The Issue Whether Petitioner is entitled to an exemption from the requirements of Section 559.927, Florida Statutes, under subsection (12)(h) of the statute.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Global Touring, Inc., is in the wholesale travel business. It sells Australia and New Zealand travel packages to travel agencies. Jennifer Pickens is Global Touring, Inc.'s sole shareholder and its President. Pickens has been in the travel business in Broward County, Florida, since 1983, when she started her own travel agency, Global Travel Service, which she operated as a sole proprietorship. At the time, the Air Traffic Conference (hereinafter referred to as the "ATC") had an airline ticket purchase and payment program for participating travel agents. In September of 1983, Pickens contracted with the ATC to participate in its program. She was given an ATC Agency Code Number (618310) and placed on the official ATC Agency List. Approximately a year later, Pickens began a wholesale travel operation, Global Touring Service, which sold tours to Australia and New Zealand. Global Touring Service and Global Travel Service operated out of the same office. Pickens used her ATC Agency Code Number to write airline tickets for both operations. Effective the close of business on December 30, 1984, the ATC terminated its airline ticket purchase and payment program for travel agents. The ATC program, however, was replaced by a similar program operated by the Airlines Reporting Corporation (hereinafter referred to as the "ARC"). Travel agents on the official ATC Agency List were given an opportunity, at their option, to be placed on the official ARC Agency List "in substantially the same status as that agent st[ood] on the ATC list on December 30[, 1984,]" by entering into an agreement with the ARC to participate in its replacement program. Pickens opted to participate in the program. She was assigned an ARC Agency Code Number and placed on the official ARC Agency List. On November 20, 1985, Pickens incorporated her business enterprises. She created one corporate entity, Jennifer R. Pickens Travel, Inc., with two operating divisions: Global Travel Service and Global Touring Service. The newly formed corporation continued to operate under the contract Pickens had entered into with the ARC. In 1986, Jennifer R. Pickens Travel, Inc., purchased another travel agency, Lighthouse Travel Services. Jennifer R. Pickens Travel, Inc., assumed Lighthouse Travel Services' contract with the ARC and Lighthouse Travel Services' ARC Agency Code Number and it cancelled the ARC agreement under which it had been conducting business prior to its purchase of Lighthouse Travel Services. Lighthouse Travel Services and Global Travel Service were combined into one retail travel operating division bearing the name of the former. In December of 1991, Jennifer R. Pickens Travel, Inc., changed its name to Global Touring, Inc., and eliminated its retail travel operating division. Since that time, it has engaged only in the wholesale travel business. On or about March 1, 1992, Global Touring, Inc., sold the assets of its former retail travel operating division, including its ARC contract and ARC Agency Code Number, to YAM, Inc. Following the sale, Global Touring, Inc., sought to enter into another contract with the ARC and obtain a new ARC Agency Code Number. Because the paperwork Global Touring, Inc., initially submitted to the ARC was lost, it was not until on or about December 9, 1992, that Global Touring, Inc., entered into such a contract and received a new ARC Agency Code Number (10-53349-3). The contract is still in effect. Since its inception, with the exception of the period from on or about March 1, 1992, to on or about December 9, 1992, Global Touring, Inc., has continuously operated under a contract with the ARC. While it has undergone a name change, it has remained under the ownership and control of the same person, Jennifer Pickens, during the entire time that it has had a contractual relationship with the ARC. Earlier this year, Global Touring, Inc. submitted to the Department an application for a statement certifying that, based upon the total number of years it has contracted with the ARC, it is exempt from the requirements of Section 559.927, Florida Statutes. Pickens, who prepared the application, failed to sign it. In the application, she asserted that Global Touring, Inc., had been "a member of ARC since: 09/14/83," holding "ARC Number 618310." The Department preliminarily determined to deny the application. In its letter to Pickens advising her of its preliminary determination (hereinafter referred to as the "Notice of Proposed Denial"), the Department gave the following reasons for its proposed action: Application for exemption unsigned, with wrong data; 2) ARC approval 10-53349-3, made 12/9/92 is less than 3 years. Such proposed action is consistent with the Department's practice of granting exemptions under subsection (12)(h) of Section 559.927, Florida Statutes, only to those sellers of travel who are able to show that they have an agreement with the ARC which has been in effect for at least the immediately preceding three years. Pickens responded to the Department's advisement with a letter of her own, the body of which read as follows: We wish to apply for a Formal Procedure Hearing. We applied for an exemption on July 22, 1994 and it seems that the reviewer completely ignored all the enclosures. We have been in the travel business since 1983. We took over Lighthouse Travel in 1985 and had the ARC number 618310 for seven years until selling Lighthouse Travel in 1992 and allowing the ARC number to remain with that part of the business. In 1992, after having our application lost, we again became members of ARC, and all of the above under the same company, Jennifer R. Pickens Travel Inc. which changed its name in 1991 to Global Tour- ing, Inc. In the interim we have become one of the 10 largest American Wholesalers to Australia and New Zealand. Our company can obviously prove an ARC relationship for 3 years (actually 11 years) and a history of selling travel for the same period. We therefore request an exemption as per our submis- sion and inasmuch as a formal hearing seems to be the procedure, we hereby request such a hearing. The letter was dated August 25, 1994, and signed by Pickens in her capacity as the President of Global Touring, Inc. After receiving Pickens' letter, the Department referred the instant matter to the Division of Administrative hearings.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order granting Petitioner's application for a letter of exemption pursuant to Section 559.927, Florida Statues. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1994.
