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 On February 17, 1977, L & S, pursuant to the provisions of Section 628.461, Florida Statutes, filed an application with the Florida Department of Insurance seeking approval of its proposed acquisition of an undesignated number of shares of the capital stock of National Life, which is the controlling company of Voyager Life Insurance Company (hereafter Voyager), a domestic insurer. The application was subsequently withdrawn and on April 19, 1977, a second application was filed by L & S seeking approval for the purchase of up to an additional 240,900 shares, or approximately ten percent (10 percent) of the issued and outstanding shares of National Life. The latter application recited that L & S then held approximately 20.2 percent of the total issued and outstanding shares of National Life. On August 30, 1977, the application was amended to reflect the joinder of the Charter Company (hereafter Charter) and New Charter Holding Company, Inc. (hereafter New Charter). It was represented that Charter wholly owned New Charter and that New Charter held a majority of the issued and outstanding shares of L & S. National Life then filed its objections to the proposed acquisition. Voyager is a domestic stock insurance company offering insurance coverage primarily in the lines of credit life, credit accident and health and ordinary life, as well as fixed and variable annuity contracts. National Life is a Florida corporation which includes Voyager as the largest of its several wholly owned subsidiaries. L & S is a Louisiana stock insurer qualified to do business in Florida, engaged primarily in the underwriting of ordinary life coverage, and is a wholly owned subsidiary of New Charter. New Charter is a South Carolina corporation and a holding company, and is a wholly owned subsidiary of Charter. Charter, a Florida corporation, is a diversified holding company with the most important part of its business in petroleum refining and related activities, and with further interests in the areas of communications, real estate and insurance. At the time of the hearing, L & S was the holder of approximately 20.2 percent of the outstanding common stock of National Life, which it had acquired from Charter affiliates and in open market purchases over the past two years. L & S has no contracts, arrangements or understandings with any other party with respect to any securities of Voyager or National Life. Neither L & S nor any of its officers or directors have any present plans or proposals to liquidate either Voyager or National Life, to sell their assets, to merge or consolidate either of them with any other person or to make any other major changes in their business, corporate structure or management. As early as March 1, 1977, L & S had formulated an intent to seek control of National Life and, at the hearing in this cause, confirmed that intent. L & S attempted to exercise control at the 1977 annual meeting of National Life shareholders by conditioning the registration of shares which it owned on two conditions: (1) that two individuals of L & S' choice be elected to National Life's Board of Directors and (2) that National Life withdraw all opposition to the instant application. As a result of National Life's refusal to accede to the demands made by L & S at the 1977 annual meeting, L & S did not register its shares and the meeting was subsequently adjourned for lack of a quorum. L & S' application for permission to acquire an additional ten percent of National Life's stock is in furtherance of their intent to seek to control National Life. In March 1977, as collateral for a twenty million dollar loan, Charter pledged all voting securities of New Charter to subsidiaries of the conglomerate American Financial Corporation (hereafter AFC). A default by Charter under the promissory note could result in a transfer of control of L & S and beneficial ownership of National Life shares (held by L & S) to AFC. From 1974 through 1976, Voyager out performed L & S in each product line common to the two companies. The top management of Voyager and National Life have extensive experience in full time insurance operations, while the top management of L & S and New Charter and those persons whose backgrounds were required to be furnished in the application, have limited insurance experience and education. The AM Best Company (Best's Insurance Reports, Life/Health) gives Voyager a "B" or "good" rating, while omitting any rating for L & S for the stated reasons that the operation of L & S has been very irregular without any definite trend during the last five years and because L & S has accumulated sufficient debits to fall outside the boundaries of a minimum rating. From 1975 to June 30, 1977, Voyager's general expenses as a percentage of its total income have fallen from approximately eight percent to five percent, while during the same period, L & S' general expenses as a percentage of its total income have risen from approximately thirteen percent to twenty-one percent. From 1974, to June, 1977, Voyager's unassigned surplus dropped from negative $9,370,000.00 to a negative $6,924,000.00, while during the same period, L & S' unassigned