Findings Of Fact The Joanne Gamache is a white, American female, and she owns 51 percent of the stock of Sun World Travel, Inc., (hereafter Sun). She submitted an application for MBE Certification in behalf of Sun to the Department of Management Services, (hereafter DMS). (R.E. 1, p. 24-31) Gillies Gamache, Joanne's husband, owns 49 percent of Sun World Travel. (Tr. 19-20) The major business purpose of this business is the sale of travel. (Tr. 35) Sun is a corporation domiciled in Florida with less than 25 employees, and a net worth of less than $1 million dollars. DMS, through its Certification Officer Morris, reviewed the file, completed an on site visit to Petitioner's business, and Sun's application for MBE Certification was tentatively denied. (Tr. 97-100) Sun was duly notified of DMS's decision, and filed a timely request for formal hearing on the intended agency action. In 1978, Gilles Gamache bought a travel agency in Broward County called Transit Travel using the joint savings of Gilles and Joanne Gamache. (Tr. 11- 12) All of the stock of this travel agency was issued to Gilles Gamache. (Tr. 19) He was both travel agent and the manager of Transit Travel. (Tr. 11) Joanne Gamache also worked in the agency making resevations, delivering tickets and doing the bookkeeping. (Tr. 15-16) Both Gamaches were also employed full time as teachers in the Broward County school system. (Tr. 12-13, 15-16) In 1981, the Gamaches moved to Tallahassee selling both their home and the business in South Florida. (Tr.14) Gilles Gamache opened another travel agency in Tallahassee called Sun World Travel using the proceeds of the sale of Transit Travel and other jointly held property. (Tr. 14 and 31) He was initially the 100 percent owner of the agency. (Tr. 19) Gilles Gamache initially worked in the travel agency full time and Joanne Gamache continued to teach school full time, and deliver tickets and work on business' books. (Tr. 16-19) She occasionally made some reservations. (Tr. 16-19) In 1989, Gilles Gamache transferred 51 percent ownership of Sun to Joanne Gamache. (Tr. 19-20) This shift resulted when Gilles Gamache became involved in additional business ventures, Joanne Gamache had more time to devote to the business because their daughter had entered school, and the transfer reflected the ownership interest which Joanne Gamache had possessed in Sun and its predeccessor, Transit Travel. It is incorrect to state that Joanne Gamache did not pay anything for her share of the business because she would have been entitled to a share of the business equal to her contribution to the joint funds used to purchase Transit Travel and jointly held property from which the money came to start Sun. (Tr. 31) The uncontroverted evidence is that Joanne's contributions to those savings was greater than Gilles' because she had always maintained her full time employment as a teacher. (Tr. 43 and HO's notes p. 6, 14, 27) The bylaws of the corporation provide that no transfer of stock which would dilute the 51 percent ownership of this corporation by minorites shall be permitted. (Tr. 21, Pet. Exh. 2, Article IV, Section 5) Concurrent with the shift in ownership and responsibilities, Sun hired an office manager because of a technical requirement that the manager of such an agency must be a certified reservationist, and Joanne Gamache is not certified. Initially, one of the existing employees, who was certified, was employed as the manager. Thereafter, Cindy Cimbora was hired as the manager; however, she is under the direction and control of Joanne Gamache. Gilles Gamache continues to be employed as a reservationist with Sun, as well has being the sole employee of two other companies which he owns. One of these companies is an importing company and the other involves text books. Gilles Gamache works 20 to 30 hours per week for Sun World Travel and 16 hours in his other businesses. (Tr. 80, 29-30) One of the major purchasing decisions made by Sun in the last five years was the purchase of the current business site. Joanne Gamache suggested the purchase of the building as a business location for Sun, and was the prime mover in its purchase, although both Gamaches participated in the negotiations for the purchase. The Gamaches own the building personally and rent the building to their businesses. The office of Gilles Gamache's companies are also in this building, but separate from those of Sun. None of the travel agency's business is transacted in the area used by his other businesses, and visa versa. (Tr. 76) Joanne Gamahe designed, selected and purchased the business' sign, entrance, and doors. She contracted for the security system for Sun. Rent paid by Sun on the building is less than $20,000 a year. Joanne Gamache earns $32,000 a year as a teacher and $7,000 a year from Sun World Travel. (Tr.46-47) Joanne Gamache goes to the business before and after school to deal with day to day business decisions providing direction to Cimbora in writing, directly, and by telepone. Joanne Gamache does a portion of her bookkeeping work at home at night and on the weekends. (Tr. 49) She estimates that she works 15-20 hours per week for Sun World Travel during the school year. Currently, Cindy Cimbora directs the other agents during business hours from 8:00 a.m. to 6:00 p.m. (Tr. 76-94) The Gamaches, as teachers, originally decided to engage in the travel business because its peak busy periods coincide with traditional school breaks. Sun employs Joanne Gamache, Gilles Gamache, Cindy Cimbora, Mary Waltman and John Moseley. Joanne Gamache makes personnel decisions, although most of the current employees were employed prior to the transfer of business ownership, and prepares and signs all payroll checks. She did interview and hire Cindy Cimbora, a white, American female in January 1992, on an employment contract which provides that Cimbora has first right of refusal if the agency is put up for sale. Cindy Cimbora is an experienced travel agent, and certified reservationist. (Tr. 50-51) Gilles Gamache signed the latest contract for the business' reservation computer system; however, Joanne Gamach negotiated the contract, and did not sign in behalf of the business because she was out of town because of an illness in her family. (Tr. 36) Joanne Gamache negotiated and signed the previous contract for reservation computer services. (Pet. Exh. 4 & 5, and Tr. 37) Joanne Gamache currently pays payroll, purchases supplies, handles accounts receivable, deals with the accountant about taxes, and gives direction to Cindy Cimbora on business to pursue. Joanne Gamache controls the finances of the business. Sun has a line of credit with First Florida Bank for which both Gamaches are jointly and severally liable. The business regularly uses credit card accounts for which both Gamaches are jointly and severally liable. Sun is unable to procure credit without the personal guarantee of both Gamaches. Cimbora and Gilles are additional authorized signatories on the business' checking account to facilitate transactions, such as making refunds to customers. Joanne Gamache writes the majority of the checks to suppliers and service providers. The company supplied a list of daily business activities for each owner at the request of the Certification Officer. (R.E. 1, p. 33-36) Gilles Gamache listed the following duties: disseminate information on new travel deals, coordinate ticket deliveries, organize travel literature files, look out for the best insurance values, monitor sales, solicit new business and make travel arrangements for clients. (R.E. 1 p. 34) Joanne Gamache listed her activities as the following: purchase goods and services, sign checks, do payroll, monitor profitability, monitor overhead costs, monitor collection of commissions, monitor stock of documents, issue refunds and process weekly airline report. (R.E. 1 p. 35) All of Joanne Gamache's functions related to management and the setting of policy, not day to day arrangements for travel; however, her duties are essential to the success of the business. In order to establish and maintain a travel agency the Airline Reporting Corporation requires that a travel agent with two years experience must run the business. (Tr. 123) To become a travel agent, a person must take a four hundred hour course covering topics including the opening and closing of a sale, learning airports, the destination of airlines and scheduling. (Tr. 88) There is a separate course requirement for the COVIA reservation system. (Tr. 88) COVIA is a system for making computerized airline reservations. Joanne Gamache has not attended these courses and is not a certified travel agent. (Tr. 75) This is the reason Sun employs Cindy Cimbora. The department's determination was based upon its conclusions regarding control of the business. To determine who has control of a family- owned business the agency looks at the contributions of each family member, the history of involvement with the business of each spouse, who sets policy, the resumes of the owners, the relative involvement of each owner in the business, and the length of time each had been active in the travel business. The agency initially concluded that Gilles Gamache's experience in the business was more extensive than his wife's, and that Joanne Gamache does not control Sun World Travel. (Tr 123-125)
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered granting the Petitioner's request for certification of the minority business enterprise. RECOMMENDED this 12th day of October, 1993, at Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1993.