The Issue The issue is whether Respondent is guilty of discriminating against Petitioner, due to her handicap, in providing a public accommodation, in violation of Section 760.08, Florida Statutes.
Findings Of Fact Petitioner suffers from a panic disorder for which she requires the assistance of a service animal. Her service animal is a 40-pound German Shepherd mix named "Rocky." Rocky enables Petitioner to overcome certain specific disabilities associated with her condition, but she does not always require Rocky's assistance. In the summer of 2009, Petitioner's mother organized a family vacation in the form of a Caribbean cruise on a vessel operated by Respondent. She selected a cruise departing Port Everglades on August 9, 2009. The group included Petitioner's father, Petitioner's sister, her fiancé, and others. The first port of call for the cruise after departing Fort Lauderdale was Key West, after which the vessel would sail to various ports under the jurisdiction of other countries. On the morning of the departure, Petitioner's then- boyfriend John McCarthy drove her and Rocky from Key Biscayne, where they live in the same condominium building. Mr. McCarthy proved to be a useful witness. He and Petitioner are no longer in a relationship. Mr. McCarthy portrayed the events largely in agreement with Petitioner's version of events, although his reliability is somewhat undermined by the fact that he and Petitioner have discussed many times what exactly took place on that day. However, he displayed a spirited independence from Petitioner, as when he described her decision to file this "lawsuit" as "ridiculous," and, more importantly, admitted that, while in the terminal, he was unsure whether Petitioner wanted to take Rocky with her on the cruise. Much, but not all, of his testimony has been credited. Leaving Key Biscayne that morning, Petitioner did not, in fact, intend to have Rocky accompany her on the cruise. Among other possible reasons, Petitioner's mother had asked her not to bring Rocky, and Petitioner had acceded to her mother's wish. It was Petitioner's intent only for Rocky to see her off. Without incident, Petitioner, Mr. McCarthy, and Rocky left the car at the cruise terminal parking area and made their way into the cruise lobby. The trio entered the lobby amidst swarms of embarking and disembarking passengers. Respondent hosts on its cruises many passengers with disabilities, including some passengers with service animals. Two Carnival managers described Respondent's policies for accommodating disabled passengers. The Guest Access Support manager, Kay Strawderman, explained the process by which persons purchasing cruise tickets are directed to complete a form that provides information about disabilities or special needs. If a passenger is bringing a service animal, Respondent informs the passenger that he or she must contact the U.S. Department of Agriculture for current regulations, by port, governing animals, such as requirements for vaccination records. These regulations are imposed by the countries visited by the vessel and may be enforced even if the animal does not leave the ship. Neither Respondent nor the U.S. government has the authority to permit any deviations from these foreign laws. Using the information provided in the completed forms, the Guest Access Support department compiles a list of special- needs passengers, including passengers who will be bringing service animals. The Guest Access Support department sends this list to the Guest Logistics department. Assigned to the terminal and in direct contact with passengers, Guest Logistics employees ensure the efficient boarding and exiting of the vessels and movement through the terminal. The Guest Logistics manager, Doris Enamorado, testified that her employees use the special-needs lists to ensure that special-needs passengers and, if applicable, their service animals are directed to special boarding areas, so they can board without any delay. Ms. Strawderman and Ms. Enamorado both considered the question of what they would do if a special-needs passenger failed to fill out and return the forms, but arrived at the terminal seeking to board with her service animal. The question is hypothetical because this has never previously happened, including on the day in question. Ms. Strawderman insisted that, if a special-needs passenger failed to return the forms, Respondent would not deny boarding. Ms. Enamorado added that, if one of her employees encountered a passenger with an animal in the terminal seeking to board, the employee would determine if the animal were a service animal, including how it services the disability, and then examine the vaccination records, without which a service animal may not sail due to the requirements of the laws of foreign countries. Shortly after they entered the terminal, Petitioner, Mr. McCarthy, and Rocky were approached by a Carnival employee named "Alex." Respondent invites the