surplus climbed from a negative $14,070,000.00 to a negative $19,584,000.00. From 1974 through 1976, Voyager had a net statutory gain of approximately $3,000,990.00 while during the same period L & S had a net statutory loss of approximately $2,942,000.00. For the first nine months of 1977, National Life had a statutory gain of approximately $1,900,000.00 while during the same period L & S had a statutory loss of approximately $270,000.00. From 1974 through 1976, National Life paid its shareholders $620,000.00 in dividends while during the same period L & S paid no dividends to its shareholders. L & S has had to have support in its surplus or surplus notes and L & S has obtained approximately $15,000,000.00 of surplus relief through reinsurance contracts. It is a mark of potentially unstable business for a life insurance company to have twenty percent to twenty-four percent of its admitted assets tied up in policy loans. Under its present management, L & S' policy loans as a percentage of its total admitted assets have climbed from approximately eighteen percent at year end 1975, to twenty-four percent as of June 30, 1977.
Recommendation Because L & S has failed to meet its burden of proof of affirmatively establishing each of the five criteria in accordance with Section 628.461(6), Florida Statutes, the proposed acquisition should be disapproved. DONE and ENTERED this 15 day of February, 1978, in Tallahassee, Florida. MICHAEL R. N. McDONNELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15 day of February, 1978. APPENDIX In accordance with the requirements of the decision in Stuckey's of Eastman, Georgia v. Department of transportation, 340 So.2d 119 (Fla. 1st DCA 1976), the rulings on proposed findings of fact submitted by the parties, along with the grounds for rejection are set forth below. PETITIONERS' PROPOSED FINDINGS OF FACT Adopted in substance. Adopted in substance. Adopted in substance. Adopted in substance. Adopted in substance. Adopted in substance. Adopted in substance. Adopted in substance. Adopted in substance. Adopted in substance. Rejected. Not relevant. Adopted in substance Adopted in substance Rejected. Not relevant. Rejected. Not supported by the evidence. RESPONDENT'S PROPOSED FINDINGS OF FACT Adopted in substance. Adopted in substance. Adopted in substance. Adopted in substance. Adopted in substance. Adopted in substance. Adopted in substance. Adopted in substance. Rejected. Not material. Rejected. Not relevant. Rejected. Not relevant. Adopted in substance. Adopted in substance. Adopted in substance. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted in substance. Adopted in substance. These findings made this 15th day of February, 1978. MICHAEL R.N. McDONNELL Hearing Officer COPIES FURNISHED: Mark Hulsey, Jr., Esquire 500 Barnett Bank Building Jacksonville, Florida 32202 B. K. Roberts, Esquire Roberts, Miller, Baggett & LaFace 101 East College Avenue Post Office Box 1752 Tallahassee, Florida 32302 Judson Freeman, Esquire Freeman, Richardson, Watson, Slade, McCarthy & Kelly, P.A. 1200 Barnett Bank Building Jacksonville, Florida 32202
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Mitchell H. Abelman, has filed a claim against the bond for $389.00 alleging that Passport failed to perform on certain contracted services. Because the relevant events occurred some three or four years ago, many of the details concerning this transaction are somewhat vague. It is clear, however, that in response to a solicitation call, on August 15, 1990, petitioner purchased a travel certificate from Executive Travel, Inc., a Connecticut telemarketeer, authorized to sell travel certificates on behalf of Passport. The certificate entitled the holder to a five-day, four-night trip for two to the Bahamas, plus four nights' lodging in Daytona Beach and Orlando, Florida. For this, petitioner agreed to pay $389.00 through a charge to his credit card payable to the telemarketeer. The certificate carried the name, address, and logo of Passport. Prior to purchasing the certificate, petitioner was never told that in order to take the trip, he must pay additional charges. Had he known this, he would not have purchased the certificate. A travel certificate, video, and instructions were mailed by Passport to petitioner around August 22, 1990. The certificate clearly stated that it expired in one year, or on August 27, 1991. The instructions stated that in order to reserve travel dates, the traveler must return the certificate to Passport with the requested travel dates at least 75 days prior to the traveler's departure. Petitioner says he did not open up his mail from Passport for a considerable period of time and thus was initially unaware of these restrictions. On an undisclosed date, petitioner telephoned a representative of Passport and requested confirmation of certain travel dates. Although these dates were apparently more than a year after the certificate was issued, a Passport representative verbally approved the dates but told him that that in order to reserve those dates, he must send in an additional $90.00 for port charges, taxes, and meals on the ship. Petitioner refused to pay any more money since he had not been told this when he purchased the certificate. Therefore, he never returned the travel certificate to confirm his reservation. When petitioner telephoned a Passport representative a second time concerning the use of his certificate, he was told that his travel certificate had expired. He was offered the right to use the Florida portion of his trip but only if he paid a $50.00 deposit. Petitioner declined to do so and later filed this claim for a refund in the amount of $389.