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, Edmund Houze, has filed a claim against the bond for $348.00 alleging that Passport failed to perform on certain contracted services. In response to a promotion run by an Augusta, Georgia merchant, petitioner filled out a card for a "free" trip to the Bahamas, plus four days accommodation in Daytona Beach and Orlando. Thereafter, he was contacted by Caribbean Sun Tours (CST), a telemarketeer operating out of Tampa, Florida. During his conversation with a CST representative, petitioner was told that if he could not confirm his requested travel dates, his money would be refunded. On November 6, 1990, petitioner agreed to buy a travel certificate entitling the holder to a five-day, four-night vacation package to the Bahamas, plus four nights lodging in Florida. The certificate cost $399.00, and petitioner sent a check in that amount to CST. The certificate issued by CST carried the name, address and logo of Passport. At hearing, Passport contended that CST had "got hold" of some of Passport's travel certificates from another telemarketeer and was reselling them to travelers without Passport's authorization. Passport conceded, however, that it honored all certificates sold by CST, including petitioner's certificate. Accordingly, it is found that CST was acting as an agent on behalf of Passport. On June 1, 1991, petitioner sent Passport a deposit in the amount of $140.00 with his reservation for the cruise and land accommodations. He selected August 5-8, 1991, as the dates on which he desired to travel to Florida. He was told by Passport that the dates were unavailable. Further efforts by petitioner to find an acceptable date for travel were unsuccessful. At that point, and consistent with the representation made by Passport's agent, petitioner requested a refund of his money. He also filed a complaint with the Department. Passport agreed to refund petitioner the $140.00 deposit. Passport has denied liability for the remaining $348.00 on the theory that CST never sent it the money, and that company has gone out of business.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and that he be paid $348.00. DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1994. COPIES FURNISHED: Edmund Houze Route 1, Box 481 Reidsville, Georgia 30453 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue On September 22, 1994, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, Bureau of Timeshare issued a notice to show cause to Erni Hirsch alleging that Ms. Hirsch violated various provisions of Chapter 721, Florida Statutes, regarding vacation and timeshare plans. Specifically, the agency charged that Ms. Hirsch sold multiple timeshare periods as a "successor developer" or "concurrent developer" without providing required notices and filings. The issue is whether the violations occurred and, if so, what penalties and remedial action are appropriate.
Findings Of Fact Erni Hirsch resides in Hollywood, Florida. She has a bachelor's degree in elementary education and a master's degree in public administration, and she has completed a doctorate program in public administration. Prior to 1973, Ms. Hirsch was an elementary school teacher and worked on curriculum for Dade County public schools. From 1973 through 1993, she worked for the Seminole Tribe of Florida setting up adult schools on the reservations, doing grant development and then acting as business manager for the tribe. She was employed full-time by the tribe and worked sometimes sixty to seventy hours a week. She now considers herself retired. Ms. Hirsch is married and has three grown children. The family used to go camping, but in the mid-1980's Ms. Hirsch began purchasing timeshare periods for the family's vacations. She initially purchased a timeshare period in the Hollywood Beach Tower, where she lives, and used it for a beach club and to trade for timeshare periods elsewhere. Ms. Hirsch continued purchasing timeshare periods, upgrading them into better exchange groups. She purchased timeshare periods in other plans, in other cities in Florida and sold them or she traded them in exchange clubs for her personal use and that of her family and friends. While she initially sold timeshares to family and friends, she eventually started advertising timeshare periods in the newspaper, giving her name and home telephone number to contact. In response to inquiries, she sent lists of the various timeshare periods she owned; she also sent letters or information sheets explaining the concept of timesharing and the exchange programs. When she had purchasers, she suggested they get representation by an attorney or title company. She did not receive escrow deposits and did not maintain an escrow account. Any escrow money was held by the attorney or title company. In some cases when purchasers changed their minds before closing, Ms. Hirsch let them have their money back. She never received complaints from purchasers and does not know whether the Department of Business and Professional Regulation (agency) received complaints. As stipulated by Ms. Hirsch, she owned and transferred title from herself to others in thirty-eight timeshare periods in twenty-one timeshare plans, as follows: HOLLYWOOD BEACH HOTEL AND TOWER Project No. PRXI000584: M. Racoma and Helen T. Racoma, No. 305, Wk 25, Deed Recorded 10/11/91 Rolando V. and Concepcion Barcenilla, No. 305, Wk 26, Deed Recorded 10/11/91 HOLLYWOOD BEACH HOTEL Project No. PRXI000186 Jack Sweetser and Virginia Sweetser, No. 604, Wk 22, Deed Recorded 10/4/91 Michael Mikola, No. 603, Wk 27, Deed Recorded 10/23/91 WESTGATE VACATION VILLAS, PHASE I Project No. PRTI000603 Gregory M. Makozy and Maria Makozy, No. B-04, Wk 45, Deed Recorded 9/21/93 Danielle Hirsch, No. A-08, Wk 24, Deed Recorded 2/23/94 WESTGATE VACATION VILLAS, PHASE III Project No. PRTI000608 Paul A. Pritchard and Faith M. Pritchard, No. L9, Wk 13, Deed Recorded 7/23/93 WESTGATE VACATION VILLAS, PHASE IV Project No. PRTI000609 Leonard A. and Louise E. Bussiere, No. K-09, Wk 6, Deed Recorded 4/7/92 WESTGATE VACATION VILLAS, PHASE V Project No. PRTI000610 Sanford Hirsch, No. J-09, Wk 36, Deed Recorded 4/13/94 Ronald T. and Helen D. Reichenbaum, No. G-06, Wk 51, Deed Recorded 11/19/92 WESTGATE VACATION VILLAS, PHASE VII Project No. PRTI000612 Roger L. Deskins, No. P-05, Wk 7, Deed Recorded 4/22/93 Anthony B. and Valerie A. Leatheart, No. X-10, Wk 52, Deed Recorded 2/13/92 WESTGATE VACATION VILLAS, PHASE IX Project No. PRTI000565 Richard D. Penner and Lorna R. Penner, No. U-10, Wk 21, Deed Recorded 3/25/93 Danielle Hirsch, No. V-05, Wk 31, Deed Recorded 2/23/94 Leo and Moreen T. Blanchette, No. T-08, Wk 39, Deed Recorded 9/24/92 WESTGATE VACATION VILLAS, PHASE XI Project No. PRTI000651 Richard and Eileen Wells, No. Q-11, Wk 22, Deed Recorded 1/22/92 RESORT WORLD OF ORLANDO, PHASE I Project No. PRXMI00376 Mitchel Vogel and Bonnie Vogel, No. B-105, Wk 45, Deed Recorded 1/8/93 Delores Miller, No. 212, Wk 46, Deed Recorded 12/23/92 R. P. and M. O. Gardiner, No. B-107, Wk 44, Deed Recorded 7/27/92 R. P. and M. O. Gardiner, No. A-115, Wk 43, Deed Recorded 7/27/92 Annette Carmona, No. C-211, Wk 33, Deed Recorded 9/23/92 Philip J. and Shelagh M. Price, No. 214, Wk 14, Deed Recorded 9/23/92 RESORT WORLD OF ORLANDO, PHASE II Project No. PRXMI00620 Phase II (A) Peter J. and Madeline A. Nolan, No. A-217, Wk 29, Deed Recorded 9/22/92 Phase II (B) George P. and Karen L. Wong, Trustees, No. E-222, Wk 52, Deed Recorded 7/92 Phase II (C) Gregory P. and Carol Gordon, No. C-234, Wk 23, Deed Recorded 8/7/91 Phase II (G) Lillie R. Long, No. 274, Wk 41, Deed Recorded 11/5/92 THE OAKS AT RESORT WORLD, PHASE IV Anthony M. and Debra A. Kozar, No. 425, Wk 15, Deed Recorded 12/2/92 THE SPAS AT RESORT WORLD, PHASE V Mark J. Wilma, Anna E. Wilma, William K. Zelenc and Nicolett J. Zelenc, No. 527, Wk 11, Deed Recorded 6/24/93 CLUB SEVILLA Horace Curry and Sandra E. Curry, No. 321, Wk 44, Deed Recorded 9/20/91 HIGH POINT WORLD RESORT, PHASE I Marc Van Hove, No. 105, Wk 41, Deed Recorded 3/12/92 VISTANA FALLS CONDOMINIUM Robert L. and Hein T. Hopkins, No. 220, Wk 24, Deed Recorded 11/11/93 John T. and Deborah L. Ryan, No. 208, Wk 36, Deed Recorded 7/13/93 VISTANA CONDOMINIUM Project No. PRXPI00605 Prabhas and Madulika Kejriwal, No A-12, Wk 27, Deed Recorded 5/21/93 ORANGE LAKE COUNTRY CLUB VILLAS Project No. PRXPI00325 James O. and Hildegard J.L. Buss, No. 225, Wk 51, Deed Recorded 9/7/93 CLUB ORLANDO VACATION RESORT I Project No. PRTI000652 Mitchel and Bonnie Vogel, No. 144, Wk 18 (even years), Deed Recorded 1/8/93 SAND AND SURF, A CONDOMINIUM Project No. PRXMI00398 Clearwater Properties, Inc., No. 255, Wks 51/52, Deed Recorded 8/3/90 SEVEN SEAS, A CONDOMINIUM Project No. PRXI000431 Bing S. Laj, No. 310, Wk 51, Deed Recorded 10/6/89 Barbara Uzmack, No. 108, Wk 32, Deed Recorded 8/29/88 Each of the