inference that Petitioner spontaneously exploded into anger and hysterics. At the hearing, Petitioner displayed a tendency toward combativeness, but none toward spontaneous anger or hysterics. More likely, Alex, upon encountering Petitioner, Mr. McArthur, and a dog in a crowded terminal, momentarily failed to display the composure and dedication to service of Respondent's managerial employees who testified at the hearing. Mr. McCarthy's testimony is especially useful at this point and is largely credited. Approaching Petitioner, Alex abruptly informed her that Rocky could not proceed. It is likely that Alex assumed that Rocky was a mere pet, as he does not wear a special cape or harness and Petitioner does not bear any obvious indication of a disability. Petitioner replied that Rocky was a service dog, and he was present only to see her off on the cruise. Alex replied that Petitioner did not appear to suffer from a disability. As Mr. McCarthy aptly notes, "the fight was on." Each side called for reinforcements. Petitioner spoke on her cellphone with her sister and mother. Alex summoned his supervisor, who joined the fray. Mr. McCarthy and Rocky wisely stood to the side. By now, Petitioner was crying out of control. In this condition, she could not reliably report on what she said to Respondent's employees or what they said to her. Mr. McCarthy seems to have been unable to hear much of what the parties were saying to each other. Respondent's employees report that their behavior was impeccable. Regardless, there is no reliable evidence that Petitioner ever demanded that Rocky, her service animal, board the vessel with her. Much evidence suggests that Petitioner never intended to take Rocky on the cruise. As far as Petitioner's mother or Mr. McArthur knew, Rocky was staying home. Petitioner herself had failed to pack any food for Rocky, nor did she at any time instruct Mr. McArthur to drive to a nearby store to obtain any. No evidence suggests that Petitioner had brought with her any proof of Rocky's vaccinations, which might be required by the various countries that they were visiting. Once on board, Petitioner did not even demand that Respondent allow Rocky to board in Key West. To convince her daughter to board the vessel, Petitioner's mother said that Rocky could join them in Key West. Even after the vessel had sailed, Petitioner, still agitated, spoke constantly with Mr. McCarthy until the vessel sailed out of cellphone range. She directed him to drive Rocky to Key West to join her on the cruise, but Mr. McCarthy, citing a bad back and the fact that his birthday was the next day, declined to do so, instead taking Rocky to South Beach the following day. Mr. McCarthy's testimony suggested a boyfriend who was unwilling to cater to his girlfriend's capricious decision to make an issue with Rocky, not a boyfriend who was unwilling to help right a wrong that his girlfriend had suffered. At some point prior to arriving in Key West, Petitioner realized that Mr. McCarthy had no intention of driving Rocky to Key West. Rather than disembark in Key West, as she wanted, Petitioner acceded to her mother's exhortations and remained on board, but she was very unhappy for the remainder of the cruise.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's amended petition. DONE AND ENTERED this 21st day of September, 2010, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2010. COPIES FURNISHED: Marcy I. LaHart, Esquire Marcy I. LaHart, P.A. 4804 Southwest 45th Street Gainesville, Florida 32608 Martha deZayas, Esquire Carnival Cruise Lines 3655 Northwest 87 Avenue Miami, Florida 33131 Kara S. Nickel, Esquire Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. 150 West Flagler Street, Suite 2200 Miami, Florida 33130 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact In December of 1973, petitioner Greenblatt and another registered the fictitious name "International Vacations" with the clerk of the Circuit Court of Dade County, Florida. Since that time, petitioner has been engaged in business as a travel agent in Miami, under the name of "International Vacations." In the spring of 1977, before May 1, respondent Fitterman, who has herself been active in the travel business, filed an application with respondent Department of State to reserve the corporate name "International Vacations, Inc." At the time, Mrs. Fitterman was unaware that there was a travel agency in Miami with the name "International Vacations." When she learned that there was, she telephoned petitioner. In conversations with petitioner she related that she had incurred certain expenses, and there was some discussion of petitioner's arranging a trip for her and two of her grandchildren. In the course of the conversation, Mrs. Fitterman agreed not to use the corporate name "International Vacations, Inc." On May 23, 1978, respondent Fitterman wrote petitioner offering to "relinquish our hold on" the name in exchange for the trip, Petitioner's