The Issue The issue in this case is whether there is a conflict between the corporate names of Travel Unlimited, Inc. and Travel Unlimited of Harbor Beach, Inc.
Findings Of Fact The Petitioner, Travel Unlimited, Inc., is a travel agency doing business in the northern part of Dade County and southern part of Broward County, State of Florida. The corporation, which was chartered in 1973, is physically located in North Miami Beach, Florida. Petitioner has extensively advertised its travel business for several years in the "Miami Herald," a newspaper of wide circulation in Dade and Broward Counties. It also has circulation in Palm Beach County, Florida. The Respondent, Travel Unlimited of Harbor Beach, Inc., was chartered in December of 1980, and is located approximately 15 to 20 miles from Petitioner in a heavily populated metropolitan area. Telephone calls are toll free between the Hollywood area of Broward County and northern Dade County. In addition to its northern Dade County telephone numbers, Petitioner has maintained for years at additional expense an additional telephone line into Fort Lauderdale. This telephone line provides toll free service between northern Broward County and northern Dade County. A great deal of confusion has been created by the Respondent travel agency's use of the name Travel Unlimited of Harbor Beach, Inc. Numerous telephone calls have been received by Petitioner which were intended for that Respondent. Mail from various airlines has been received by Petitioner which was intended for that Respondent. An employee of Petitioner was almost denied the right to special agent discounts because an airline confused the Petitioner with the Respondent travel agency despite their different IATA numbers. It appears that in spite of their IATA numbers being different, confusion occurs even with professionals in the industry. The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders which were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of State revoke the reservation for the corporate name Travel Unlimited of Harbor Beach, Inc. DONE and ORDERED this 25th day of November, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-967 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1981. COPIES FURNISHED: Maurice Rosen, Esquire Suite 112, Interama Professional Building 16666 NE 19th Avenue North Miami Beach, Florida 33162 Robert Kupchak, Vice President Travel Unlimited of Harbor Beach, Inc. 2198 SE 17th Street Fort Lauderdale, Florida 33316 Stephen Nall, Esquire Office of the General Counsel Department of State The Capitol Tallahassee, Florida 32301 George Firestone, Secretary Department of State The Capitol 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, Cecile M. Haake, has filed a claim against the bond in the amount of $398.00 alleging that Passport failed to perform on certain contracted services. On December 24, 1990, petitioner responded to a newspaper advertisement promoting a five-day, four-night cruise to the Bahamas for $199.00 per person. The advertisement was run by Travel Partners International (TPI), a telemarketeer selling travel certificates on behalf of Passport. Petitioner purchased a certificate authorizing two persons to take the cruise. For this, she paid $398.00. Shortly thereafter, petitioner received a package with a reservation request form. The form carried the name, address and telephone number of Passport. It should have contained an issue date and the name of the sponsor, but TPI erroneously left that information blank. Ordinarily, a certificate would expire one year after the issue date. Petitioner was not told this when she agreed to purchase the package. Around February 20, 1992, petitioner returned the reservation request form to Passport with a requested travel date of May 1, 1992. On February 26, 1992, Passport returned the form and advised petitioner that "your reservation form was not completed by your sponsor." She was told to have TPI complete the form, and resubmit it with her requested travel dates. By now, however, TPI had gone out of business. Petitioner accordingly filled in TPI's name in the space for the sponsor, and she inserted an issue date of March 15, 1991. This meant her certificate would expire on March 15, 1992, or less than a month later. She again returned the form to Passport. Since her requested travel dates were more than a year after the issue date, Passport declined to accept the reservation. Although in some cases Passport offered to extend certificates for an additional year for a $50.00 fee, there is no evidence that Passport did so in this case. When petitioner requested a refund of her money, Passport's successor corporation, Incentive International Travel, Inc. (Incentive), declined to issue a refund on the ground the package was purchased from TPI and not Passport, and Passport had never received any money from the telemarketeer. To date, petitioner has never received a refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in the amount of $398.00. DONE AND ENTERED this 9th day of January, 1995, 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 January, 1995. COPIES FURNISHED: Cecile M. Haake 7254 Quail Meadow Road Charlotte, North Carolina 28210 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact The parties stipulated to the following factual matters: The Respondent was, at all times alleged in the Administrative Complaint in this cause, a licensed real estate broker having been issued license number OliB294. From February 2, l9B4 to August 13, l9B4 Respondent was licensed and operating as the sole qualifying broker and officer of Commercial International Realty, Inc., a corporation licensed as a real estate broker, 219 Commercial Boulevard, Lauderdale- By-The-Sea, Florida. At all times alleged in the Administrative Complaint, Elaine Sherban was president, sole stock holder and owner of Commercial International Realty, Inc., 219 Commercial Boulevard, Lauderdale-By-The-Sea, Florida. Elaine Sherban is not now, nor was she ever, licensed or a holder of a valid and current license as a real estate salesman, broker-salesman or broker in the State of Florida. On or about December 29, l9B4, Respondent and Commercial International Realty, Inc., via Elaine Sherban, entered into an employment agreement whereby Respondent was employed as a real estate broker. The Respondent has not paid any sum whatsoever to Bobbi Jo Magee. Based upon the evidence received and the demeanor of the witnesses who testified, the following additional findings of fact are made: On or about March 7, 1984, Bobbi Jo Magee, as purchaser, executed a purchase agreement with Robert E. Moon, seller, for an establishment known as Cowboy's Lounge and Restaurant, Inc. The purchase agreement provided for a purchase price of $257,500 and a $10,000 non-refundable deposit. The date of closing was specified in the agreement to be June 7, 1984. In connection with this purchase agreement, Bobbi Jo Magee also executed a promissory note, dated March 7, 1984, in the amount of $35,000, payable to Elaine Sherban or her assigns. The promissory note was due and payable on March 12, 1984 and stated it was for "consulting fees and cash loan." Bobbi Jo Magee testified that she had no money of her own for the deposit called for in the promissory note, but that her mother, Mary Rose Turner, was financially backing her in this transaction. On March 30, 1984, Mary Rose Turner executed a wire transfer in the amount of $35,000 plus an additional $500 to Commercial International Business Brokers Corp., a business owned by Elaine Sherban. Commercial International Business Brokers was located in the same building as Sherban's other business, Commercial International Realty, Inc., but was a separate business with different telephone lines and financial accounts. Turner and Magee testified that this wire transfer was for the deposit on Cowboy's Lounge, and was for an amount greater than the $10,000 deposit called for in the purchase agreement because Sherban told them that Moon would not accept a deposit of only $10,000 on this transaction. Respondent did place several telephone calls to Turner, who was out of the state, on behalf of Sherban in which Sherban made requests for more money. Respondent's role was to make the phone call and leave a message that Sherban needed to talk to Turner or to turn the phone over to Sherban who then discussed the details with Turner. Respondent did not discuss the financial, or any other, details of the transaction with Turner in these calls, but simply placed the calls for Sherban and facilitated discussions between Sherban and Turner. Elaine Sherban was