timeshare plans is located in the State of Florida. Except for the two grantees named Hirsch, there is no evidence of kinship between Ms. Hirsch and the purchasers. At all times material to the allegations of the order to show cause, each of the timeshare plans was comprised of more than seven timeshare periods over a period of at least three years. The initial purchase price was $1,000 or more in thirty-four of the timeshare periods sold by Ms. Hirsch; in four periods the purchase price was less than $1,000. For each timeshare period the purchaser from Ms. Hirsch was contractually and statutorily obligated to pay a recurring maintenance fee. Ms. Hirsch's income from her sales of timeshare periods was: YEAR TIMESHARE GROSS INCOME TIMESHARE NET INCOME 1995 $ 7,000 ($2,000) 1994 $ 70,000 ($3,000) 1993 $ 75,000 $3,893.02 1992 $109,000 $5,981.12 1991 $ 25,000 $ 500.00 Ms. Hirsch stipulates that, as charged in the notice to show cause with respect to the timeshare periods she offered and sold, she: did not file any public offering statements with the Petitioner for review and approval with respect to the timeshare periods and timeshare plans prior to offering them to the public; did not provide her timeshare purchasers with a public offering statement that had been approved by the Petitioner with respect to the timeshare periods and timeshare plans prior to closing on sales; did not establish an escrow account with an approved escrow agent as to each timeshare plan; did not at any time place all funds or other property received from or on behalf of purchasers into an escrow account with respect to the timeshare plans; closed on sales of the timeshare periods prior to providing her timeshare purchasers with an approved public offering statement; and did not provide Petitioner with the names and addresses of the persons to whom she had sold timeshare periods. During the relevant period Ms. Hirsch did not incorporate as a business, maintain an office outside of her home, maintain a business telephone, or otherwise operate in other than her own individual capacity. Where she lives she is not permitted to operate an office out of her home. The agency began investigating Ms. Hirsch's timeshare sales activities upon complaint from Michael Lucas of American Timeshare Resales, in the Orlando/Kissimmee area. Sometime in 1993, Ms. Hirsch received a notice of the agency's investigation. After being informed of the agency's concern, Ms. Hirsch contacted someone in Orlando with the Department of Business and Professional Regulation's Division of Real Estate. From that contact she understood that she was not subject to regulation as long as she was selling timeshare periods that she owned herself. She also contacted an attorney whom she understood specialized in condominium and timeshare law. She received an opinion letter from another attorney in the same firm, Becker and Poliakoff, P.A. The letter stated that arguably she was not a successor or concurrent developer because she purchased her timeshare periods from individuals who were not themselves developers. The letter concluded there were no cases directly on point and the agency might claim that her sales in the ordinary course of business qualified her as a developer. (Respondent's exhibit no. 2) When the agency did, indeed, pursue its administrative enforcement action, Ms. Hirsch ceased buying and selling timeshare periods. At the time of hearing she had two left, which she used, and she disavowed any further interest in acquiring more. Considering the totality of the facts and circumstances, it is evident that what started as a family vacation program developed into a business pursuit. It is impossible to ignore the volume of the timeshare periods being sold, the active advertising campaign and the gross income being generated (over $100,000 in one year, 1992). The fact that there were net losses or very small net gains only establishes that large sums were being spent in the enterprise. The evidence belies any claim that all of the timeshare periods were acquired by Ms. Hirsch for her own occupancy, even if the trades for other periods in other plans are considered. Ms. Hirsch did not intend to commit any violations and she did not intend to deprive her purchasers of their statutory rights. As a layperson, albeit well-educated and experienced in financial matters, she obviously never considered herself a "developer" of any sort; she relied on advice of counsel in that regard as well. It is evident that Ms. Hirsch unwittingly slipped within the regulatory reach of timeshare law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Business and Professional Regulation enter a final order finding that Ms. Hirsch violated Sections 721.07, 721.08 and 721.10, Florida Statutes, and ordering that she cease and desist. DONE and ENTERED this 21st day of February, 1996, in Tallahassee, Florida. MARY CLARK, 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 21st day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0951 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Adopted in substance in paragraph 5. 4.-5. Adopted in paragraph 6. 6. Adopted in paragraph 7. 7.-10. Adopted in paragraph 8. Accepted as a conclusion of law. Adopted in paragraph 9. Accepted, but unnecessary. The figures speak for themselves. 14.-16. Adopted in substance in paragraphs 5 and 15. 17.-18. Rejected as argument, but incorporated in part in conclusions of law. Rejected. Respondent's testimony is credited, but only to show that she made some attempts to determine her legal obligations. It is accepted that the Division of Real Estate does not regulate timeshares; it does, however, regulate persons who sell or offer to sell real property. Adopted in paragraph 13. 21.-23. Adopted in part in paragraph 13; otherwise rejected as argument or unnecessary. 24. Adopted in substance in paragraph 15. 25.-26. Rejected as unnecessary. Adopted in paragraph 10. Adopted in paragraph 5. Respondent's Proposed Findings of Fact. 1. Adopted in substance in paragraph 2. 2.-3. Adopted in paragraph 3. Rejected as unsubstantiated by the evidence (as to whether she contacted any agency prior to reselling any timeshare period). Accepted that she understood that to be the agency's response. See paragraph 13. 6.-10. Adopted in substance in paragraph 5. 11. Adopted in substance in paragraph 11. 12.-14. Rejected as unnecessary. Adopted in paragraph 12. Rejected as unnecessary. Adopted in paragraph 12, except that she received notice sometime in 1993. 18.-19. Adopted in part in paragraph 13. The opinion letter was more equivocal than characterized in this proposed finding. Rejected as contrary to the weight of evidence. Respondent did not contact counsel until after she was contacted by the agency. Rejected as contrary to the evidence. The purchase price, only, was less than $1,000. 22.-23. Rejected as contrary to the evidence. 24.-25. Addressed in conclusion of law no. 26. COPIES FURNISHED: Laura L. Glenn, Senior Attorney Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Tracy Hirsch, Esquire John Militana, Esquire Militana, Militana and Militana, P.A. 8801 Biscayne Boulevard, Suite 101 Miami Shores, Florida 33138 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 W. James Norred, Acting Director Department of Business and Professional Regulation Division of Florida Land Sales, Condominiums and Mobile Homes Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Robert F. Boles, has filed a claim against the bond for more than $1,000.00 alleging that Passport failed to perform on certain contracted services. On an undisclosed date in 1990, petitioner purchased a travel certificate from Passport entitling the holder to four nights lodging at the Lucayan Beach Resort and Casino in Freeport, Bahamas, which Passport described as "the nicest property on the beach." Petitioner used his certificate to travel with his wife and two children to Freeport on April 1, 1991. The room to which petitioner was assigned did not have hot water. Petitioner was offered a different room with a less desirable view, but the hot water was not working in that room, and the room had not been cleaned since the prior guest had departed. Since the hotel was otherwise fully booked, petitioner decided to keep his original room, but says he had no hot water during his entire four-night stay. Besides a lack of hot water, the cable television connector was not repaired until the second day, the room air- conditioner was "noisy," and the bed sheets were not changed during the entire stay. As to the latter deficiency, petitioner says this was particularly galling since one of his children had chicken pox while on the trip. He acknowledged that he never requested the house cleaning department to change the sheets but says he had no responsibility to do so. Finally, the burned-out light bulb in the room lamp was never replaced. Whether petitioner asked that it be changed is not of record. When he checked out of the hotel, petitioner expected an adjustment on his bill but received none. Because of the foregoing problems, petitioner asks that he be refunded in excess of $1,000.00, which he says represents his costs incurred on the trip. According to the evidence, petitioner paid a $90.00 deposit to Passport in October 1990, plus $692.90 for upgrades to better accommodations, additional services and taxes in February 1991. The record does not show what portion of the $692.90 pertains to the upgraded accommodations. The derivation of the remaining part of petitioner's claim is unknown. The hotel's version of what occurred is found in a letter dated July 5, 1991, but it is hearsay in nature. It does corroborate other evidence that the hotel offered petitioner an apology, gave his family a free meal one evening, and attempted (albeit unsuccessfully) to resolve the problems.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be approved, and he be repaid $346.45 from the bond. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1994. COPIES FURNISHED: Robert F. Boles 1522 Ohio Avenue Palm Harbor, FL 34683 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, FL 32399-0810