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and he be paid $389.00 from the bond. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1994. COPIES FURNISHED: Mitchell H. Abelman 507 Chestnut Avenue Los Angeles, California 90042 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact The Joanne Gamache is a white, American female, and she owns 51 percent of the stock of Sun World Travel, Inc., (hereafter Sun). She submitted an application for MBE Certification in behalf of Sun to the Department of Management Services, (hereafter DMS). (R.E. 1, p. 24-31) Gillies Gamache, Joanne's husband, owns 49 percent of Sun World Travel. (Tr. 19-20) The major business purpose of this business is the sale of travel. (Tr. 35) Sun is a corporation domiciled in Florida with less than 25 employees, and a net worth of less than $1 million dollars. DMS, through its Certification Officer Morris, reviewed the file, completed an on site visit to Petitioner's business, and Sun's application for MBE Certification was tentatively denied. (Tr. 97-100) Sun was duly notified of DMS's decision, and filed a timely request for formal hearing on the intended agency action. In 1978, Gilles Gamache bought a travel agency in Broward County called Transit Travel using the joint savings of Gilles and Joanne Gamache. (Tr. 11- 12) All of the stock of this travel agency was issued to Gilles Gamache. (Tr. 19) He was both travel agent and the manager of Transit Travel. (Tr. 11) Joanne Gamache also worked in the agency making resevations, delivering tickets and doing the bookkeeping. (Tr. 15-16) Both Gamaches were also employed full time as teachers in the Broward County school system. (Tr. 12-13, 15-16) In 1981, the Gamaches moved to Tallahassee selling both their home and the business in South Florida. (Tr.14) Gilles Gamache opened another travel agency in Tallahassee called Sun World Travel using the proceeds of the sale of Transit Travel and other jointly held property. (Tr. 14 and 31) He was initially the 100 percent owner of the agency. (Tr. 19) Gilles Gamache initially worked in the travel agency full time and Joanne Gamache continued to teach school full time, and deliver tickets and work on business' books. (Tr. 16-19) She occasionally made some reservations. (Tr. 16-19) In 1989, Gilles Gamache transferred 51 percent ownership of Sun to Joanne Gamache. (Tr. 19-20) This shift resulted when Gilles Gamache became involved in additional business ventures, Joanne Gamache had more time to devote to the business because their daughter had entered school, and the transfer reflected the ownership interest which Joanne Gamache had possessed in Sun and its predeccessor, Transit Travel. It is incorrect to state that Joanne Gamache did not pay anything for her share of the business because she would have been entitled to a share of the business equal to her contribution to the joint funds used to purchase Transit Travel and jointly held property from which the money came to start Sun. (Tr. 31) The uncontroverted evidence is that Joanne's contributions to those savings was greater than Gilles' because she had always maintained her full time employment as a teacher. (Tr. 43 and HO's notes p. 6, 14, 27) The bylaws of the corporation provide that no transfer of stock which would dilute the 51 percent ownership of this corporation by minorites shall be permitted. (Tr. 21, Pet. Exh. 2, Article IV, Section 5) Concurrent with the shift in ownership and responsibilities, Sun hired an office manager because of a technical requirement that the manager of such an agency must be a certified reservationist, and Joanne Gamache is not certified. Initially, one of the existing employees, who was certified, was employed as the manager. Thereafter, Cindy Cimbora was hired as the manager; however, she is under the direction and control of Joanne Gamache. Gilles Gamache continues to be employed as a reservationist with Sun, as well has being the sole employee of two other companies which he owns. One of these companies is an importing company and the other involves text books. Gilles Gamache works 20 to 30 hours per week for Sun World Travel and 16 hours in his other businesses. (Tr. 80, 29-30) One of the major purchasing decisions made by Sun in the last five years was the purchase of the current business site. Joanne Gamache suggested the purchase of the building as a business location for Sun, and was the prime mover in its purchase, although both Gamaches participated in the negotiations for the purchase. The Gamaches own the building personally and rent the building to their businesses. The office of Gilles Gamache's companies are also in this building, but separate from those of Sun. None of the travel agency's business is transacted