acting through Commercial International Business Brokers in this transaction with Magee, Turner and Moon. She had Magee execute the $35,000 promissory note to cover the $10,000 deposit and consulting fees she charged for her services. Respondent had no knowledge of the reason for this promissory note or what, if any, services Sherban had performed. Respondent did not participate in the execution of the promissory note and purchase agreement other than as-typist, notary and witness. She was not involved in any substantive discussions which caused Magee to sign either document, nor were any part of the funds that were wire transferred by Turner ever received or used by either Respondent, or Commercial International Realty, Inc., the real estate office in which she was employed. The funds which were transferred by Turner on behalf of Magee were received by Commercial International Business Brokers and were used thereafter by Elaine Sherban. The sale of Cowboy's lounge did not close on June 7, l9B4, due to concerns which Magee and Turner developed in late May regarding the business records of Cowboy's Lounge. Because they could not get information which they felt was satisfactory about the financial history of this business, they sought legal advice and notified Sherban and Moon that they would not close. Neither Magee nor Turner have ever received a refund on any part of the $35,500 which was transferred by wire on March 30, l9B4.~_ Between March 7, 1984, and late May Respondent met with Magee on several occasions and with Turner on one occasion at Cowboy's Lounge. Others were also present, including Sherban and Moon. Respondent's role in these meetings was purely social, making casual conversation She did not discuss any aspect of the transaction, or the financial condition of Cowboy 's. Despite the fact that Respondent did not intend to actively participate in the transaction involving Cowboy's Lounge, and in fact did not solicit, negotiate or otherwise intentionally assist with this sale, she did give the appearance of working with and assisting Sherban in this transaction. Magee and Turner made the reasonable assumption that Sherban and Respondent were partners for purposes of this sale. This appearance was given by tlle fact that Sherban said they were acting as partners, the very close proximity of the offices of Commercial International Business Brokers and Commercial International Realty, Inc., common ownership by Sherban of both businesses, Respondent's placing phone calls to Turner on behalf of Sherban, meeting with Turner and Magee at Cowboy's along with Sherban, and her functioning as typist, witness and notary for some of the documents involved in this transaction. No demand by either Turner or Magee has ever been made on Respondent for return of part or all of the $35,500. Through counsel, they did make demand for return of this sum upon Sherban and Moon. There is no evidence that Respondent ever employed Sherban. The evidence is that Respondent was employed by Commercial International Realty, Inc., which was owned by Sherban.
The Issue Whether Respondent, a “seller of travel,” owes Petitioners a refund for misrepresentation of travel services offered pursuant to an agreement between the parties.
Findings Of Fact Axis is a “seller of travel” and at all times material to this matter, was located in St. Augustine, Florida. On or about October 8, 2017, Petitioners attended a presentation that was conducted by Axis. Petitioners were enthusiastic about the travel service and were impressed by the presentation. Petitioners frequently traveled to trade shows and believed the services would help reduce travel costs. They were particularly interested in vacation packages because they intended to travel to Cancun, Mexico. During the presentation, they were told of the bonus week fee of $97.00. Ms. Page asked specific questions about the costs for a vacation package for Cancun and whether there would be any hidden or additional fees. The presenter assured Petitioners there would be no hidden or additional fees. After the presentation, Petitioners jointly executed a Reservation Services Agreement (Agreement) for a non-exclusive license to access the travel network for a fee of $4,394.00. The fee was paid in two installments of $2,000.00 and one installment of $394.00. The agreement provides, in pertinent part, as follows: Customer desires to enter into this Agreement reservation services applicable to vacation packages, nightly stays, bonus weeks, fantasy getaways, activities and excursions, cruises, car rentals, golf discounts, dining discounts, hotels and luxury condominium and villa rentals (“Network Benefits”). The Customer acknowledges that the Network Benefits may be changed from time to time. * * * 8. Discount Variation All benefits and discounts conferred through this Agreement vary greatly based on the characteristics of the vacation unit or type, the time of year, space availability, and/or the rates charged by those parties listing the accommodations for rent through the Network. Customer acknowledges that he/she has been advised that while some discounts may be significant, these same accommodations may not enjoy deep discounts at other times and that deep discounts are not available for some vacation units or types at any time. Customer acknowledges that the value in this License is expected to be realized over time contingent on the frequency of the use and that the Purchase Price is not guaranteed to be recovered on a single vacation, the first year, if Customer does not take vacations, or if the vacation choices are not tailored offerings. * * * 17. Member Best Price Guarantee Customer shall receive the Best Price Guarantee if Customer finds lower prices on Equal Arrangements through a competing vendor. To access the guarantee, Customer must secure a confirmed reservation through the Network that displays the Member Price Guarantee checkmark, pay for the reservation in full and receive a valid confirmation number. The sections on the website included in the Best Price Guarantee are vacations (i.e. Accommodations, Cruises, Vacation Packages, and Worldwide Tours) and vacation add-ons (i.e. Car Rentals, Activities and Golf). Airfare not included. Eligible claims must be submitted within 24 hours from the time the original fully paid reservation is made and meet all the Terms and conditions listed in full on the Website, must be in US dollars, must be an identical comparison to what was purchased and must be publicly viewable via the internet (i.e. the general public must be able to view the rate on a website, as it does not apply to consolidator fares, fares that have been acquired through auction or bid, or any Internet fares that cannot be independently verified as to the price and exact itinerary) and available and bookable (i.e. the rate is currently available and can be reserved online). Equal Travel Arrangements shall be defined as the exact same arrival and departure dates, the exact same property, the exact same room or cabin classification, the exact same room or cabin size, the exact same cruise line, and the exact same itinerary. Reservations excluded from the Best Price Guarantee include Non- Refundable reservations, Airfare and reservations made or purchased with Reward Credits in full or in part. If the claim is found to be valid, Customer will be credited with 110% of the difference to (sic) in the form of Reward Credits. * * * 25. Entire Agreement This instrument contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements, written or oral, with respect to such subject matter. It may not be changed orally but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification, extension or discharge is sought. * * * By signing below, the parties to hereby execute this Agreement on the Execution Date of this Agreement as identified herein. The Licensee acknowledges and agrees that this Agreement is subject to all terms and conditions set forth herein. The Licensee further acknowledges having read the entire Agreement and agreed to each of its provisions prior to signing below. * * * YOU HAVE THE RIGHT TO CANCEL THIS CONTRACT AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD (3) CALENDAR DAY AFTER THE DATE OF THIS CONTRACT. UPON CANCELLATION, YOU WILL RECEIVE A FULL REFUND, WITHOUT ANY CHARGES OR PENALTY, WITHIN TEN (10) DAYS UNLES SOONER REQUIRED BY APPLICABLE LAW. THIS RIGHT IS NONWAIVABLE. TO EXERCISE YOUR RIGHT TO CANCEL, YOU MUST SEND A WRITTEN NOTICE STATING THAT YOU DO NOT WISH TO BE BOUND BY THIS CONTRACT. THE NOTICE MAY BE SENT BY EMAIL, FACSIMILE: 713-535-9239, OR BY DEPOSIT FIRST-CLASS POSTAGE