The Issue Whether the subject lease should be awarded and, if so, whether the award should be to Petitioner or to Intervenor.
Findings Of Fact State Road 5 (US Highway 1) runs through Windley Key, Monroe County, Florida. Florida Department of Transportation (FDOT) District 6, headquartered in Miami, has direct operational responsibility for this highway and its adjacent right-of-way. Holiday Isle Resort and Marina, Inc. (Holiday Isle) is a corporation that owns and operates various facilities located adjacent to one another on Windley Key which offer lodging, food, beverages, entertainment, and recreation. These facilities, located easterly of State Road 5, attract a large number of patrons in automobiles. Because of a lack of parking on the Holiday Isle properties, many people have, over the past few years, parked their vehicles across State Road 5 from the Holiday Isle properties on the right-of-way that was unimproved when the request for proposal was issued. Over this time, FDOT and Holiday Isle had an informal agreement giving Holiday Isle the use of this area for overflow parking. Upwards of 400 automobiles have been parked on this right-of-way area across from the Holiday Isles properties. FDOT knew that Holiday Isle patrons and others were parking on this right-of-way area and was aware that this parking arrangement had created a tremendous traffic hazard. Numerous accidents, including fatalities, have occurred over the years involving motor vehicles pulling on and off State Road 5 and pedestrians crossing the road to and from the Holiday Isle properties. In an effort to reduce the hazardous conditions in this area, FDOT decided to lease the right-of-way for motor vehicle parking pursuant to the authority given FDOT by Section 337.25, Florida Statutes. This was the first time that District 6 of FDOT had attempted to procure a lease of this type. On September 23, 1989, FDOT placed an advertisement in appropriate Monroe County newspapers under the heading "Call for Bids". The advertisement advised that sealed bids for the lease of certain described lands would be received by FDOT at 11:00 a.m. on the 29th day of December, 1989. The lands described by the advertisement was for a substantially larger tract of land than the final tract of land described in the Request for Proposal. The advertisement gave notice that "No bid will be considered unless it is submitted on the official Proposal Form provided by the Department of Transportation". The name and address of the person from whom bidders could obtain the forms and information about the project was provided. The advertisement also contained the statement: "The Department reserves the right to reject any or all bids and to waive technical errors as may be determined best for the interest of the State." This was the only advertisement that was published for this project. Petitioner Red & White Investments, Inc. (Red & White) is a corporation organized to make investments. Paul Brumm was one of the shareholders of Red & White and was authorized to act on behalf of the corporation in pursuing the lease that is the subject of these consolidated cases. Joseph Roth was an officer of Intervenor Holiday Isle and was authorized to act on behalf of the corporation in pursuing the lease that is the subject of these consolidated cases Red & White and Holiday Isle were the only two entities to contact FDOT in response to the advertisement. FDOT determined that the legal description it had. used in its published advertisement was incorrect, advised them of the error, and delayed the issuance of its RFP until after its corrected that erroneous legal description. In March, 1990, FDOT corrected the legal description and issued its RFP to Red & White and to Holiday Isle. The RFP contained a metes and bounds description and referred to the land to be leased as being "Parcel 6003.B" and as containing 3.596 acres, more or less. The RFP was a package of three separate documents. The first document was a standard "State of Florida Request for Proposal Contractual Services Acknowledgment Form" (RFP Form) with certain deletions and additions. The second document consists of four pages entitled "Information for Prospective Bidders" (Information Document) and contains information about the subject project and constitutes special conditions applicable to the procurement. The third page is a three-page document headed "Lease Agreement" (Lease Form). Attached to the Lease Form are two exhibits: Exhibit A being a revised legal description of the parcel to be leased and Exhibit B being the page to which the bidder was to attach its conceptual site plan. The RFP Form contained general and special conditions. Among the general conditions was the following: As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any minor irregularity or technicality in proposals received. Proposers are cautioned to make no assumptions unless their proposal has been evaluated as being responsive. There was no restriction stated by the RFP as to the number of proposals a proposer could submit. The RFP Form contained the following statement: SEALED PROPOSALS: All proposal sheets and this original acknowledgment form must be executed and submitted in a sealed envelope. (DO NOT INCLUDE MORE THAN ONE PROPOSAL PER ENVELOPE.) The face of the envelope shall contain, in addition to the above address, the date and time of the proposal opening and the proposal number. ... In the special requirements section of the RFP Form, proposers were required to state the amount being offered to pay for the lease on an annual and on a monthly basis, and were told to submit a "Conceptual Site Plan" as part of the proposal. Proposers were also advised that the land to be leased was vacant and was to be leased "as is", without any representations as to its suitability for any particular use or its qualification for any permits or licenses. All development had to be in conformity with all local, state, and federal laws. The Information Document constituted special conditions applicable to this procurement. Among the special conditions found in the Information Document are the following: BID FORMS: The Department of Transportation will not consider a bid to lease subject land unless it is submitted on the official "Request For Proposal - Contractual Services" form provided by the Department of Transportation. * * * MINIMUM ACCEPTABLE BID: The minimum acceptable bid shall be $58,825.00 per annum. (This requirement was subsequently changed as discussed below.) TERMS: The bid proposal shall specify the amount of monthly rent the bidder is proposing to pay. Payment in full of that amount shall be due and payable at the Lessor's office mentioned above on the first day of May, 1990, and on the first day of each succeeding month for the term of the lease. * * * SUITABILITY: Subject parcel is leased "as is" and the Lessor makes no representation regarding the suitability of the subject land for any use. It is specifically understood that the Lessor makes no representation, guarantee or warranty that the subject land will qualify for any permits or licenses as may be required by any governmental agency having jurisdiction. * * * CONCEPTUAL SITE PLAN: Each bidder must submit with his bid documents a conceptual site plan indicating how they will use and develop the site. Such plan must show all proposed modifications, including all entrances and exits, lighting fixtures, pavement, drainage structures, fences and all other proposed improvements to State Road No. 5, including but not limited to traffic signals. The