in the area used by his other businesses, and visa versa. (Tr. 76) Joanne Gamahe designed, selected and purchased the business' sign, entrance, and doors. She contracted for the security system for Sun. Rent paid by Sun on the building is less than $20,000 a year. Joanne Gamache earns $32,000 a year as a teacher and $7,000 a year from Sun World Travel. (Tr.46-47) Joanne Gamache goes to the business before and after school to deal with day to day business decisions providing direction to Cimbora in writing, directly, and by telepone. Joanne Gamache does a portion of her bookkeeping work at home at night and on the weekends. (Tr. 49) She estimates that she works 15-20 hours per week for Sun World Travel during the school year. Currently, Cindy Cimbora directs the other agents during business hours from 8:00 a.m. to 6:00 p.m. (Tr. 76-94) The Gamaches, as teachers, originally decided to engage in the travel business because its peak busy periods coincide with traditional school breaks. Sun employs Joanne Gamache, Gilles Gamache, Cindy Cimbora, Mary Waltman and John Moseley. Joanne Gamache makes personnel decisions, although most of the current employees were employed prior to the transfer of business ownership, and prepares and signs all payroll checks. She did interview and hire Cindy Cimbora, a white, American female in January 1992, on an employment contract which provides that Cimbora has first right of refusal if the agency is put up for sale. Cindy Cimbora is an experienced travel agent, and certified reservationist. (Tr. 50-51) Gilles Gamache signed the latest contract for the business' reservation computer system; however, Joanne Gamach negotiated the contract, and did not sign in behalf of the business because she was out of town because of an illness in her family. (Tr. 36) Joanne Gamache negotiated and signed the previous contract for reservation computer services. (Pet. Exh. 4 & 5, and Tr. 37) Joanne Gamache currently pays payroll, purchases supplies, handles accounts receivable, deals with the accountant about taxes, and gives direction to Cindy Cimbora on business to pursue. Joanne Gamache controls the finances of the business. Sun has a line of credit with First Florida Bank for which both Gamaches are jointly and severally liable. The business regularly uses credit card accounts for which both Gamaches are jointly and severally liable. Sun is unable to procure credit without the personal guarantee of both Gamaches. Cimbora and Gilles are additional authorized signatories on the business' checking account to facilitate transactions, such as making refunds to customers. Joanne Gamache writes the majority of the checks to suppliers and service providers. The company supplied a list of daily business activities for each owner at the request of the Certification Officer. (R.E. 1, p. 33-36) Gilles Gamache listed the following duties: disseminate information on new travel deals, coordinate ticket deliveries, organize travel literature files, look out for the best insurance values, monitor sales, solicit new business and make travel arrangements for clients. (R.E. 1 p. 34) Joanne Gamache listed her activities as the following: purchase goods and services, sign checks, do payroll, monitor profitability, monitor overhead costs, monitor collection of commissions, monitor stock of documents, issue refunds and process weekly airline report. (R.E. 1 p. 35) All of Joanne Gamache's functions related to management and the setting of policy, not day to day arrangements for travel; however, her duties are essential to the success of the business. In order to establish and maintain a travel agency the Airline Reporting Corporation requires that a travel agent with two years experience must run the business. (Tr. 123) To become a travel agent, a person must take a four hundred hour course covering topics including the opening and closing of a sale, learning airports, the destination of airlines and scheduling. (Tr. 88) There is a separate course requirement for the COVIA reservation system. (Tr. 88) COVIA is a system for making computerized airline reservations. Joanne Gamache has not attended these courses and is not a certified travel agent. (Tr. 75) This is the reason Sun employs Cindy Cimbora. The department's determination was based upon its conclusions regarding control of the business. To determine who has control of a family- owned business the agency looks at the contributions of each family member, the history of involvement with the business of each spouse, who sets policy, the resumes of the owners, the relative involvement of each owner in the business, and the length of time each had been active in the travel business. The agency initially concluded that Gilles Gamache's experience in the business was more extensive than his wife's, and that Joanne Gamache does not control Sun World Travel. (Tr 123-125)