PREPAID, INTO THE UNITED STATES MAIL: 13416 SOUTHSHORE DR. CONROE, TX 77304. In November 2017, Petitioners used the network software for the first time. Petitioners searched for accommodations in Cancun, Mexico at an all-inclusive resort. The resort had a price of $129.00 instead of $97.00 and a mandatory resort fee in the amount of $135.00 to $185 per person per day. Petitioners found accommodations at three different all-inclusive resorts, which also required an additional mandatory resort fee. While rooms were available for the price offered by using the software, Petitioners were dissatisfied because the resorts required a resort fee. At an unknown time after using the software, Petitioners called Respondent but did not receive a return call. On December 14, 2017, Petitioners sent text messages to Jonicar Cruz seeking a refund because the service was not what was represented to them at the presentation. Ms. Cruz offered to assist Petitioners with the software program. Ms. Cruz also directed Petitioners to contact another staff member, as she was no longer an employee of the company at that time. Petitioners’ calls and emails to the other Axis staff member were left unanswered. On February 7, 2018, Petitioners filed a complaint with the Better Business Bureau, and on February 13, 2018, Petitioners filed a complaint with the Office of Citizen Services, Florida Attorney General’s Office, and the Better Business Bureau. In April 2018, Petitioners filed a complaint with the Department. Petitioners admitted that they did not submit a written letter of cancellation of the agreement during the three-day cancellation period. Ms. Cruz testified that she did not receive any written request to cancel the agreement during the cancellation period. Ms. Cruz also testified that while she could not affirm certain representations made by the presenter, she explained to Petitioners the process for the price match guarantee, and that a resort fee may be associated with all-inclusive resorts.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioners, John Elkins and Mary Page’s, claim against Axis and the surety bond be DENIED. DONE AND ENTERED this 4th day of September, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 2018. COPIES FURNISHED: W. Alan Parkinson, Bureau Chief Department of Agriculture and Consumer Services Rhodes Building, R-3 2005 Apalachee Parkway Tallahassee, Florida 32399-6500 (eServed) John E. Elkins Mary Page Apartment 1605 7507 Beach Boulevard Jacksonville, Florida 32216-3053 (eServed) Michael Borish Axis Getaways Systems, LLC 965 North Griffin Shores Drive St. Augustine, Florida 32080-7726 Axis Getaways Systems, LLC Suite B 108 Seagrove Main Street St. Augustine, Florida 32080 Travelers Casualty Surety Company of America One Tower Square Hartford, Connecticut 06183 Bryan Greiner Axis Getaway Systems, LLC 912 Ocean Palm Way St. Augustine, Florida 32020 Tom A. Steckler, Director Division of Consumer Services Department of Agriculture and Consumer Services Mayo Building, Room 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Stephen Donelan, Agency Clerk Division of Administration Department of Agriculture and Consumer Services 407 South Calhoun Street, Room 509 Tallahassee, Florida 32399-0800 (eServed)
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 The Respondent. At all times relevant to this proceeding, the Respondent, George Costage, served as a member of the City Commission of the City of Safety Harbor (hereinafter referred to as the "City"). Mr. Costage was first elected to the City Commission in March of 1986. He was reelected to the City Commission in 1988 and 1990. His bid for reelection in 1992 was unsuccessful. Mr. Costage's service on the City Commission was his only experience holding public office. Mr. Costage had previously worked as a fireman in the City of Detroit until his retirement. Mr. Costage was paid a salary of approximately $400.00 a month for his service on the City Commission. The City of Safety Harbor's Travel Policy and Procedure. Members of the City Commission, including Mr. Costage, were required from time to time to travel on behalf of the City. For example, travel for the City in conjunction with the Florida League of Cities was expected of Commissioners, including Mr. Costage. Mr. Costage served on the Ethics Committee of the Florida League of Cities. Commissioners also incurred expenses dealing with the citizens of the City which they usually were not specifically reimbursed for. In lieu of reimbursing Commissioners for such expenses, all Commissioners were paid $150.00 a month by the City. The $150.00 monthly payment was intended as reimbursement for the otherwise unreimbursed expenses they incurred. Commissioners were paid $150.00 per month regardless of the amount of actual expenses they incurred. The City also paid Commissioners for expenses they incurred for travel out side of the City on City business. For example, travel by Commissioners to an annual Florida League of Cities' meeting in Crystal River, Florida, was paid for by the City. There were several methods by which the City paid for out-of-town travel expenses of Commissioners: The City made payments directly to the vendor on behalf of a Commissioner; A credit card was issued by the City for each Commissioner. Commissioners were allowed to use the credit card to charge expenses which the City then paid directly to the credit card company; Commissioners could obtain reimbursement from the City for expenses they had previously incurred and paid out of their own resources; and The City could advance funds to Commissioners to cover estimated travel expenses to be incurred. The City used a form titled a "Travel Expense Certificate" (hereinafter referred to as the "Travel Form") in conjunction with the payment of travel expenses of Commissioners. The Travel Form was to be used by Commissioners to obtain reimbursement of travel expenses a Commissioner incurred and paid for out of the Commissioner's own resources. See Advocate's exhibit 4A and 4B, a photocopy of Travel Forms used by Mr. Costage. On the back of the Travel Form were instructions concerning how to complete the form and "Travel Expenses Regulations." Among other things, the following was printed on the back of the Travel Form: Traveling expenses shall be limited to those expenses incurred in the performance of a public purpose authorized by law to be performed and must be within the limitations prescribed below. . . . . . . . Certificate: "I certify that the expenses shown herein were necessary and actually incurred during, authorized travel in performance of official duty and the claim made herewith is true and correct in every manner." The City had established policies governing reimbursement of travel incurred by Commissioners. Some of those polices were in writing, having been included on the back of the Travel Form. The evidence failed to prove that the City, however, always strictly enforced its policies. Because of alleged problems associated with travel expenses paid by the City, including the issues in this case, the City adopted more extensive written travel policies by Resolution adopted November 20, 1989. Travel Expenses of Family Members. Commissioners, at times, took family members, including spouses, with them while traveling on City business. The City also, at times, made travel arrangements for family members and made advance payments of travel expenses for family members. It was the policy of the City that travel expenses of family members of Commissioners were not "expenses necessarily incurred in the performance of a public purpose authorized by law to be performed . . . ." Therefore, the City expected reimbursement of travel expenses incurred by family members. Although the City's policy concerning the payment of travel expenses of family members set out in finding of fact 15 was not specifically stated in writing, the general policy contained on the back of the Travel Form is sufficient to put a reasonable person on notice that they should determine whether a family member's travel expenses are "necessarily incurred in the performance of a public purpose authorized by law to be performed " It was not the policy of the City that travel expenses of spouses or other family members of a Commissioner incurred while the Commissioner was traveling on City business were to be borne by the City. The City did not require reimbursement for certain travel expenses incurred by a Commissioner which also benefited a family member of the Commissioner. Those expenses were limited to expenses which would generally have been incurred by the Commissioner regardless