plan must state that overnight camping will be prohibited by Lessee. No bid will be considered if a conceptual site plan is not included as part of the proposal. The conceptual site plan document(s) will be referred to as Exhibit "B" of the bid proposal. The conceptual site plan submitted by the successful bidder will be incorporated into the final lease as Exhibit "B". CONSTRUCTION OF IMPROVEMENTS: It is specifically understood and agreed that the successful bidder will commence construction of improvements on the leased area, in conformity with the approved Conceptual Site Plan, on or before August 1, 1990. * * * PRE-BID CONFERENCE: All prospective bidders are invited to attend a meeting to be held at the Lessor's office listed above at 11:00 A.M. on Friday, April 6, 1990. The purpose of this meeting is to provide prospective bidders an opportunity to present any questions they may have concerning this bid. Representatives of the Lessor will be present to answer such questions. FORMS: Proposal, contract, and performance bond forms may be secured from this office. Corporate seals are required on bid proposals where applicable. BID AMOUNT: All bids received will be evaluated on the basis of the rental to be paid, and (sic) the merits of the conceptual site plan, and the impact on State Road 5. The RFP required only two specific pieces of information to be generated by the proposer - the statement of rents and the conceptual plan. These were the only portions of the responses evaluated for purposes of awarding the lease. The RFP does not explain the procurement other than to limit the use of the parcel to parking. Safety problems and the parking needs for the Holiday Isle properties are not specifically addressed by the RFP. However, both Mr. Brumm and Mr. Roth were familiar with the long standing problems that existed in the subject area and knew the purposes of the RFP. The pre-bid conference was held as scheduled on April 6, 1990, with only Red & White and Holiday Isle attending as interested bidders. One of the purposes of the pre-bid conference was to permit bidders to ask questions and seek clarification. Following discussions with FDOT officials, it was determined that the legal description included in the RFP package as Exhibit A to the Lease Form was erroneous and that not all of the proposed site was upland or usable as parking. This resulted in a letter from FDOT, dated April 8, 1990, changing the term related to the price by stating that "[u]sable land value for leasing purposes has been determined to be Thirty-Five Cents ($0.35) per square foot per year", and that "[a nominal value for unusable land has been set at One Tenth of One Cent ($0.001) per square foot per year." The legal description of the area to be leased was also changed to encompass 5.190 acres, more or less, rather than the 3.596 acres, more or less, set out in the original proposal package. The revised description included lands closer to the pavement edge of State Road 5 than did Exhibit A to the Lease Form. A portion of the designated area lies within environmentally protected wetlands, contains protected species of vegetation, or is otherwise not suitable for use as a parking lot. FDOT never attempted to calculate how much of the subject property was "usable" or "unusable" and it never instructed the potential bidders as how such calculation should be made. By its letter of April 8, 1990, FDOT effectively removed the requirement from the RFP that the minimum bid for the lease be $58,825.00. FDOT left it to each proposer to determine the amount of usable land and to apply a minimum rate of $0.35 per square foot for usable land and a minimum rate of $0.001 per square foot for unusable land. Red & White timely submitted its proposal, which consisted of a proposal to pay $42,000 per year in rent, a conceptual site plan, a cover letter, a cashier's check in the amount of $4,200 and a copy of a letter, dated April 11, 1990, from Andrew M. Tobin, counsel for Holiday Isle to Mr. and Mrs. Paul Brumm. Red & White's bid amount was based on its determination that there were 113,150 square feet of usable space, and that the balance of the area was unusable. In comparison, Mr. Cochrane estimated that the value of the lease, using the methodology employed by Red & White, was $40,000. This estimate was derived by Mr. Cochrane and was not an appraised value. There was no evidence that FDOT had performed a formal appraisal of this property. Holiday Isle timely submitted two proposals in two separately sealed envelopes marked, respectively, "No. 1" and "No. 2". On April 20, 1990, representatives of both Red & White and Holiday Isle attended at FDOT offices in Tallahassee the opening of the proposals submitted in response to the RFP. At this meeting to open the proposals, Mr. Cochrane, the FDOT employee responsible for the procurement of this project was handed two sealed envelopes on behalf of Holiday Isle. These envelopes were marked "No. 1" and "No. 2", respectively. Mr. Cochrane told Mr. Tobin and Joseph Roth, Holiday Isle's representatives, that he would only open one proposal from Holiday Isle. Holiday Isle's representatives, when asked by Mr. Cochrane which of the two envelopes Holiday Isle wanted him to open, selected the envelope marked "No. 2." FDOT then opened envelope No. 2. The other envelope submitted by Holiday Isle, envelope No. 1, was not opened for the purpose of evaluating the proposal. (At the formal hearing, Holiday Isle requested and received permission to have the previously unopened envelope opened for the purpose of retrieving the cashier's check submitted with the proposal.) When the proposals were submitted, Monroe County was in the process of conducting a "focal point plan" study, required by the Monroe County Comprehensive Plan, for a portion of Windley Key designated as the "Holiday Isle Area of Critical County Concern." The area encompassed the Holiday Isle properties as well as the subject right of way. The focal point planning was to address: Design and functional character of U.S. 1 within one-half mile of the area of critical county concern; The appropriate location, placement, and functionality of adequate off-street parking for patrons to access the Holiday Isle Resort to avoid stacking of vehicles on U.S. 1; and c. An ingress and egress plan for U.S. 1 that limited access to side roads that have adequate turning, acceleration and deceleration lanes. Because of the pending focal point. plan activity and objections expressed by the Florida Department of Community Affairs, FDOT, on May 8, 1990, decided to reject both proposals. In doing so, FDOT represented that it would begin a new solicitation process if the focal point plan approved by the County and by the Department of Community Affairs revealed that leasing the subject right-of-way would be appropriate. Holiday Isle initiated formal administrative proceedings to protest the Department's decision to reject all bids. As the result of negotiations involving Holiday Isle, FDOT and the Department of Community Affairs, Holiday Isle agreed to take over the focal point plan efforts. Holiday Isle also agreed that the conceptual plan it submitted to FDOT as part of its proposal could be used as part of the focal point plan. Thereafter, the conceptual plan that had been submitted by Holiday Isle with its proposal No. 2 was incorporated as part of the focal plan. FDOT agreed to recommence the procurement process. The formal bid protest was dismissed and FDOT notified Red & White and Holiday Isle on June 14, 1990, that it would make its decision as to the award of the lease on June 19, 1990. FDOT appointed a committee consisting of three of its employees to evaluate the merits of the conceptual site plan submitted by Red & White and the Holiday Isle proposal No. 2. Mr. Cochrane was responsible for doing the economic evaluation of the proposed rents. The evaluation committee that reviewed the conceptual site plans was unaware that the Holiday Isle proposal contained a modified lease agreement but Mr. Cochrane was aware that the lease had been modified. The Holiday Isle proposal that had been contained in envelope No. 2 was recommended on June 19, 1990, by FDOT to receive the lease. This proposal consisted of a proposal to pay a conditional sum of $60,000, plus 10% of gross revenues per year, a certificate of insurance, a conceptual site plan, a "Holiday Isle Traffic and Parking Study," a lease, a cover letter, and a cashier's check in the amount of $20,000. The proposal did not state how gross revenues would be determined. Mr. Cochrane had not gotten a legal opinion as to the import of the changes made to the lease by Holiday Isle prior to the award being announced. He evaluated the proposed rents upon the annual rental shown by each proposal. Mr. Cochrane did not consider that the amount of Holiday Isle's