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered granting the Petitioner's request for certification of the minority business enterprise. RECOMMENDED this 12th day of October, 1993, at Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1993.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Cecile M. Haake, has filed a claim against the bond in the amount of $398.00 alleging that Passport failed to perform on certain contracted services. On December 24, 1990, petitioner responded to a newspaper advertisement promoting a five-day, four-night cruise to the Bahamas for $199.00 per person. The advertisement was run by Travel Partners International (TPI), a telemarketeer selling travel certificates on behalf of Passport. Petitioner purchased a certificate authorizing two persons to take the cruise. For this, she paid $398.00. Shortly thereafter, petitioner received a package with a reservation request form. The form carried the name, address and telephone number of Passport. It should have contained an issue date and the name of the sponsor, but TPI erroneously left that information blank. Ordinarily, a certificate would expire one year after the issue date. Petitioner was not told this when she agreed to purchase the package. Around February 20, 1992, petitioner returned the reservation request form to Passport with a requested travel date of May 1, 1992. On February 26, 1992, Passport returned the form and advised petitioner that "your reservation form was not completed by your sponsor." She was told to have TPI complete the form, and resubmit it with her requested travel dates. By now, however, TPI had gone out of business. Petitioner accordingly filled in TPI's name in the space for the sponsor, and she inserted an issue date of March 15, 1991. This meant her certificate would expire on March 15, 1992, or less than a month later. She again returned the form to Passport. Since her requested travel dates were more than a year after the issue date, Passport declined to accept the reservation. Although in some cases Passport offered to extend certificates for an additional year for a $50.00 fee, there is no evidence that Passport did so in this case. When petitioner requested a refund of her money, Passport's successor corporation, Incentive International Travel, Inc. (Incentive), declined to issue a refund on the ground the package was purchased from TPI and not Passport, and Passport had never received any money from the telemarketeer. To date, petitioner has never received a refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in the amount of $398.00. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1995. COPIES FURNISHED: Cecile M. Haake 7254 Quail Meadow Road Charlotte, North Carolina 28210 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against him, as modified at hearing, and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the extensive factual stipulations set forth in the parties' Statement of Facts Admitted3: Respondent has been employed by Direct General Insurance Agency, Inc. (Direct General) for the past five years. He is the manager of a Direct General office located at 7558 West Commercial Boulevard, Lauderhill, Florida. This has been Respondent's principal business address since September 2005. Prior to September 2005, Respondent was the manager of a Direct General office located at 8300 West Oakland Park Boulevard, Sunrise, Florida. Respondent did not notify Petitioner of this September 2005 change of his principal business address within 60 days of the change. He assumed, erroneously it turns out, that Direct General's "licensing department" would inform Petitioner of the change. At all times material to the instant case, Respondent, as a licensed agent acting on behalf of Direct General, sold automobile insurance, along with three ancillary or "add-on" products. The three "add-on" products Respondent sold were an accident medical protection plan, a travel protection plan, and a term life insurance policy (hereinafter referred to collectively as the "Add-Ons"). From September 2003 to May 2006, Respondent sold these Add-Ons to approximately 1300 customers, including Ms. Roberts- Hall, Mr. Bentivegna, and Mr. Moore. For his efforts on behalf of Direct General, Respondent was paid an hourly wage, plus a commission for each of the Add- Ons he sold. He did not receive a commission for any automobile insurance policy sales he made. Direct General had sales goals with respect to Add-Ons that it expected its agents to meet. How well an agent did in meeting these goals was an "important factor" in the job performance evaluation the agent received annually from his supervisor (as Respondent was aware). An agent's failure to meet a particular goal, however, did not inevitably lead to the "fir[ing]" of the agent. Nonetheless, it was obviously in the agent's best interest to sell as many Add-Ons as possible. Respondent's supervisor was Sara Silot, a Direct General District Manager. In addition to an annual job performance evaluation, Ms. Silot provided Respondent, as well as her other subordinates, with regular feedback during the course of the year regarding their Add-On sales numbers. Each of the customers (Ms. Roberts-Hall, Mr. Bentivegna, and Mr. Moore, hereinafter referred to collectively as the "Complaining Customers") referenced in Counts I through VII and XV through XVIII of the Amended Administrative Complaint (hereinafter referred to collectively as the "remaining sliding counts") purchased the policies referenced in these counts in