exhibit No. 1, but negotiations subsequently fell through. After agreeing not to use "International Vacations, Inc.," respondent Fitterman organized a corporation which she named "Miami Tours, Inc.," but she came to feel that this name was less satisfactory than "International Vacations, Inc." Since 1977, she has been doing business in Miami under the name of American International Travel Club. On or about December 4, 1977, petitioner Greenblatt applied to the Department of State on behalf of a California corporation, International Vacations, Inc., for authorization to transact business in Florida. A check in the amount of one hundred four dollars ($104.00) drawn in favor of the Secretary of State accompanied this application; and the check has been negotiated. Petitioner's exhibit No. 2.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent Department of State refuse Petitioner's request that it revoke respondent Fitterman's reservation of the exclusive right to use the corporate name "International Vacations, Inc." DONE and ENTERED this 12th day of June, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Nathan Greenblatt 311 Lincoln Road Miami Beach, Florida 33139 Mrs. Blanche Fitterman American International Travel Club, Inc. 17070 Collins Avenue, Suite 219 Miami Beach, Florida 33160 William J. Gladwin, Esquire Department of State The Capitol Tallahassee, Florida 32301
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.
Findings Of Fact Petitioner was born in 1936. While on active duty in the United States Navy in 1955, he suffered an injury which subsequently led to the amputation of his left foot. When discharged from the Navy, his disability was rated by the Veterans Administration (VA) at 40 percent. Subsequent problems with the stump of the left leg, arthritis, and a spinal fusion led to VA disability increases, which disability rating at time of hearing was 100 percent. Petitioner applied for work with Delta Air Lines, Respondent, in 1966 and was employed as a reservations agent in Chicago. At this time his VA disability rating was 70 percent. In 1967 Petitioner, at his own request, was transferred by Respondent to Tampa, Florida. At this time Petitioner was able to move around the bay in which he worked with and without his crutches. In September 1979 Petitioner was hospitalized for stump revision and remained in an off-duty status until June 1980 when he returned to his position with Delta. At this time Petitioner carried out his duties as a reservation agent in a wheelchair. Following his return to work in 1981 Petitioner's performance of duty was marginal. Petitioner takes prescribed medication for pain. On one occasion the medication adversely affected his ability to perform his duties satisfactorily and he was told by his supervisor not to take medication at work. The doctor changed this prescription from 1-100 mg. daily to 4-25 mg. daily and Petitioner continued his medication as prescribed without further problems. On October 28, 1981, Petitioner was examined by Dr. Frazier, one of the physicians used by Delta for its employees. The purpose of this examination was to evaluate Petitioner's physical condition for continued employment. Report of this examination is contained in Exhibit 5 wherein Dr. Frazier concluded that Petitioner "has several progressive disabilitating diseases, that combined with his psychological state make him unemployable for Delta Air Lines. I would recommend because of his depression, amputation, hypertension, osteo-arthritis and spinal fusion problems that he be retired on disability." Respondent does not have a retirement for physical disability status. In lieu thereof it has short-term disability benefits and long-term disability benefits. Long-term disability benefits are calculated as a percentage of the employee's basic monthly salary less social security benefits the employee receives. Petitioner was in a long-term benefit status while recovering from stump revision in 1979-1980. Following Delta's receipt of the report of Dr. Frazier, Petitioner was sent home in a short-term disability status while the report was evaluated. Respondent subsequently advised Petitioner that he was qualified for sedentary work and directed him to return to his position with Delta Air Lines. Petitioner returned to work around June 1982 as a reservations agent. Fifteen or twenty reservation agents work in a "bay" where each has access to a telephone and computer terminal. These agents handle all reservation requests via telephone with no visual contact with the customers. They work an eight-hour shift with two 10 minute breaks and one-half hour off for lunch. While operating from his wheelchair, Petitioner usually took a station near the entrance to the bay which provided easier access for the wheelchair than a station farther down into the bay. He made no complaints about access to his station to Delta supervisory personnel. Reservation agents' telephone