proposed rents could be affected by a modification Holiday Isle made to the Lease Form, and he did not know how much money 10% of gross revenue would entail. In evaluating the merits of the respective conceptual plans, the evaluation committee considered that Holiday Isle would run a shuttle service to include the leased area, but that shuttle service was not included in the Holiday Isle proposal. On June 21, 1990, Red & White filed a timely protest of FDOT's intended selection of the Holiday Isle proposal. Holiday Isle did not timely protest FDOT's decision to open only one of its proposals. The lease proposal submitted by Holiday Isle as part of its response to the RFP contained material revisions to the Lease Form contained in the RFP package. Mr. Cochrane, the FDOT employee responsible for procuring the subject lease and for communicating with potential proposers, was of the opinion that the terms of the Lease Form could not be varied. Mr. Cochrane recommended to a representative of Red & White that no changes should be made to the lease form and that a proposer would run the risk of being disqualified if the terms of the lease were revised. Counsel for Holiday Isle was advised by Barbara Hobbs, FDOT counsel, not to revise the lease because FDOT counsel did not have time to review a revised lease. The RFP package does not specifically address whether a proposer may submit a modified lease as part of its proposal. It is clear, however, that Red & White relied on the statement and recommendation of Mr. Cochrane in determining not to make revisions to the lease, while Holiday Isle submitted a lease with revisions that are to its advantage. The revisions made to the lease by Holiday Isle were not minor irregularities. The changes to the Lease Form are in paragraphs 1, 3, 5, and 6 and deal, respectively with the term of the lease, the time of commencement of improvements, the payment of consideration and the adjustment of the amount of consideration depending on a future determination of usable versus unusable area, and termination. In each instance, the terms of the Lease Form was revised by counsel for Holiday Isle. Paragraphs 1, 3, 5, and 6 of the Lease Form are as follows: 1. Lessor does hereby lease unto Lessee the lands described in Exhibit "A attached hereto and made a part hereof, for a period of five (5) years beginning with the date of this agreement. Renewal of this Agreement from year to year shall be automatic until such time as terminated. 3. The Lessee hereby agrees that he will commence improvement of the leased area in conformity with the approved Conceptual Site Plan on or before August 1, 1990. Lessee shall pay the rent to Lessor in advance on the first day of each month, beginning May 1, 1990. When this Agreement is terminated, the unearned portion of any rent payment shall be refunded to Lessee. This agreement may be terminated by either party upon thirty (30) days written notice to the `other party. Paragraphs 1, 3, 5, and 6 of the revised lease submitted by Holiday Isle are as follows: 1. Lessor does hereby lease unto Lessee the lands described in Exhibit "A," attached hereto and made a part hereof for a period of five (5) years beginning with the date of this agreement. The term of this Agreement shall be automatically renewed and extended for an additional five (5) year Thereafter, this agreement shall be renewed from year to year unless otherwise provided by law or terminated as provided herein. * * * 3. The Lessee hereby agrees that it will commence improvement of the leased area in conformity with the approved Conceptual Site Plan on or before August 1, 1990. Because the parties anticipate certain delays for permitting, the parties agree that the commencement date shall be extended provided that Lessee is exercising good faith and due diligence to obtain permits as required by paragraph 13 of this lease. In the event that Lessee fails to exercise good faith and due diligence to secure the permits, Lessor, at its option, may declare Lessee in default of this agreement. * * * 5(a). Lessee shall pay to Lessor, as fixed annual rent, the sum of $59,941.90 for 3.860 acres +/- [more or less] of property designated "usable for parking" and $58.10 for 1.330 acres +/- [more or less] of property designated "unusable for parking" for a total annual rent of $60,000. Annual rent shall be payable to Lessor in equal monthly payments in advance on the first day of each month, beginning May 1, 1990. When this agreement is terminated, the unearned portion of any rent payment shall be refunded to Lessee. * * * 5(b). In addition to minimum fixed annual rent, Lessee shall pay Lessor a sum equal to 10% of the gross revenues from Lessee's parking lot operation, hereinafter "percentage rent." Payment of the percentage rent shall be paid on or before the twentieth day of each month for the preceding month's revenue. Lessee shall keep separate and accurate records of the gross revenues and it will give Lessor the right at any and all reasonable times to inspect such records. Beginning on the first anniversary date of this Lease, and on the anniversary date each year thereafter during the term of this Lease and all extensions and renewals, percentage rent shall be increased 1% each year until a maximum of 20% is reached. * * * 5(c). The parties acknowledge that the designation between "usable" and "unusable" property may be subject to correction based on actual field conditions, biological reports, or Lessee's inability to obtain required permits far part of the property. Either party shall have the right to notify the other of any incorrect designation (between usable and unusable) and to request a correct designation. A detailed and accurate survey showing the basis for the request for correction shall accompany any notification. If property has been incorrectly designated, the parties agree to adjust the annual rent to reflect the corrected designation of property based on $.35 per square foot for "usable" property and $.001 per square foot for "unusable" 6. In the event Lessor is required to utilize all or part of the lands described in Exhibit "A" for construction or additional lanes or for highway expansion, Lessor may terminate that portion required upon thirty (30) days written notice. If less than all of the property is terminated, the rental fee for the remaining property will be recalculated on a pro rata basis. The modifications to the lease by Holiday Isle were not contemplated by FDOT and gave Holiday Isle a competitive advantage not enjoyed by Red & White. On June 28, 1990, FDOT issued a special permit to Holiday Isle to improve the subject right-of-way area to make the right-of-way area safer until the bid dispute could be resolved. Under the auspices of that permit, Holiday Isle has constructed a chain-link fence to control ingress and egress to and from the parking area and has made other improvements to the right-of-way area. The chain-link fence has different gates far vehicles and pedestrians to pass through. Holiday Isle has placed fill material throughout the area. The Florida Department of Environmental Regulation has determined that the fill material is unauthorized. Holiday Isle has also placed railroad ties to serve as parking abutments and has installed lights. The parking abutments and lighting are not covered under the subject permit. The permit enables Holiday Isle to control and use the area for the parking needs of the Holiday Isle properties without having to pay rent for the right-of way area. The fence is a permanent improvement that will not necessarily be removed when the permit is terminated by FDOT. The primary purpose of this project was to make automobile traffic, parking, and pedestrian traffic safer. The RFP stated that proposals would be based on rent, the merits of the conceptual site plan, and the impact to State Road 5. The merits of the conceptual plans were evaluated based on internal circulation of traffic in the parking area, the planned ingress and egress to the parking area, planned pedestrian traffic, and improvements to State Road 5. The conceptual site plan submitted by Red & White was not prepared by professional engineers and was deficient in several material areas. Red & White's plan shaded the area to be reserved for parking, but it provided no information as to how traffic would circulate within the designated area. Red & White failed to provide information as to how State Road 5 would be impacted and failed to show what improvements, such as deceleration lanes or turn lanes, would have to be made to State Road 5. Further, Red & White's plan failed to make adequate provision for pedestrian traffic. Red & White's plan proposed two driveways, one into the parking area and one out of the parking area. The proposed exit driveway was unsafe because it was designated as a right turn only and