of the presence of the family member on the trip, i.e., the cost of a rental vehicle. Travel Expenses Incurred by Mr. Costage's Spouse Paid by the City. At issue in this proceeding is the period of time between March, 1986 and November 20, 1989, when the City adopted a written policy clearing setting out more extensive travel policies of the City. During the period of time at issue in this case, and while Mr. Costage was a Commissioner, his wife of thirty-seven years accompanied him on trips he took on City business. The City paid Mrs. Costage's travel expenses directly to the vendor when making travel arrangements or it paid travel expenses attributable to Mrs. Costage charged on the credit card provided to Mr. Costage by the City for his use. On at least one occasion, the cost of a helicopter trip over the Grand Canyon incurred by Mr. and Mrs. Costage was paid for by the City. Mr. Costage took no immediate action to reimburse the City for travel expenses paid by the City for Mrs. Costage's travel. Not until well after Mr. Costage was questioned publicly about the expenses paid by the City for Mrs. Costage's travel did Mr. Costage reimburse the City for her travel expenses. Mr. Costage's Payment of Mrs. Costage's Travel Expenses to the City. During Mr. Costage's campaign for reelection to the City Commission in the Spring of 1990, the propriety of the payment of the City of travel expenses incurred by Mr. Costage's spouse was questioned. As a result of the issue being raised, Mr. Costage requested that the City Manager determine the amount of travel expenses which the City had paid for Mrs. Costage's travel. This request was made in approximately March, 1990. The City Manager then requested and received an accounting from the City finance department. Based upon the records of the City finance department, it was initially determined that a total of approximately $3,100.00 in travel expenses attributable to Mrs. Costage had been paid by the City and had not been repaid by Mr. Costage. Mr. Costage was apprised of the City finance department's determination in approximately March, 1990. Mr. Costage asserted that the correct amount was about half the $3,100.00 amount arrived at by the City finance department. No reimbursement was made in March, 1990. At about the same time that Mr. Costage was informed of the amount of travel expenses attributable to his spouse, the Pinellas County Sheriff's Office began an investigation into the City's payment of travel expenses on behalf of family members of Commissioners and others. This was a general investigation, not limited to any one Commissioner or individual. As a consequence of the investigation, Mr. Costage took no further action to reimburse the City for the expenses paid on behalf of his spouse. Subsequent to the completion of the Sheriff's Office investigation, Mr. Costage again discussed the amount of his spouse's travel expenses with the City and it was mutually agreed that the correct amount of unreimbursed travel expenses paid by the City for Mrs. Costage was $2,974.63. Mr. Costage reimbursed the City this amount in February, 1991. Mr. Costage's Knowledge of the City's Policy Concerning the Payment of Family Member Travel Expenses. Mr. Costage has suggested that he did not violate Section 112.313(6), Florida Statutes, because of his assertion that the City did not have a policy that required him to pay for his spouse's travel expenses--that the City practice was just the opposite. He also has asserted that, if the City had such a policy, he was never informed that he was required to repay his spouse's travel expenses and he was not otherwise aware of such a requirement. These assertions are not supported by the weight of the evidence. First, the assertion that no policy requiring reimbursement of family- member travel expenses existed is contrary to the weight of the evidence: The statements on the back of the Travel Form are sufficient to place a reasonable person on notice that such expenses should not be paid for by the City. The statements are, at the very least, sufficient that it would be unreasonable for Mr. Costage to simply assume that his spouse's travel was "incurred in the performance of a public purpose authorized by law"; Several other Commissioners who served during at least part of the period that Mr. Costage was a Commissioner were specifically told that travel expenses incurred by family members of Commissioners were required to be repaid to the City by the Commissioner. See the testimony of Commissioners Caldemeyer, Cincota and Baty, City Mayor Dettmer and City Mayor Levine. Mr. Costage's assertion that it was the practice, if not the policy, of the City that travel expenses of family members were to be paid by the City is also not supported by the weight of the evidence: Except for Mr. Costage and former Commissioner McLaughlin, all the City officials who served during the period of time at issue and who testified at the final hearing of this matter indicated that they were aware that they were ultimately responsible for travel expenses incurred by family members and that the City did not pay those expenses; The evidence failed to prove that travel expenses of family members other than those attributable to Mr. Costage's spouse and possibly Mr. McLaughlin's spouse were paid for by the City without reimbursement; If the City had a policy of paying for spouse travel expenses without requiring reimbursement, why then did Mr. Costage ultimately repay the City almost $3,000.00? He repaid the expenses because he knew City policy required reimbursement and because his use of public funds for his spouse's benefit had been exposed; At best, the evidence proved that the City did not strictly enforce the policy that travel expenses were only to be paid with public funds if they were incurred for a public purpose. As a consequence of the City's lack of strict enforcement, Mr. Costage was able to avoid paying for his spouse's travel expenses from March, 1986 until February, 1991. The lack of enforcement of the City's travel policies, however, does not prove that the City had an established policy of paying the travel expenses of Commissioner's spouses. It only proved that City employees failed to question members of the City's governing body about their actions. The weight of the evidence also proved that Mr. Costage, despite his assertions to the contrary, was told and/or was aware of the City's policy requiring reimbursement of travel expenses of spouses: First, it is concluded that Mr. Costage was aware of the instructions on the back of the Travel Form: Mr. Costage filed two Travel Forms for which he received reimbursement of expenses incurred in 1986 and 1987. Although Mr. Costage was not able to say absolutely that the signature on the Travel Forms (Advocate's exhibit 4A and 4B) was his signature, he was also not able to say that it was not his signature and he acknowledged that the signatures could be his. It is, therefore, concluded that the two Travel Forms were signed and submitted by Mr. Costage. This conclusion is further supported by the fact that one other Commissioner witnessed Mr. Costage filing a Travel Form; Although on infrequent occasions a copy of a Travel Form without the back of the form was used by City personnel, it was the prevailing practice, especially of individuals such as Commissioners who were located in City Hall, to file an original three part Travel Form which included the instructions. Secondly, it is inferred from the following that Mr. Costage received instructions from the City Manager shortly after he was elected concerning the City's travel policies, including the policy concerning travel expenses of spouses: It was the City Manager's common practice and procedure to discuss, or cause to be discussed, City policies and procedures, including those governing spouse travel expenses, with all new Commissioners; All of the Commissioners who served during the period of time at issue and who testified in the final hearing, except Mr. Costage, recalled meeting with the City Manager or, at the City Manager's direction, the City's finance director, and discussing travel procedures. All of these Commissioners, except Mr. McLaughlin, recall being told that family travel expenses were to be paid by the Commissioner. Even Mr. McLaughlin admitted that he had been told that travel expenses attributable to his children were to be reimbursed by him. Mr. McLaughlin's testimony that the City policy concerning the payment of spouse travel expenses was not credible, especially in light of the ongoing litigation between Mr. McLaughlin and the City over travel