communications are monitored by supervisors on an intermittent basis to ensure the agent is carrying out his duties in a satisfactory manner and is providing proper information to the customers. In June 1972 Petitioner was placed on three months' probation. In September 1972 this probationary period was extended an additional three months. In July 1974 Petitioner was again placed on probation and given a "final chance" letter. In October 1977 he was given a letter for poor performance. Petitioner acknowledged that several times before 1982 he had been disciplined by Respondent but not fired. In December 1982 Charles Cortright, a retired architect, called the Tampa office of Delta Air Lines to get information on a flight to and from the West Coast interrupted with cruises while on the West Coast. Specifically, Cortright wanted to fly to Seattle, take a ferry trip to Alaska, perhaps two more sea cruises from West Coast ports, take a train from Seattle to San Francisco, and fly back to Tampa from San Francisco. He was referred to Petitioner, who quoted him a price of $278.00 on the air portion of this trip, but, since Petitioner did not think the cruises could be arranged by Delta, referred Cortright to a travel agency. Petitioner testified that he referred Cortright to three travel agencies located in the vicinity of Cortright's residence and did not specify the agency at which Petitioner's wife worked. Although Cortright testified that he was not referred to any one by name and did not know that Petitioner's wife worked at Tri-Cities Travel Agency, he went to Tri-Cities and his reservations were made by Malinda, who, in fact, was Petitioner's wife. It is likely that Cortright did not know that Malinda was Petitioner's wife, but it is believed that Cortright was told by Petitioner to ask for Malinda and he did so. When the airline tickets arrived at the travel agency, Cortright was advised by the agency the price of the air fare was $302.00. Cortright then, on December 14, 1982, called Delta and asked to speak to Petitioner to inquire about the difference in the fares quoted by Petitioner and the cost of the tickets at the travel agency, and to get the fare guaranteed that was quoted by Petitioner. At the time this call was received by another agent, Jennings King, King was being monitored by his supervisor, Carolyn Corvette. In this phone conversation Cortright said he had spoken to Petitioner two times before, that he went to the agency to which he had been directed by Petitioner, that he spoke to Malinda as directed by Petitioner, and that he was charged a higher fare than was quoted by Petitioner. Corvette had the call transferred to the customer service desk and authorized guarantee of the lower fare quoted. She promptly prepared a memo of the incident to Arthur Arden, Chief Reservation Supervisor (Exhibit 7). Arden called Cortright, who confirmed that Petitioner had directed him to Tri-Cities Travel Agency. Arden extracted from Delta's computer the reservation made for Cortright which disclosed the reservation was made by Malinda at Tri-Cities (Exhibit 8). Knowing that Malinda was Petitioner's wife, Arden, on December 15, told Petitioner that he was suspended from work and would be recommended for dismissal. On December 15, 1982, Arden signed a memo to Harry Dean, Delta's Regional Manager at Tampa, recommending that Petitioner be terminated (Exhibit 6). Dean concurred, sent the memo to Delta's Atlanta office, and Petitioner was fired. All reservation agent trainees are told that they should make every effort to arrange all of the transportation needs of the customers through Delta Air Lines, including tours requiring other modes of transport than air; and that they should never refer a customer to a specific travel agency. If a travel agency's services are needed by the customer, the customer should be referred to the yellow pages of the phone book to select a travel agency. This same information is contained in the Standard Practices Manual, which is available to all reservation agents. The reason for this rule is to eliminate, insofar as possible, conflicts of interest and to refrain from alienating some travel agents by appearing to favor other travel agents. This could create a serious problem for the air lines and is taken very seriously by air line company management. Petitioner's testimony that he did not refer Cortright to Tri-Cities Travel Agency and that he never referred a customer to a specific travel agency was rebutted by Betty Maseda, a fellow reservations agent who frequently sat alongside Petitioner at work and on several occasions overheard Petitioner giving specific instructions to customers on exactly how to get to Tri-Cities Travel Agency and to ask for Malinda. Ms. Maseda considers herself a good friend of Petitioner and did not volunteer this information to Respondent until after Petitioner had been fired.
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
