20-003509 Gil Gonzalez vs. Travbuzz Inc., D/B/A Palace Tours, And Hudson Insurance Company, As Surety Status: Closed Recommended Order on Monday, November 9, 2020.

Summary: Seller of travel indebted to consumer for purchase price of train tour of India that was cancelled due to Covid, because seller's contract with consumer calls for refund, which excludes $75 item omitted from consumer's claim filed with Department.

S TATEMENT O F T HE I SSUE S

The issues are whether , pursuant to section 5 59.929( 3 ), Florida Statutes

(2019), Petitioner has been injured by the fraud, misrepresentation, breach of

contract, financial failure, or any other violation of chapter 559, part XI, by

Respondent Travbuzz, Inc. ( Respondent ) , for prearranged travel services and,

if so, the extent to which Respondent is indebted to Petitioner on account of

the injury .

P RELIMINARY S TATEMENT

By Consumer Complaint Form filed on April 23, 2020, with the

Department of Agriculture and Consumer Services (Department), Petit ioner

stated that, on January 6, 2020, he completed payment for the purchase from

Respondent of two tickets for a train tour of India at a total cost of $8600.40 ,

with a departure date of April 1, 2020. The Consumer Complaint Form states

that, in early March 2020, the emergence of the Covid - 19 pandemic made it

clear to Petitioner that the trip was not going to be possible and Petitioner

requested a refund from Resp ondent, which responded that it had already

forwarded the money to the tour operator, the Rajahstan Tourism

Development Corporation (RTDC) ; the time to obtain a refund had passed ;

and Respondent would negotiate with RTDC to try to obtain a partial refund.

The Consumer Complaint Form asserts that, on March 11, 2020, RTDC

cancelled the remaining train tours for the September through April season,

which included Petitioner's trip , but Respondent has refused to refund any or

all of Petitioner's payment ; however , Petitioner filed with his credit card

issuer a dispute as to $1911.20, which was the portion of the purchase price

that Petitioner had paid by credit card.

On May 11, 2020, Petitioner executed a Sellers of Travel Claim Affidavit

that incorporates the Co nsumer Complaint Form and attests that, on

March 23, 2020, Petitioner learned that the travel services would not be

provided or Respondent would not provide the refund.

On May 20, 2020, the Department documented a Consumer Claim

Request by Petitioner for $8600.40 against Respondent, whose Seller of

Travel registration number is ST - 41461 and was active through at least

July 18, 2020.

By letter dated June 12, 2020, to Respondent, the Department identified

Petitioner's claim and the Department's intent to adjudicate the claim

administratively in accordance with section 559.929 and chapter 120. The

Department stated that the claim allege s " injury based on at least one of the

following: fraud, misrepresentation, breach of contract, financial failure, or a

violation of the Florida Sellers of Travel Act " (Act), which refers to chapter

559, part XI. The letter provides Respondent with a right to request a formal

hearing to dispute its liability for this claim. The letter warns that a failure

to satisfy the cla im or timely request a hearing will result in the

Department's issuance of a final order requiring the satisfaction of the claim within 30 days -- failing which, the Department will demand payment from

Respondent Hudson Insurance Company (Surety), which had issued a surety

bond to Respondent , as described below .

By Petition for Formal Hearing dated July 7, 2020, Respondent timely

requested a formal hearing. The petition denies that Respondent engaged in

any fraud, misrepresentation, breach of contract, financial failure, or

violation of the Act. The petition acknowledges that Petitioner purchased the

travel services described above , but claims that Respondent was not properly

served with the June 12 letter , Petitioner's sole remedy is a breach of

contract action in court, and, pursuant to the dispute resolution clause of the

contract into which the parties entered on November 12, 20 19 (Contract),

Petitioner may file his breach of contract action only in Miami - Dade County ,

Florida.

Factually , t he petition states that Petitioner has been registered as a

Seller of Travel since 2018 and has had no prior complaints for injuries that

wou ld produce liability under its bond. The petition notes that Respondent ,

as an independent travel agent of RTDC , sell s RTDC's train tours to

Respondent's customers, such as Petitioner. The petition does not dispute

Petitioner's alleg ations of the purchase of two tickets for the train tour

departing April 1, 2020, or the payments described above .

The petition describes the contacts between Petitioner and Respondent's

principal in somewhat different terms than those described by Petitioner.