expenses of Mrs. McLaughlin paid for by the City. While on a break during a budget workshop in 1986 or 1987, Mrs. Costage remarked in the presence of Mr. Costage and others that she thought the City should pay for the travel expenses of spouses of Commissioners because of all that the spouses did on behalf of the City. Mr. Costage did not indicate, as he has asserted in this proceeding, that the City already had a policy of paying for spouse travel expenses. The statement is also contrary to Mr. Costage's assertion that he was unaware of the actual policy of the City requiring that Commissioners ultimately pay for their spouse's travel; In 1987, Arthur Levine ran against Alton Dettmer for the position of City Mayor. At some time before the election Mr. Costage advised Mr. Levine to look into Mr. Dettmer's travel expense reports, implying that there was something wrong with the manner in which Mr. Dettmer had been paid for travel expenses. This act by Mr. Costage supports a finding that Mr. Costage was aware that the City had at least some policies governing travel. Benefit of Spouses Travel Expenses to Mr. Costage. Based upon the conclusion that Mr. Costage was aware that the City's policy required that he pay for Mrs. Costage's travel expenses and the fact that Mr. Costage did not pay for almost $3,000.00 in expenses incurred during the period March, 1986 through November 20, 1989, until February, 1991, it is concluded that Mr. Costage was aware that his failure to pay Mrs. Costage's travel expenses would be a financial benefit to him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, George Costage violated Section 112.313(6), Florida Statutes, as alleged in Complaint No. 91-37. It is further RECOMMENDED that Mr. Costage be publicly censured and reprimanded. It is further RECOMMENDED that Mr. Costage be required to pay a civil penalty of $3,000.00. DONE and ENTERED this 24th day of September, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 24th day of September, 1992. APPENDIX Case Number 92-1007EC The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact A 1 2. 2 3. 3 5. 4 19. 5 12. B 1 4. 2-4 6. 5 7. 6 8. 7 14-15. 8 9. 9 Hereby accepted. 10 9. 11 33. 12 10. C 1 20-21. 2 22. 3 23. 4 24. 5 25. 6 Hereby accepted. 7 25. 8 26. 9 See 27. 10 27. 11 28. The last sentence is hearsay. 12 29. D 1-2 33(a) and hereby accepted. 3-5 33(b). 6 Hereby accepted. 7 31-32 and 33(b). 8 33(b). 9 Hereby accepted. 10 33(c). Not supported by the weight of the evidence. Hereby accepted. 13 33(d). 14 33. Mr. Costage's Proposed Findings of Fact Mr. Costage's proposed "Findings of Fact" consists primarily of a summary of the testimony of the witnesses and not the ultimate facts which the testimony may support. In large part, the summary of testimony is accurate. It has been noted below where testimony has been mischaracterized or where the testimony does not support the ultimate fact which the testimony may or may no support. Advocate's Witnesses: Constitutes a generally accurate summary of testimony. Constitutes a generally accurate summary of testimony. The second sentence is not, however, relevant. The suggestion in the next to the last sentence that "no reimbursement was sought" is not supported by the weight of the evidence. Constitutes a generally accurate summary of testimony. The last sentence is not relevant and/or is not supported by the weight of the evidence. Constitutes a generally accurate summary of testimony. Whether Mr. Caldemeyer's testimony was "repetitious" is not relevant. Constitutes a generally accurate summary of testimony. Constitutes a generally accurate summary of testimony. The last sentence is hearsay. Mr. Costage's Witnesses: Constitutes a generally accurate summary of testimony. Ms. Adkins testimony involved a period of time subsequent to the period of time at issue in this proceeding. Consequently, her testimony was not of much relevance. Nor was her testimony concerning what others did supported by the weight of the evidence. Not supported by the weight of the evidence. Constitutes a generally accurate summary of testimony. Mr. Costage's testimony was generally not supported by the weight of the evidence or was not relevant. The first three sentences are not supported by the weight of the evidence. The fourth sentence has been generally accepted in finding of fact 14. The fifth through seventh sentences are not relevant. With regard to the last sentence, see findings of fact 24- 29. Mr. Costage's proposed findings of fact end on page 7 of Mr. Costage's proposed recommended order. Beginning on page 7, Mr. Costage has provided argument and conclusions of law. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 George A. Routh, Esquire George A. Routh, P.A. 1446 Court Street Clearwater, Florida 34616 Bonnie J. Williams, Executive Director Commission on Ethics The Capitol, Room 2105 P. O. Box 6 Tallahassee, Florida 32302-0006
Findings Of Fact On August 8, 1989, Respondent issued to prospective vendors a clear and unambiguous request for proposals (RFP) relating to the delivery to travel agency services for the School District of Palm Beach County, Florida. All proposals were due no later than August 28, 1989. Review of proposals, to include any interviews Respondent deemed necessary, was to take place between August 29 and September 18, 1989. The following appears in Paragraph 1.1 of the RFP, in the introductory section: 1.1 This is a Request for Proposal (RFP) to provide travel agency services to the School District of Palm Beach County, Florida; The School District operates 112 schools and 55 administrative departments in an area encompassing 2,332 square miles. The services include but are not limited to, purchases and delivery of air and other modes of travel tickets and related travel services. ... The introductory section of the RFP also provides the names, titles and telephone numbers of two persons to whom questions could be directed. The following appears in Paragraph 5.5 of the RFP, in the terms and conditions section: 5.5 The District reserves the right to reject any or all proposals, to further negotiate any proposal, to request clarification of information submitted in any proposal, and to request additional information from any Proposer. Proposals relating to the provision of the following services are solicited in Paragraph 6.1 of the RFP, the scope of services section: 6.1 The following are to be included in the specific tasks to be performed by the Travel Agency; however, it is not considered as a complete list of tasks: A. Deliver tickets, itineraries and other travel documents to the specific office or school requesting same. Proposals from several vendors were received, including proposals from Petitioner and ETA Travel Agency. Petitioner's response to Paragraph 6.1(A) was as follows: Ticket Delivery: will be made as follows: An On-Site reservation and ticketing facility at a mutually acceptable location on School Board administration property. Deliveries will be made to other offices as follows: Scheduled. Emergency. Delivery receipts. Via agency and outside courier service. ETA's response to Paragraph 6.1(A) was as follows: E.T.A. provides immediate free delivery of airline tickets and documents to school board travelers as detailed below: E.T.A.'s radio dispatched couriers provide unlimited deliveries of tickets and travel documents to schools and school board offices from Jupiter to Boca Raton as often as required throughout the business day. At E.T.A. Travel we never limit deliveries to once of twice a day. Tickets are delivered according to the school board's schedule - not ours. In addition to office delivery, E.T.A.'s couriers will deliver tickets and documents to the traveler's home or to other designated place whenever required. Deliveries to west area schools and school board offices are provided through the school board's "pony express" mail system, time permitting, or through federal express overnight delivery services. Deliveries to out-of-county travelers, or to west area travelers requiring expedited delivery, are provided through federal express overnight delivery service. E.T.A. Travel Agency utilizes a delivery and pickup receipt system to insure tracking of all airline tickets. To insure accountability all tickets delivered and picked up must be signed for and receipted at the time of exchange. While in the process of evaluating the respective proposals, Dr. Henry Boekhaff, Respondent's Associate Superintendent for Administration, contacted Mr. James Bertino, the owner of Petitioner to seek clarification as to the operation of Petitioner's proposed on-site ticketing and reservation