was located too close to Whale Harbor bridge. Red & White conceptual plan provided for uses that were not contemplated by the RFP, such as an area reserved for recycling and the provision of parking areas for not-for profit groups. The conceptual plans were evaluated based on the following criteria: "access management", "internal circulation", and "traffic control litigation" "Access management" considered the location of driveways and the ease of ingress to and egress from the parking area. "Internal circulation" involves the actual development and use of the site, including parking layout and traffic flow within the designated parking area. "Traffic control mitigation" addresses safety considerations for and handling of cars and pedestrians. Although these criteria were not specified by the RFP, a conceptual site plan meeting minimum transportation engineering standards would have addressed those criteria in detail. The RFP did not set any minimum standard which would make a proposal "non-responsive" and ineligible for evaluation, and FDOT did not disqualify Red & White's conceptual plan. FDOT contemplated that minor changes could be made to the conceptual plan with its approval after the award of the lease. On June 19, 1990, FDOT announced its intention to award the project to Holiday Isle. On July 31, 1990, after the formal hearing had been convened in Case No. 90-4326BID, FDOT delivered to the parties a notice that it had decided to reject all bids. This change of position was based, in part, on the determination by FDOT that there had been confusion throughout the bid process and that the overall process was not absolutely fair.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered in Case No. 90-4326BID that rejects the proposal submitted by Intervenor, Holiday Isle, and which further rejects the proposal submitted by Petitioner, Red & White. IT IS FURTHER RECOMMENDED that a Final Order be entered in Case No. 90- 4326BID that dismisses the bid protest filed by Red & White. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of November, 1990. 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 20th day of November, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-4326BID AND IN CASE NO. 90-5103BID The following rulings are made on the proposed findings of fact submitted on behalf of Red & White Investments, Inc. The proposed findings of fact in paragraphs 1-5 and 42-47 are rejected as being preliminary matters that are unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 6-17, 19-32, 34-36, 38-41, 48-52, 56-57, 62, 64-67, 74-77, 80, 86, 91, 93-95, 101-108, 111, 119-121, 123, 125-126, 130, 134, 144-145, 155, 157, 163, 165, and 174-177 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 18, 37, 81-82, 96-100, 110, 124, 127-129, 132-133, 135-136, 143, 153, 158-162, 166, and 173 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 54-55, 60, 68-72, 87-88, 90, 92, 102, 115-118, 122, 137-142, 146-152, 154, 156, 167-172, and 179-182 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraphs 33, 79, and 178 are accepted in part and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 53, 61, 73, and 83-85 are rejected as being, in part, subordinate to the findings made and as being, in part, unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 58-59 and 131 are accepted in part and are rejected in part as being legal conclusions. The proposed findings of fact in paragraphs 89, 109, 164, and 183-184 are rejected as being argument or as being contrary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of Florida Department of Transportation: The proposed findings of fact in paragraphs 1-9, 9, 12, and 14-15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 10 are rejected as being preliminary matters that are unnecessary to the conclusions reached. The proposed findings of fact in paragraph 13 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 16 and 17 are accepted in part and are rejected as being contrary to the findings made. The following rulings are made on the proposed findings of fact submitted on behalf of Holiday Isle Resort & Marina, Inc. The proposed findings of fact in paragraph 1 are rejected as being legal conclusions. The proposed findings of fact in paragraph 2-3, 6- 9, and 11 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 4 and 5 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 10 and 12-13 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraphs 14 and 15 are rejected as being recitation of testimony and as being subordinate to the findings made. The proposed findings of fact in paragraphs 16 and 17 are adopted in part by the Recommended Order and are rejected in part as being contrary to the conclusions reached. The proposed findings of fact in paragraphs 18-19 and 22 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached or as being subordinate to the findings made. The proposed findings of fact in paragraphs 20 and 21 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: James S. Mattson, Esquire MATTSON, TOBIN & VETRICK Post Office Box 586 Key Largo, Florida 33307 Michael J. Cherniga, Esquire ROBERTS BAGGETT, LAFACE & RICHARD 101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32301 Susan P. Stephens, Esquire Senior Litigation Attorney Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner Robert Scanlan, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James W. Anderson, Esquire Lewis & McKenna, P.A. Post Office Box 10475 Tallahassee, Florida 32302 Lauchlin T. Waldoch, Esquire Messer, Vickers, Caparello, French, Madsen & Lewis, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876
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)
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 Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, William L. Taylor, has filed a claim against the bond in the amount of $605.95 alleging that Passport failed to perform on certain contracted services. At hearing, petitioner agreed that his claim should be reduced by $300.00 to take into account a settlement offer in that amount received from Passport. By way of background, Passport's assets and liabilities were assumed by Incentive Internationale Travel, Inc. (Incentive) in June 1991, and its status as a corporation was dissolved sometime in late 1991. However, Incentive continued to sell Passport's travel certificates after the merger of the two corporations, and all travel described in those certificates was protected by Passport's bond. In response to an offer in a local newspaper for a "bargain trip" to the Bahamas, on June 25, 1991, petitioner mailed a cashier's check in the amount of $605.95 payable to Incentive Internationale Travel, a telemarketeer in Tennessee using a name almost identical to Incentive and who was operating under the auspices of Open Door, Inc. (Open Door), another telemarketeer whose business location is unknown. Open Door had purchased approximately 1,000 travel certificates from Passport for resale to the public. Passport had agreed to honor and fulfill all travel certificates sold by Open Door or its agents. The travel certificates carried the name, address and logo of Passport. During his discussions with the telemarketeer, petitioner was never told that his requested travel dates might be unavailable. Had he been so advised, he would not have purchased the certificates. After receiving his travel certificates, on September 10, 1991, petitioner mailed them with a check in the amount of $270.00 to Passport. He requested that his travel begin on Monday, November 25, 1991. That date was critical because he wished to celebrate his 50th wedding anniversary in the Bahamas. On September 30, 1991, Passport advised petitioner by letter that it could not honor his request for travel on November 25, 1991, and offered alternative dates. He was also offered the option of receiving a refund of his money. Petitioner immediately requested a refund. When petitioner received a refund of only $270.00, and not the $605.95 previously paid to the telemarketeer, he filed a complaint with the Department. On November 20, 1991, Incentive advised petitioner that because Open Door had gone out of business, and Passport had never received the $605.95 paid to the telemarketeer, it had no obligation to make a refund of the remainder of his money. Sometime later, however, Incentive sent to petitioner a check in the amount of $300.00 in an effort to settle the case. Petitioner deposited the check but claims he is still owed $305.95.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in the amount of $305.95. DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1994. COPIES FURNISHED: William L. Taylor 185 Tower Lakes Lake Wales, Florida 33853 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issue in this proceeding is whether Petitioner is entitled to attorney’s fees and costs.
