, 1987, with the restrictive endorsement was replaced. Later Mr. and Mrs. Rose tried to close their purchase, but found they could not. Ms. Myers had failed to inform them of the sale she made to the Kemps through Mr. Sedler. Mr. Teixeira, in retribution, filed an ethics complaint about Mr. Sedler with the West Palm Beach Board of Realtors.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint against Peter P. Sedler and Marshall & Sedler, Inc., be dismissed. RECOMMENDED this 14th day of March, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 14th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6183 Rulings on findings proposed by the Department: 1. Rejected as unnecessary. 2 and 3. Adopted in Finding 1. 4 - 6. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 3. Implicit in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 6. Implicit in Finding 6. This does not mean that the contract subsisted, however. Rejected. Ms. Myers was willing to sell the property to Mr. and Mrs. Rose after the contract expired, but she was not under any obligation to do so. Adopted in Finding 7. Rejected, because there was no pending contract. Teixeira never obtained a written extension of the closing date and Ms. Myers was free to sell elsewhere. Rejected. No one could have truthfully told Sedler there was a pending contract. None existed. Rejected, because Mr. Sedler had no reason to believe that there was a subsisting contract for the sale of the property; there was none. Admission number 20 is not to the contrary. Adopted in Findings 10 and 11. Rejected. See, Findings 9 and 10. Rejected as unpersuasive. Rejected as cumulative to Finding 9. Adopted in Finding 14. Adopted in Finding 11. Rejected as unnecessary. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Frank W. Weathers, Esquire Frank W. Weathers, P.A. Post Office Box 3967 Lantana, Florida 33465-3967 Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792