person at Respondent's office, where they were given paperwork to review and to then initial, sign, and/or date in numerous places in order to consummate the transaction. This paperwork consisted of, depending on the transaction, as few as 14, and as many as 20, pages of various documents (hereinafter referred to collectively as the "Transactional Paperwork"). The Transactional Paperwork clearly and conspicuously informed the reader, consistent with what Petitioner orally explained at the time of purchase to each of the Complaining Customers, that the Add-Ons being purchased were optional policies that were separate and distinct from the automobile insurance policy also being purchased and that these Add-Ons carried charges in addition to the automobile insurance policy premium. In providing his oral explanation to the Complaining Customers, Respondent circled (with a writing utensil) language in the Transactional Paperwork that conveyed this information about the Add-Ons. His purpose in doing so was to bring this language to the attention of the Complaining Customers. In view of the contents of the Transactional Paperwork, including the portions highlighted by Respondent, and what Respondent told the Complaining Customers concerning the Add-Ons, it was reasonable for Respondent to believe that the Complaining Customers were informed about the Add-On products they were being sold and were (by executing the paperwork) consenting to purchase them. The Transactional Paperwork included, among other things, a one-page Accident Medical Protection Plan form; a one- page Accident Medical Protection Plan Application form; a one- page American Bankers Insurance Company Optional Travel Protection Plan form; a one-page Statement of Policy Cost and Benefit Information-One Year Term Life Insurance Policy form; a one-page Explanation of Policies, Coverages and Cost Breakdown form; a multi-page Premium Finance Agreement; and a one-page Insurance Premium Financing Disclosure form. Among the information contained on the top half of the Accident Medical Protection Plan form was the cost of the plan. The bottom half of the form read as follows: THIS IS A LIMITED POLICY. READ IT CAREFULLY. I the undersigned understand and acknowledge that: This Policy does not provide Liability Coverage for Bodily Injury and Property Damage, nor does it meet any Financial Responsibility Law. I am electing to purchase an optional coverage that is not required by the State of Florida. My agent has provided me with an outline of coverage and a copy of this acknowledgment. If I decide to select another option or cancel this policy, I must notify the company or my agent in writing. I agree that if my down payment or full payment check is returned for any reason, coverage will be null and void from the date of inception. Insured's Signature Date I HEREBY REJECT THIS VALUABLE COVERAGE: Insured's Signature Date The Accident Medical Protection Plan Application form indicated what the annual premium was for each of the three categories of coverage offered: individual, husband and wife, and family. The top half of the American Bankers Insurance Company Optional Travel Protection Plan form summarized the benefits available under the plan. The bottom half of the form read as follows: Please Read Your Policy Carefully for a Full Explanation of Benefits Purchasing the Optional Travel Protection Plan is not a condition of purchasing your automobile liability policy. I hereby acknowledge I am purchasing an Optional Travel Protection Plan, and that I have received a copy of this acknowledgement. ___ ____ Insured's Signature Date I HEREBY REJECT THIS VALUABLE COVERAGE: Insured's Signature ____ Date The Statement of Policy Cost and Benefit Information- One Year Term Life Insurance Policy form noted the amount of the "Annual Premium for this policy" and that the "Annual Premium included a $10.00 policy fee that [was] fully earned." On the Explanation of Policies, Coverages and Cost Breakdown form, the Add-Ons were listed under the heading of "optional Policies" and the cost of each Add-On was separately stated. The first page of the Premium Finance Agreement also contained an itemization of the cost of each Add-On, as did the Insurance Premium Financing Disclosure form. On this latter form, the Add-Ons were included in a section entitled "Optional insurance coverage." The form also advised, in its prefatory paragraph, that: Florida law requires the owner of a motor vehicle to maintain Personal Injury Protection and Property Damage liability insurance. Under certain circumstances as provided in Chapter 324, Florida Statutes, additional liability insurance may be required for Bodily Injury liability. Also, additional insurance is usually required by a lienholder of a financed vehicle. Florida law does not require other insurance. The direct or indirect premium financing of auto club membership and other non-insurance products is prohibited by state law. Each of the Complaining Customers was capable of reading the above-described documents and understanding that purchasing the Add-Ons was optional, not mandatory, and involved an additional cost.4 Respondent gave each of them as much time as they wanted to