Findings Of Fact This case was filed by Petitioner on behalf of Ida Heaps pursuant to Section 760.35, Florida Statutes. The case alleged that Respondent discriminated against Petitioner, Heaps, based on race when Respondent did not lease a home to Petitioner Heaps. On July 22, 2004, in Tavares, Florida, a one-day hearing was held after which post-hearing recommended orders were filed. Based on the evidence a Recommended Order finding Respondent guilty of a discriminatory housing practice against Ms. Heaps in violation of Section 760.23(1), Florida Statutes, was entered on February 1, 2005. Petitioner was therefore the prevailing party in this matter. The Recommended Order also found that Petitioner was entitled to attorney’s fees and costs; and reserved jurisdiction to determine the amount of fees and costs in the event the parties were unable to agree on such an award. On January 31, 2005, the Commission issued its Final Order approving the Recommended Order. The time limit for appealing the Final Order has passed. Petitioner has not been able to resolve the amount of fees and costs incurred in this matter. As evidence of the amount of attorney’s fees, Petitioner, FCHR, submitted an affidavit outlining the hours and costs spent incurred in the underlying case by its attorney. The requested fees are limited to hours expended on Petitioner’s behalf in DOAH Case No. 04-1593, including time spent in travel and establishing a right to attorney’s fees and costs. Petitioner’s attorney spent a total of 53 hours on this case, which include 46 hours for legal services and seven hours for travel. The hours multiplied by the reasonable rate results in a total of $14,850.00 for attorney’s fees. The Commission’s direct costs total $453.70, which include the travel costs of Petitioner’s attorney and investigator to attend the hearing and the court reporter’s fee. The time spent on this case by the Petitioner’s attorney was reviewed by an outside expert. The expert has found the time to be reasonable and has recommended a reasonable hourly rate, arrived at independently of the Commission and its attorneys and without direction by Petitioner, based on the nature, novelty and complexity of the case, and the expertise of the Petitioner’s attorney in federal and Florida administrative and anti-discrimination law. The expert opined that a rate of $300.00 per hour legal services and $150.00 per hour for travel was reasonable. Respondent did not challenge the affidavit of Petitioner’s or the expert’s opinion. The amount of hours and costs reflected in the affidavit are reasonable for this type of case. Likewise, the hourly fees for such litigation are reasonable for this type of case and the long experience of Petitioner’s attorney. Therefore, Petitioner, FCHR, is entitled to an award of attorney’s fees and costs in the amount of $15,303.70.
The Issue The issue in this case is whether petitioner's claim against the bond posted by respondent with the Department of Agriculture and Consumer Services should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Faye C. Terry, has filed a claim against the bond in the amount of $915.00 alleging that Passport failed to perform on certain contracted services. In August 1990, petitioner purchased a travel certificate entitling the holder to a five-day, four-night vacation package to the Bahamas for $329.00. The certificate was purchased from United Marketing Group (United), an Ohio telemarketeer authorized to sell the certificates on Passport's behalf. The certificate carried the name, logo, address and telephone number of Passport. The certificate purchased by petitioner expired in August 1991. When petitioner discovered she could not use the certificate by the expiration date, on August 26, 1991, she paid a $50.00 fee to Passport to extend the life of the certificate for an additional year, or until August 30, 1992. In June 1991, all of the assets and liabilities of Passport were acquired by Incentive Internationale Travel, Inc. (Incentive), a corporation having the same address, telephone number, owners, and personnel as Passport. In addition, Passport's status as a corporation was dissolved at a later date in 1991. Even so, Incentive continued to fulfill all travel certificates sold by Passport, and all travel described in those certificates was protected by Passport's bond. Petitioner originally requested to use her travel certificate in August 1991 and sent Passport a $90.00 reservation deposit in conjunction with her request. When she was unable to travel on that date due to a personal conflict, she requested to use her certificate in June 1992. She was told that no accommodations were available. Instead, she was booked to travel in August 1992. Accordingly, on July 12, 1992, she paid Incentive for the cost of an additional traveler (her mother) to accompany her on the trip plus extra accommodations in Fort Lauderdale and certain fees and taxes. Her total payment to Passport and its successor now totaled $915.00. In a form letter dated July 24, 1992, or just twelve days after the additional monies were paid by petitioner, Incentive advised her that it had filed for bankruptcy that same date and that her trip "has been cancelled." She was told that the bankruptcy court would send her a form to file a claim for a refund. To date, she has received no refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and she be paid $915.00 from the bond. DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1994. COPIES FURNISHED: Faye C. Terry Post Office Box 1092 Laurens, South Carolina 29360 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issues are: (1) whether Respondent violated Subsection 112.3148(8), by failing to report a $2,606.25 gift of Disney World and Universal Studios tickets on a Quarterly Gift Disclosure Form, CE Form 9; and (2) if so, what is the appropriate penalty.
