The Issue In relation to DOAH Case No. 05-0515, does the case involve the sale of securities as described in Chapter 517, Florida Statutes (2002), that would confer jurisdiction upon OFR to proceed to a hearing on the merits of the Administrative Complaint that forms the basis for DOAH Case No. 05-0515, and to what extent, if any, the named Respondents have been involved with the sale of securities sufficient to declare jurisdiction over their activities? Preliminary to that determination is the related issue concerning the possible pre-emption of OFR's regulatory authority by virtue of the regulatory action previously taken by the State of Florida, Department of Business and Professional Regulation, Division of Land Sales, Condominiums and Mobile Homes (DBPR) under authority set forth in Chapter 721, Florida Statutes (2002)? Argument has also been set forth concerning the significance of court cases as they might influence OFR's ability to declare their regulatory authority in this instance.
Findings Of Fact * * * 2. RESPONDENT is the 'creating developer' of the Universal Luxury Lease Plan, a personal property 'timeshare plan' as those terms are defined in sections 721.05(9)(a) and 721.05(37), Florida Statutes, located in the city of Sanford, Florida. * * * On or about July 10, 2003, DIVISION was made aware of a newspaper advertisement for Universal Luxury Lease Plan. This advertisement, promoted the purchase of a timeshare interest in the Universal Luxury Lease Plan as an investment that offered purchasers a 10 percent per year return on their investment. On July 25, 2003, DIVISION'S investigators were given an application package containing the Universal Luxury Lease Plan Enrollment Forms, CD-ROM, Public Offering Statement, Contracts and Motor Coach Brochures. The application package stated that it was advertising material being used for the purposes of soliciting timeshare interests. It described a component of the timeshare plan called the 'Affinity Rental Program' and stated that the program will typically produce a monthly income of 10 percent of the lease-hold ownership interest.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That an order be entered by OFR finding jurisdiction to proceed with the Administrative Complaint in DOAH Case No. 05- 0515 on its merits. DONE AND ENTERED this 6th day of January, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 6th day of January, 2006.
The Issue At issue is whether respondent committed the offense alleged in the petitioner's "notice of intent to impose administrative fine and to issue cease and desist order" and, if so, what administrative action should be taken.
Findings Of Fact Petitioner, Department of Agriculture and Consumer Services, is a state agency charged, inter alia, with administering and enforcing the provisions of Chapter 559, Part XI, Florida Statutes, regulating "sellers of travel." Here, petitioner has charged that respondent had operated as a "seller of travel" without being registered as required by Section 559.927(2), Florida Statutes. The only proof offered to support such contention at hearing was a written inspection report prepared by James Kelly, an inspector employed by petitioner. 1/ That report recited that Mr. Kelly performed an inspection of respondent's premises on November 4, 1994, that he met with Denise Arencibia (who was later identified as respondent's vice president), and that the following events transpired: Went in undercover and asked about weekend cruises. Denise gave me a brochure for the Seaward & gave me prices at $329 per person. She can make all arrangements. They will accept a cashier's check payable to Escape Travel Services. Mr. Kelly did not, however, appear at hearing or otherwise offer testimony in this case. Consequently, for the reasons discussed in the conclusions of law, there is no competent proof of record to support a finding that respondent operated as a "seller of travel" on the date of Mr. Kelly's inspection as contended by petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the charges against respondent. DONE AND ENTERED this 12th day of September 1995 in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 September 1995.
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, Cassandra Cook, has filed a claim against the bond for $349.50 alleging that Passport failed to perform on certain contracted services. On April 20, 1989, petitioner received a solicitation telephone call from Global Travel inviting her to purchase a travel certificate entitling her and a companion to a five-day, four-night cruise to the Bahamas. Global Travel was a Tennessee telemarketeer selling travel certificates on behalf of Passport. Petitioner agreed to purchase the certificate and authorized a $349.50 charge on her credit card payable to Global Travel. Thereafter, petitioner received her travel certificate, brochure and video, all carrying the name, address and logo of Passport. In order to use the travel certificate, it was necessary for petitioner to fill out the reservation form with requested dates and return the form, certificate, and a deposit to Passport. Before doing so, petitioner repeatedly attempted to telephone Passport's offices in Daytona Beach to obtain additional information and to inquire about the availability of certain travel dates but was never able to speak to anyone because of busy lines. She then requested a refund of her money and simultaneously filed a complaint with the Department in January 1990. In responding to the complaint in February 1990, Passport denied liability on the ground petitioner was obligated to "deal directly with the company that has charged her credit card as that is who has her money." By then, however, Global Travel was out of business. To date, petitioner has never received a refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and she be paid $349.50 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: Cassandra Cook 3818 Firdrona Drive, N. W. Gig Harbor, Washington 98332 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issue for disposition is whether Barry Amos d/b/a Cloud Nine Travel violated section 559.927, F.S., by operating as a seller of travel without being registered, and if so, what remedial action is appropriate.