read these documents, and he did not refuse to answer any of their questions. Ms. Roberts-Hall rejected the travel protection plan, and signed and dated the American Bankers Insurance Company Optional Travel Protection Plan form so indicating, in 2004, 2005, and 2006. Mr. Bentivegna rejected the term life insurance policy, as documented by his signature next to the word "Rejected," which was written in by hand at the bottom of the Statement of Policy Cost and Benefit Information-One Year Term Life Insurance Policy form. As noted above, unlike Mr. Bentivegna, Ms. Roberts- Hall and Mr. Moore each signed up for a term life insurance policy. On Mr. Moore's Application for Life Insurance, his three children, Melissa Moore, Kenneth Moore, Jr., and Timothy Brown-Moore, were named as "Beneficiar[ies]." While Kenneth Moore, Jr., and Timothy Brown-Moore were listed as "Members of Applicant's Household" on Mr. Moore's application for automobile insurance, Melissa Moore (who, at the time, was away at college) was not. Elsewhere on Mr. Moore's Application for Life Insurance, in the "Insurability Data" section, the question, "Have you during the past two (2) years had, or been told you have, or been treated for . . . a) Heart trouble or high blood pressure?" was answered, incorrectly, in the negative. Mr. Moore placed his initials next to this answer. Several days after her May 2004 purchases, Ms. Roberts-Hall telephoned Respondent and told him that she was having second thoughts about her accident medical protection plan purchase. Respondent suggested that she come to his office and speak with him in person, which she did. During this follow-up visit, Respondent went over with her the benefits of the plan, after which she told him that she was going to keep the coverage. Ms. Roberts-Hall took no action to cancel either of the Add-Ons (the accident medical protection plan and term life insurance policy) she had purchased in May 2004. In fact, she renewed these coverages in May 2005 and again in May 2006 (along with her automobile insurance policy). Prior to these renewals, in February 2005, when contacted by one of Petitioner's investigators who was conducting an investigation of possible "sliding" by Respondent, Ms. Roberts-Hall had expressed her displeasure that Respondent had "given her these additional products." Mr. Bentivegna and Mr. Moore were also contacted by Petitioner's investigative staff to discuss the Add-On purchases they had made from Respondent. Mr. Moore was contacted approximately ten months after his May 2004 purchases. The three Add-Ons he had purchased were still in effect at the time, but he took no action to cancel any of these policies. He did not renew them, however; nor did he do any other business with Respondent following his May 2004 purchases. Petitioner's policy is have its investigators "make it very clear from the beginning," when interviewing aggrieved consumers, that no promises are being made that these consumers will be "getting their money back" if they cooperate in the investigation. It does not appear that there was any deviation from this policy in Petitioner's investigation of Respondent. The investigation of Respondent led to the charges against him that are the subject of the instant case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a Final Order finding Respondent guilty of committing the violation of Section 626.551, Florida Statutes, alleged in Count X of the Amended Administrative Complaint, fining him $250.00 for such violation, and dismissing the remaining counts of the Amended Administrative Complaint. DONE AND ENTERED this 29th day of March, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 29th day of March, 2007.
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, R. Jane Frazier, has filed a claim against the bond in the amount of $813.00 alleging that Passport failed to perform on certain contracted services. On June 4, 1990, petitioner purchased a travel certificate from Jet Set Travel, a Maryland telemarketeer authorized to sell travel certificates on behalf of Passport. The certificate entitled the holder to fourteen nights' accommodations in Hawaii plus roundtrip airfare for two persons, with all travel arrangements to be made by Passport. The certificate carried the name, address and logo of Passport. During petitioner's dealings with Passport's agent, it was represented to her that for $89.00 per night, she would receive a two bedroom, oceanfront condominium. This constituted a misrepresentation on the part of the agent since the rooms were actually more expensive. Relying on that representation, petitioner authorized a $328.00 charge on her credit card payable to Jet Set Travel to be used as a credit on services purchased in Hawaii. She also paid a $50.00 refundable deposit to Passport. In August 1990, petitioner contacted Passport regarding travel dates and was told the charge on her room would be $124.00 per night, and not $89.00 per night as promised by Jet Set Travel. In charging this amount, Passport relied upon its brochure which priced the accommodations in the range of $89.00 to $124.00 per night, with the highest price for the type of room selected by petitioner. Fearing