facility. Mr. Bertino explained that there would be located on school board property a satellite ticket printer that could print airline tickets at the school board site. However, Mr. Bertino did not make it clear to Dr. Boekhoff that the travel documents printed on the satellite ticket printer would be delivered by Petitioner to each office requesting the travel document. Mr. Bertino's verbal description of the manner in which the satellite ticket printer would operate, along with Petitioner's written response to Paragraph 6.1(A), caused Dr. Boekhoff to conclude that Petitioner was not proposing to deliver travel documents to each requesting office. Respondent, following its review of Petitioner's proposal and following Dr. Boekhoff's conversation with Mr. Bertino, construed Petitioner's proposal as making a distinction between deliveries to offices in the administrative building in which the satellite ticket printer was to be located and deliveries to other offices. Respondent construed the proposal to require that persons whose offices were in the same building as the satellite ticket printer to pick up from the printer the tickets, itineraries, and other travel documents they had requested, while deliveries to offices in other administrative buildings and schools would be made by Petitioner. Respondent's construction of Petitioner's proposal was a reasonable construction of the written proposal presented by Petitioner and of the comments Mr. Bertino made to Dr. Boekhoff. Petitioner did not make it clear in either its response to Paragraph 6.1(A) or during the conversation between Mr. Bertino and Dr. Boekhoff that the Petitioner was proposing to deliver tickets to each office in the administrative building where the satellite facility would be located, a service that is of primary importance to Respondent. Following the evaluation of awards the proposal of ETA was selected, subject to the resolution of any timely protest. The services to be afforded by the vendor and the cost of those services were the items of primary importance to Respondent in evaluating and selecting a vendor. Petitioner's protest of the intended award of the contract to ETA was filed on a timely basis. During the informal hearing held in an attempt to resolve this dispute and in the formal hearing held in this proceeding, Petitioner, through Mr. Bertino, maintained that it intended by its response to Paragraph 6.1(A) to state that it would deliver tickets, itineraries, and travel related documents to every School Board office. Petitioner contends that it should be permitted to clarify its intentions at this time. Although Petitioner's response to Paragraph 6.1(A) did not cause its proposal to be rejected by Respondent, the Petitioner's failure to clearly state that it would deliver tickets, itineraries, and other travel documents to each requesting office was the primary reason the proposal of Petitioner was not selected. The services that ETA proposed in its response was the deciding factor in its favor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order which rejects the bid protest filed by International Tours of Juno Beach and which accepts the proposal submitted by ETA Travel Agency. DONE AND ENTERED this 7th day of February, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 7th day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6775BID The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 11 of the Recommended Order. The proposed findings of fact in paragraph 2 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 3 are rejected, in part, as being contrary to the weight of the evidence. The evidence failed to establish that the proposal submitted by Petitioner was superior to the proposal submitted by ETA. What action the School Board may have taken had Petitioner clearly stated its proposal is speculative. The proposed findings of fact in paragraph 4 are adopted in part by paragraph 9 of the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. While Mr. Boekhoff did contact ETA during the evaluation period regarding its organizational structure, there is no contention that such contact was improper. The proposed findings of fact in paragraph 5 are rejected as being conclusions of law instead of findings of fact. The proposed findings of fact in paragraph 6 are rejected as being subordinate to the findings made in paragraph 10 of the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made in Paragraph 13 or as being conclusions of law and not findings of fact. 8-10. The proposed findings of fact in paragraphs 8-10 are rejected as being conclusions of law and not findings of fact. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent: The proposed findings of fact in paragraph 1 are adopted in part by paragraph 1 of the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 11 of the Recommended Order. The proposed findings of fact in paragraph 3 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 5 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 7 of the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 10 of the Recommended Order. COPIES FURNISHED: Donald R. Fountain, Jr., Esquire Lytal & Reiter 515 North Flagler Drive Post Office Box 024466 West Palm Beach, Florida 33402-4466 Robert A. Rosillo, Esquire School of Palm Beach County 3970 RCA Boulevard Suite 7010 Palm Beach Gardens, Florida 33410 Thomas J. Mills Superintendent of Schools The School Board of Palm Beach County, Florida Post Office Box 24690 West Palm Beach, Florida 33416-4690
The Issue Whether Respondent, a "seller of travel," owes Petitioner $5,400.00 for failing to provide services to Petitioner pursuant to a contract between the parties.
Findings Of Fact WIN is a "seller of travel" as defined by section 559.927(11), Florida Statutes. On January 31, 2016, Petitioner and her sister, Julie Loftus, attended an Italian festival in St. Lucie County where they both entered a drawing to win a free "getaway" vacation. The sisters were contacted within a few days and told they had won, but to collect their prize, they had to attend a meeting at a Holiday Inn in Port St. Lucie. On February 13, 2016, the sisters attended the presentation that was put on by WIN. They were provided a brochure regarding the travel services offered by WIN and were impressed by the presentation. WIN offered a "lifetime of worry- free travel at your fingertips" with travel software to provide 24/7 access to booking, and significant discounts on travel services, such as hotel stays, cruises, excursions, dining, car rentals, and access to a "live personal travel concierge." The software does not provide on-line booking for airfare, private homes, yacht, or recreational vehicle rentals. Although neither sister is adept at using the Internet or computers, they were very interested in having a personal travel concierge, particularly because they intended to travel to Rome later in the year. After the presentation, they jointly purchased and executed a "Reservation Services Software Licensing Agreement" (Agreement) for a "lifetime License Fee" of $5,400.00. The price included a $1,000.00 discount in lieu of a certificate for a free "getaway" that the sisters had won. In pertinent part, the Agreement provides: This Agreement is made with reference to the following facts: A The Licensee desires to license software from the Licensor to obtain access to vacation packages, nightly stays, bonus weeks, fantasy getaways, activities and excursions, cruises, car rentals, golf discounts, hotels and luxury condominium and villa rentals. The Licensee acknowledges that the network benefits may be changed from time to time. * * * 6 Annual Software Renewal Fee. In addition to the purchase price, the Licensee does hereby agree to pay an Annual Software Renewal Fee of $199 to SaveOn Resorts, LLC (whose phone number is 858-649- 1481), with the first payment to be paid twelve (12) months from the purchase date of this Licensing Agreement. . . . a. Freeze Option. The Licensee acknowledges that they have the option to freeze their license. By doing so, they understand that although their License is Lifetime, during the freeze period, they will not have access to the website or Reservations Hotline. The Licensee may freeze their license without penalty by contacting SaveOn Resorts at least 7 days prior to their Annual Renewal Fee due date. * * * Discount Variation. All benefits and discounts conferred through this Agreement vary greatly based on the characteristics of the vacation unit or type, the time of year, space availability, and/or the rates charged by those parties listing the accommodations for rent. The