Findings Of Fact At all times relevant to the issues here, Barry Amos operated a business at 4312-101 Plaza Gate Lane, Jacksonville, Florida. In the latter months of 1993, Mr. Amos was interested in starting up a travel agency. He requested information from the department and was sent a registration packet with forms and a copy of the statute and rules. On December 29, 1993, Mr. Amos wrote to the department requesting an exemption from registration based on his understanding that he was entitled to such. His letter references a telephone conversation with "Melissa" at the department and states: "She informed me that since I would not be handling ticket stock or actual payments that I would not be required to register or post the surety bond with your department." (Petitioner's composite exhibit #1) Mr. Amos did not receive his exemption; instead the department sent another letter on February 10, 1994 reiterating that the law required registration unless he provided proof that he was exempt. Joseph Nicolosi is an investigator with the department's Division of Consumer Services. On July 19, 1994 he conducted what he calls an "on-site inspection" of Mr. Amos' business. He had the information on the business but did not have a proper phone number. He looked in the yellow pages and found a listing for "Cloud 9 Travel" with a telephone number. The individual who answered Mr. Nicolosi's telephone call identified himself as Barry Amos. Mr. Nicolosi asked about coming to the office to look at brochures and to plan a trip from Jacksonville to Colorado. Mr. Amos told him that his wife would meet him someplace or send him the brochures. Mr. Amos also said that he would have to figure out the cost of the trip and call him back and that payment would be made by Mr. Nicolosi to him for the trip; he, Mr. Amos, would make the arrangements. After the telephone call was terminated, Mr. Nicolosi called Mr. Amos back a few minutes later and asked if he would accept a check as payment. Mr. Amos replied that it would be better to use a credit card but he agreed that he would accept a check. Mr. Amos concedes that when he was in business as Cloud 9, he accepted personal or cashier's checks from the public for ticket purchases. He did not accept payment from the public for what he called "services", like a commission. The checks he accepted for ticket purchases were made out to Cloud 9 Travel and were used to purchase tickets for the clients. Commissions were paid to Cloud 9 from the ticket sellers. Barry Amos ceased operation as Cloud 9 Travel in January, 1995. He never registered as a seller of travel.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Department of Agriculture and Consumer Services enter its final order finding that Respondent, Barry Amos d/b/a Cloud 9 Travel, violated section 559.927, F.S., imposing an administrative fine of $250.00, requiring that Respondent continue to cease and desist until properly registered as a seller of travel and denying such registration until the administrative fine is paid. DONE and ORDERED this 19th day of April, 1995, in Tallahassee, Leon County, Florida. MARY W. 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 19th day of April, 1995. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Jo Englander, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Mr. Barry Amos 4312-101 Plaza Gate Lane Jacksonville, Florida 32217
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
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, Jewel Y. Primas, has filed a claim against the bond in the amount of $342.00 alleging that Passport failed to perform on certain contracted services. In February 1987, petitioner purchased an eight-day, seven-night vacation package for two from Washington, D. C. to Acapulco, Mexico. The package was purchased from Gemini International, a fictitious name under which Passport was then operating. According to the terms of the parties' agreement, Primas agreed to pay $389.90 plus "the cost of one (1) unrestricted, round-trip, standard, all year, full economy (Y class), coach airfare/or first class air fare." In other words, in addition to a $389.90 fee, Primas agreed to pay whatever the cost of a round-trip, full-fare coach ticket happened to be at the time of her trip, regardless of the price Passport actually paid for the traveler's airline ticket. In this case, Passport valued the cost of such a fare as $750.00. It is undisputed that when petitioner traveled in December 1988, an unrestricted, full economy, round-trip fare between Washington, D. C. and Acapulco, Mexico was $750.00. Primas accordingly paid $389.90 plus $750.00 for the package. Petitioner and her companion received all of the services promised in the package. She noted, however, that her airline ticket on Continental Airlines cost only $408.00 instead of $750.00. Claiming that she was misled and overcharged, petitioner has asked for a refund of $342.00, which represents the difference between $750.00 and $408.00. Passport routinely booked its travelers on a fare much lower than an unrestricted, full-fare coach fare, which is the highest coach fare an airline sells. Its profit margin, if any, was based in part on this differential since it knew it would pay something less than a full coach fare for the traveler. While petitioner may not have understood that airlines offer a range of fares within the coach class, the terms and conditions were plainly stated on the agreement sent to Primas on October 24, 1988, and there is no basis on which to find that she was misled or that Passport otherwise defrauded her.