that she would lose her $328.00 fee and $50.00 deposit if she did not pay the higher amount, petitioner reluctantly agreed to send a cashier's check in the amount of $1,406.00 to Passport, which represented fourteen nights' lodging at $124.00 per night. Finally, before she departed on the trip, petitioner was required to pay another $25.00 miscellaneous fee to Passport, the basis for which was never explained. When petitioner arrived in Hawaii on October 11, 1990, she discovered that her assigned accommodations for the first week at the Kona Reef were unavailable because Passport had failed to make a reservation. Accordingly, she was forced to purchase five nights accommodations at the Kona Reef for $524.02 plus two nights at another facility for $248.00. The accommodations for the second week were satisfactory. After petitioner brought this matter to the attention of Passport, she acknowledged that she received a refund check for the first seven nights' stay, although she says she can't remember if it was for all or part of her out-of- pocket costs. Passport's contention that its books reflect an entry that she was paid for the entire amount was not contradicted although neither party had a cancelled check to verify the actual amount of the payment. Passport's testimony is accepted as being the more credible on this issue. Because petitioner relied on a misrepresentation by Passport's agent as to the type and price of accommodations being offered, she is entitled to be reimbursed her $50.00 refundable deposit (which was never returned), the $25.00 miscellaneous fee paid on September 26, 1990, for which no justification was shown, and the difference between the originally agreed on price ($89.00 per night) and the actual price ($124.00) for the last seven nights accommodations, or $245.00. Accordingly, she is entitled to be paid $320.00 from the bond.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and he be paid $320.00 from the bond. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1994. COPIES FURNISHED: R. Jane Frazier 3070 Meadow Lane Mobile, Alabama 36618-4634 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, Drewes R. Rogge, has filed a claim against the bond in the amount of $1060.00 alleging that Passport failed to perform on certain contracted services. In July 1990, petitioner purchased a travel certificate from Raka Concepts, a telemarketeer authorized by Passport to sell travel certificates on its behalf. Raca Concepts filed for bankruptcy shortly after the transaction occurred, but a Passport representative assured petitioner that it would honor all travel promised by its agent. The certificate, which cost $399.00, entitled the holder and a companion to lodging for four nights in the Bahamas, two nights in Orlando, and two nights in Daytona Beach. Also, the certificate included transportation to and from the Bahamas by a cruise line. After paying for meals on the ship, taxes and additional charges for his children, petitioner's total cost was $634.00. In his claim, however, petitioner has requested a refund of $1,060.00, which includes the cost of upgrades to better accommodations, extra meals, a "VIP package," taxi fares, and a tip. The derivation of this amount is found in petitioner's exhibit 1 received in evidence. All transportion and lodging arrangements were booked by Passport. During the trip, petitioner experienced numerous difficulties, which are described in detail in exhibit 1. Among other problems, he says the cruise ship was overcrowded and dirty, and the original accommodations in Freeport did not meet his expectations (i. e., they were unsafe) causing him to upgrade to better accommodations at a price higher than was represented by Passport's agent. The total cost of the hotel upgrade was $164.85. Also, he was not notified that his scheduled transportation via cruise line from Freeport to Fort Lauderdale was cancelled at the last minute causing him to spend an extra night in the Bahamas. The cruise line, however, paid for his additional night's lodging. When the cruise line returned the following day it sailed to Miami rather than Fort Lauderdale. Petitioner was then taken by bus to Fort Lauderdale at no charge. Finally, before the trip began, petitioner discovered that he was booked into a hotel in Haines City rather than Orlando. After petitioner lodged a protest, Passport agreed to change his accommodations to Orlando. Mainly because of these problems, petitioner has asked for a refund of virtually all of the money spent on the package. Except for the mispresentation regarding the quality of the originally assigned accommodations in Freeport and the price of the upgraded accommodations, which cost petitioner an extra $164.85, there was no showing that Passport was guilty of misrepresentation in its handling of this transaction or otherwise failed to substantially perform the contracted services. Therefore, petitioner should be reimbursed $164.85.
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 part and he be paid $164.85 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: Drewes R. Rogge 5804 Chesterfield Drive Chester, Virginia 23831 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