Licensee acknowledges that he/she has been advised that while some discounts may be significant, these same accommodations may not enjoy deep discounts at other times and that deep discounts are not available for some vacation units or types at any time. The Licensee acknowledges that the value in this License is expected to be realized over time and that the License Fee is not guaranteed to be recovered on a single vacation, the first year, if the Licensee does not take vacations, or if the vacation choices are not tailored to deep discount offerings, but rather are contingent on the frequency of the use of the software. Assistance of Personal Live Travel Concierge and Website Access. The Licensee shall be provided 24 hour access to the internet website www.planwithWIN.com and may book travel arrangements through this website 24 hours a day, 7 days a week, with the exception of those travel arrangements which require the coordination of booking assistance with travel vendors, such as cruise lines. The Licensee shall also be provided access to a Personal Live Travel Concierge Agent at 1-858-649-1481 during the hours of 9am through 9pm EST, Mondays through Fridays, and 10am through 4pm EST, Saturdays, at no additional charge. The hours of availability for the Live Travel Concierge Agent are subject to change without notice. * * * 11 Live Online Software Demonstration and Tutorial. The Licensee acknowledges that he/she has had direct access to, including a live demonstration online, and a complete tutorial covering usage of the software program operation prior to the execution of this Agreement and was able to review the benefits with a sales agent of the Licensor. The Licensee acknowledges that they are comfortable with the operation of online software program. The Licensee acknowledges that the licensor has informed him/her that at any time during normal business hours, the Licensee may also call SaveOn Resorts at (858)649-1481 to schedule an additional tutorial for assistance with the operation of the software at no additional cost. On February 18, 2016, Petitioner and her sister spoke by telephone to Dae Byun, WIN's Member Services Agent, who walked them through the online software tutorial. By the end of the call with Mr. Byun, the sisters were familiar with the software capabilities and how to use it. Mr. Byun asked the sisters if they knew where their first trip would be. They explained that they intended to travel to Rome in August or September 2016 to attend a ceremony at the Vatican for a friend who was celebrating his 50th anniversary as a priest. Mr. Byun told the sisters that when they call to make travel arrangements, they should dial his direct line in Orlando because he had been a travel agent for over 30 years, was very familiar with Italy, and could easily assist them. Mr. Byun told the sisters that when they called, they should speak exclusively with him and that he worked Monday through Friday, and was not available on weekends. Because both sisters are retired, these arrangements were fine with them. During this same call, the sisters asked Mr. Byun to begin working on their flight from Philadelphia to Rome on August 31, 2016. They advised that they did not need hotels in Rome because a friend had made arrangements for them to stay in a convent bed-and-breakfast. However, they sought hotels in Venice and Florence on September 9 and September 18 through 22, 2016, respectively. Mr. Byun spoke knowledgeably about hotels and travel in Italy, and the sisters were pleased. Petitioner used WIN's personal travel concierge to book a one-night hotel room stay at a Microtel in Leesburg, Florida, for $65.00 during the week of February 27, 2016. During the months of March and April 2016, the sisters made multiple calls to WIN's Orlando office in an attempt to speak with Mr. Byun to schedule their Rome trip. Most times they called, they were told he was out of the office or training new customers on the software. Because of Mr. Byun's initial instruction to speak only to Mr. Byun regarding the trip to Rome, they did not want to speak with another member services agent for this trip. On or about March 23, 2016, Petitioner also called to arrange a rental cabin in the North Carolina Mountains for a girlfriends' gathering. Petitioner was told that WIN did not have access to discounts and reservations for private cabins, but she was provided information on a condominium and hotel room options in the area. Because Petitioner found the choices provided by WIN unsuitable for her group, she chose to make her own arrangements. During March and April 2016, the sisters spoke to Mr. Byun regarding the Italy trip once or twice. WIN sent four e-mails to the sisters on April 15 with a tentative flight schedule, hotel options, and train information for Italy. The sisters were not pleased with the initial flight itinerary because it called for a layover on the way from Philadelphia to Italy. They were concerned that their luggage was more likely to be lost with a layover and asked for a direct flight. According to Petitioner, her sister had a follow-up conversation with Mr. Byun during which she selected a direct flight, provided credit card information, and asked him to book the flight. Mr. Byun testified that he was told at that time that they were not sure of their travel dates. This was a preliminary search only. He has no notes reflecting credit card or any additional information he would have needed to book the flight, such as dates of birth, passport numbers, frequent flyer account numbers, and seat preferences. Mr. Byun credibly testified that if he booked airline tickets, that would be done in one phone call with the client on the line because airfares change within minutes. Mr. Byun would not quote an airfare with the intention of booking a flight at a later time, even on the same date. Mr. Byun had no further conversation with the sisters regarding the Italy trip. According to Petitioner, on May 24, 2016, her sister received her credit card statement and realized there was no charge for airline tickets. The sisters were panicked because they had learned Mother Teresa was being canonized a saint in Rome at the same time as their trip and flights and hotels were filling up quickly. The sisters attempted to reach Mr. Byun by telephone to demand an explanation. Although they did not reach Mr. Byun, another WIN employee explained that there was no record of reservations of the proposed trip to Italy. Within a few days, the sisters opted to use the services of AAA to book the trip to Italy. The sisters sent a letter by e-mail on May 31, 2016, expressing their extreme disappointment and asked "What are we paying you for?" They received no response. They subsequently used the services of the Glanz law firm to send WIN a demand letter seeking a refund of the $5,400.00. They also filed a complaint with the Better Business Bureau and the Department. Petitioner and her sister traveled to Italy and Greece from August 31 through September 23, 2016, without the assistance of WIN. Beginning in February 2017, Petitioner's sister began receiving correspondence and frequent automated calls from WIN that their annual maintenance fee of $199.00 is due. Although Petitioner and her sister have made their intention clear that they do not wish to use the services of WIN going forward, they have not asked to "freeze" their account as is provided for in the Agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner Alice Kenyon's claim against WIN and the surety bond be DENIED. DONE AND ENTERED this 8th day of August, 2017, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 8th day of August, 2017. COPIES FURNISHED: W. Alan Parkinson, Bureau Chief Bureau of Mediation and Enforcement Department of Agriculture and Consumer Services Rhodes Building, R-3 2005 Apalachee Parkway Tallahassee, Florida 32399-6500 (eServed) Tina Robinson Bureau of Mediation and Enforcement Department of Agriculture and Consumer Services Rhodes Building, R-3 2005 Apalachee Parkway Tallahassee, Florida (eServed) 32399-6500 Alice B. Kenyon 5668 Travelers Way Fort Pierce, Florida 34982-3989 (eServed) Kenneth Hamner, Esquire The Entrepreneur Law Center, P.L. 250 North Orange Avenue, Suite 600 Orlando, Florida 32801 (eServed) Tom A. Steckler, Director Division of Consumer Services Department of Agriculture and Consumer Services Mayo Building, Room 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Stephen Donelan, Agency Clerk Division of Administration Department of Agriculture and Consumer Services Mayo Building, Room 509 407 South Calhoun Street Tallahassee, Florida 32399-0800 (eServed)