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be denied. DONE AND ENTERED this 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: Jewel Y. Primas 1817 S Street Washington, D. C. 20020 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact Sundial is a limited partnership authorized to do business in the State of Florida and is a developer and builder of a condominium complex known as Sundial of Sanabel. In order to provide the purchasers of the condominium units with a means of renting their units when the units were not occupied by the owners, a second limited partnership was formed, Sundial Rental Partners Ltd., in which Sundial is the general partner and each of the condominium owners are limited partners. On August 1, 1973, a management agreement was entered into between Sundial Rental Partners Ltd. (hereafter Rental Partners) and Sundial whereby Sundial agreed to provide management services in connection with the operation of the condominium units as rental accommodations. The terms of this agreement provided that Sundial would be compensated for its management services in the amount of five percent (5 percent) of the gross revenue of the rental partners. On April 7, 1973, an Additional Facilities Lease Agreement was entered into between Sundial and Rental Partners. By this agreement, Sundial leased to Rental Partners additional facilities to be constructed by Sundial and used by the condominium unit owners, the persons who rent the condominium units from the Rental Partners and their guests. Compensation to Sundial is set forth in paragraph 3 of the agreement: Sundial Associates shall be paid an annual rental fee for the additional facilities equal to fifteen percent of the gross revenues of the Rental Partnership. Sun- dial Associates shall operate the additional facilities for its own account. All incom- ing profits shall inure to its benefit and the rental partnership shall have no interest in such incoming profits. The limited partnership agreement between Sundial and Rental Partners was amended on August 6, 1974. Paragraph 5.1 of the Amended Agreement provides that a total of five percent (5 percent) of the gross revenues of the partnership shall be paid to Sundial for its management services and that fifteen percent (15 percent) of the gross revenues of the partnership shall be paid to Sundial as rental payments for those additional facilities to be constructed by Sundial Paragraph 6.1 provides for a management deed to be paid to Sundial in the amount of four percent (4 percent) of the gross revenues of the partnership and paragraph 6.4 provides that the partnership shall lease from Sundial the additional facilities at the rate of fifteen percent (15 percent) of the gross revenues of the partnership. Paragraph 6.4 of the limited partnership agreement calls for the construction of additional facilities, the cost of which is to be some two million one hundred fifty thousand dollars ($2,150,000.00). During the tax period in question, the only facilities actually constructed were a lobby and registration area, the value of which is significantly less than the total value of the expected construction. Nonetheless, during the tax period in question, the Rental Partners have paid Sundial the full five percent (5 percent) management fee and the full fifteen percent (15 percent) rental payment. Sundial recorded receipt of these amounts in separate accounts in their financial records. Sundial received as income during the tax period in question, certain tennis court admission fees which DOR did not intend to include in its computation of the sales tax due from rental proceeds. Yet, the record reflects that the total of fifteen percent (15 percent) of gross sales was three hundred seventeen thousand three hundred ninety-three dollars and ninety-four cents ($317,393.94) while the total from tennis court admission fees was eighteen thousand four hundred ninety-seven dollars and sixty-seven cents ($18,497.67). The sum of these two figures is three hundred thirty-five thousand eight hundred ninety-one dollars and sixty-one cents ($335,891.61) which, when multiplied by four percent (4 percent) equals thirteen thousand four hundred thirty-five dollars and sixty-six cents ($13,435.66). This is the exact amount of the tax assessed by DOR exclusive of interest and penalties. The assessment is in error to the extent that tennis court admission fees were included in the figure purporting to reflect gross receipts of rental fees.