Findings Of Fact At all times pertinent to the proceedings, Respondent, Alan Keen, served as chairman of the Orlando-Orange County Expressway Authority. At all times relevant hereto, Respondent was subject to the requirements of Chapter, Part III, Florida Statutes, Code of Ethics for Public Officers and Employees, for his acts and omissions as chairman of the Expressway Authority. See §§ 112.311(6) and 112.313, Fla. Stat. In April 2006, Respondent was contacted by a family friend, James Stanley, who resides in Costa Rica. Mr. Stanley indicated that his father-in-law was paying for the family, consisting of four children and eight adults, to travel to the Orlando area in the Fall of 2006 and requested that Respondent see if he could obtain theme park tickets for their use. Mr. Stanley called Respondent and asked him to obtain theme park tickets so that the tickets could be in-hand prior to Mr. Stanley and his family arriving in Orlando. This request was made purely for the purposes of convenience.2 Respondent has known Mr. Stanley for more than 20 years and considers to him to be a friend. Mr. Stanley described Respondent as his mentor and a close friend. Respondent and Mr. Stanley and their respective families socialize and have visited with each other in the United States and in Costa Rica. Mr. Stanley never asked for or expected Respondent to obtain free theme park tickets. In fact, it was Mr. Stanley's understanding and belief that his father-in-law, Rodrigo Esquivel, was going to pay all the costs associated with the trip. Respondent contacted Bryan Douglas, the then director of marketing for the Expressway Authority and asked Mr. Douglas if he had access to complimentary tickets to Universal Studios and Disney World theme parks.3 In response to this request, Mr. Douglas told Respondent that he did not know if he had access to complimentary tickets, but indicated that he would check. As chairman of the Expressway Authority, Respondent had no supervisory authority over Mr. Douglas and never signed any of his paychecks. Approximately two or three weeks after his initial telephone call to Mr. Douglas, Respondent requested that his personal assistant, Sherry Cooper, follow-up on whether Mr. Douglas had any success in obtaining any complimentary tickets. Respondent understood that Ms. Cooper, at the request of Mr. Douglas, had inquired of Mr. Stanley how many adult and how many children tickets were needed. In 2006, Ronald Pecora was the owner of Pecora and Blexrud, a marketing communications and public relations firm that had a contract to do work the Expressway Authority. In or about May 2006, Mr. Pecora became aware of the request for theme park tickets from Christy Payne. Ms. Payne was the representative of Pecora and Blexrud who was assigned to work with the Expressway Authority. According to Mr. Pecora, Ms. Payne reported to him that she was contacted by Mr. Douglas, the marketing director for the Expressway Authority in regard to theme park tickets. Based on the above-referenced conversation between Mr. Pecora and Ms. Payne, it was his (Mr. Pecora's) understanding that the subject theme park tickets were for Respondent. However, Mr. Pecora had no idea who would be using the theme park tickets and never spoke to Respondent about those tickets. During Mr. Pecora's conversation with Ms. Payne regarding the theme park tickets, he authorized her to purchase the theme park tickets with her corporate credit card. As a result of Mr. Pecora's authorization, a total of 12 theme park tickets having a value of $2,606.25 were purchased using the Pecora and Blexrud credit card. At the time Mr. Pecora authorized Ms. Payne to purchase the 12 theme park tickets, he anticipated being repaid for the tickets. Mr. Pecora's actions after he received the theme park tickets and the invoice for the purchase of those tickets are consistent with that belief and expectation. In mid-May 2006, the 12 theme park tickets and receipt for payment invoice ("invoice") were delivered to Mr. Pecora's business address in Winter Park, Florida. The invoice indicated that the $2,606.25 payment for the theme park tickets had been charged to Mr. Pecora's credit card.4 A few days after receiving the tickets and invoice, Mr. Pecora had one of his employees deliver the theme park tickets and the original invoice for those tickets to Keewin Properties. The reason Mr. Pecora sent the invoice to Keewin Properties, whose principal was Respondent, was so that the recipient would know how much to pay him for the tickets. At the time that Mr. Pecora had the theme park tickets and invoices sent to Keewin Properties, he knew that Respondent was the owner of that business. At or near the time Mr. Pecora directed his employee to deliver the theme park tickets and invoice for those tickets to Keewin Properties, he memorialized that transaction. In a hand-written note dated May 18, 2006, Mr. Pecora indicated that the original invoice had been sent to Keewin Properties. Mr. Pecora understood that theme park tickets were not for official business purposes of the Expressway Authority. Accordingly, he did not send the invoice for the theme park tickets to the Expressway Authority, but to Respondent's privately-owned business. On or about mid-May 2006, Respondent received the theme tickets and the invoice that were delivered to him in a small brown envelope. When he received the tickets, Respondent was surprised that Mr. Pecora was involved in obtaining the tickets because he had merely asked Mr. Douglas whether he had access to complimentary theme park tickets. However, Respondent was not surprised to have received an invoice. Upon receipt of the tickets, Respondent telephoned Mr. Stanley and advised him that he had obtained the theme park tickets and the invoice for the purchase of those tickets. Because Respondent would be in Costa Rica in a few weeks, he told Mr. Stanley that he would deliver the tickets and the invoice when he arrived in Costa Rica. As he had promised, a few weeks after speaking to Mr. Stanley, Respondent traveled to Costa Rica and, while there, personally delivered the theme park tickets and the invoice to Mr. Stanley. When Mr. Stanley received the theme park tickets and the invoice, he reviewed them. Soon thereafter, Mr. Stanley gave both the tickets and the invoice to Mr. Esquivel. Prior to giving the tickets and the invoice to Mr. Esquivel, Mr. Stanley highlighted the name of the individual printed on the invoice who was to be paid for the tickets. On or about September 23, 2006, Mr. Stanley and his family, including Mr. Esquivel, began their visit to the Orlando area. During this trip, the theme park tickets were used by Mr. Stanley's family. Respondent did not use any of the theme park tickets. Mr. Esquivel did not pay for the theme park tickets prior to the time that Mr. Stanley's family used the theme park tickets. About ten days after Mr. Stanley's family, including Mr. Esquivel, returned to Costa Rica from Orlando, Mr. Esquivel suffered a stroke. As a result of the stroke, Mr. Esquivel was hospitalized for about a week, but later returned to most of his usual activities. Respondent first learned that the theme park tickets had not been paid for in December 2006, after reading an article in the Orlando Sentinel newspaper. Until that time, Respondent had assumed that Mr. Stanley or his father-in-law had paid for the theme park tickets. Soon after reading the above-referenced newspaper article, Respondent called Mr. Stanley to ask if they had paid for the theme park tickets. Mr. Stanley told Respondent he believed that his father-in-law had paid for the tickets, but indicated that he would check on the matter. Upon checking, Mr. Stanley determined that his father-in-law had not paid for the tickets. Based on his personal knowledge of his father-in-law, Mr. Stanley concluded that his father-in-law simply forgot to pay for the tickets.5 Soon after discovering that Mr. Esquivel had not paid for the theme park tickets, Mr. Stanley also learned that criminal proceedings related to the theme park tickets were pending against Mr. Pecora. Therefore, Mr. Stanley, in consultation with his attorneys, decided that payment for the theme park tickets should be made after the criminal proceedings were over. About a month prior to this proceeding, Mr. Stanley received wiring instructions from Mr. Pecora's attorney. Immediately thereafter, Mr. Stanley wired the full payment for the theme park tickets to Mr. Pecora's attorney, on behalf of Mr. Pecora. Mr. Stanley's father-in-law gave him the funds which were wired to Mr. Pecora's attorney. Respondent did not file a Quarterly Gift Disclosure, CE Form 9, regarding receipt of the theme park tickets. The reason Respondent did not file a Quarterly Gift Disclosure Statement was that the theme park tickets were not for him and were not used by him. Therefore, Respondent did not believe that the tickets were a gift. Mr. Pecora, the procurer of the theme park tickets, did not consider the theme park tickets as a gift. Moreover, he never intended to make those tickets a gift.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics issue a final order and public report finding that Respondent, Allen Keen, did not violate Subsection 112.3148(8), Florida Statutes, and dismissing the Complaint filed against him. DONE AND ENTERED this 20th day of November, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th of November, 2009.