The petition states that, during the first two weeks of March, Petitioner called Respondent's principal and then emailed him a news article reporting

RTDC's decision to cancel the March departures, but not the April 1

departure, due to the pandemic, and Petitioner did not request a refund or

ask to cancel his train tour. The petition states that, on March 13, Petitioner

emailed Respondent's principal a news article reporting that RTDC had

cancelled all departures through the end of the current season -- i.e., through

the end of April -- and asked Respondent's principal to advise Petitioner of his

options. The petition adds that, on March 15, Petitioner emailed

Respondent's principal a news article reporting that some tourist operators

were granting refunds, but RTDC had not done so, even though the Indian

government had cancelled all tourist visas through April 15, and Petitioner hoped that Respondent would immediately issue refunds. The petition notes that, also on March 13, Petitioner emailed Respondent's principal that the

Indian government had cancelled all nongovernmental visas and asked

Respondent to keep him informed as to what RTDC decided to do. The

petition claims that RTDC refused to refund any payments for train tours,

but , by email dated March 19, Respondent infor med Petitioner that it had

been able to negotiate "as a special case" an option to postpone the train tour ,

but Petitioner failed to accept the offer by the stated deadline of March 25.

The petition raises several factual defenses under the Contract :

1) P etitioner waived his right to seek a refund because he declined to obtain

travel insurance to cover his losses in the event of the cancellation of the

train tour; 2) the cancellation of the train tour occurred after the final

deadline for a cancellation wi th any refund; 3) Respondent is not liable for

any loss suffered by Petitioner for the wrongful, negligent or arbitrary acts or

omissions of an independent supplier not under the control of Respondent, for

any damages arising from Petitioner's interaction with any retailer or vendor,

or for acts of God, medical epidemics, quarantines or other causes not under

Respondent's control. The petition also claims a setoff of the $1911.20 that Petitioner disputed with his credit card issuer on or about April 20, 2020.

By letter filed August 7, 2020, the Department transmitted the file to

DOAH with instructions to conduct a hearing on Petitioner's claim of

$8600.40 against the S urety 's bond.

On October 9, 2020, the parties filed a Prehearin g Statement, which

states that the purchase price of the travel services was $8675.40 -- the

addit io nal $75 is described below. Petitioner restate d his above - described

claims and , for the first time, relie d on the following provision of the

Contract: "In the event that a tour is canceled through no action of the Client,

the Client will receive a full refund of US$." Respondent restate d most of its

above - described defenses and elaborate d upon its claim of a lack of subject

matter jurisdiction by contending that the Departm ent has proposed no

agency action. The Surety adopt ed Respondent's defenses.

At the hearing, Petitioner called two witnesses and offered into evidence

11 exhibits: Petitioner Exhibits A through K . Respondent called one witness

and offered into evidence eight exhibits: Respondent Exhibits 1 through 8 . All

exhibits were admitted except for Petitioner Exhibits F and J, which were

proffered.

The parties did not order a transcript. Respondent filed a proposed

recommended order on October 30 , 2020.

F INDINGS OF F ACT

1. Respondent provides prearranged travel services for individuals or

groups . Having relocated from New Jersey to Miami, Florida, evidently in

2018, Respondent has been registered at all material times with the

Department as a "seller of travel" within the meaning of the Act and holds

registration number ST - 41461.

2. With Respondent as the principal, t he Surety issued a Sellers of Travel

Surety Bond bearing bond number 10076529 in the amount of $25,000 , ef fective from June 22, 2018, until duly cancelled (Bond).

3. O n November 12, 2019, Petitioner , a resident of San Diego, California,

purchas ed from Respondent one ticket for himself and one ticket for his

daughter on the Palace on Wheels : A Week in Wonderland Tour

(POWAWIWT) with a departure date of April 1, 2020. Earnestly d escribed by

Respondent's principal as a "cruise ship on wheels," the POWAWIWT

provides one week's transportation , accommodations , and meals for travelers

seeking to visit several of India's cultural and historical landmarks without

the inconvenience of changing hotels , finding restaurants, arranging intercity

transportation , or, it seems, obtaining refunds for trips that never take place.

4. The purchase price for two POWAWIWT tickets was $8600.40 .

Additionally, Petitioner purchased from Respondent a guided side trip at one

location for $75 . At the time of the purchase of the two POWAWIWT tickets ,

Respondent charged Petitioner's credit card for the required downpayment of

$ 1911.2 0 for both tickets . By personal check dated January 6, 2020,

Petitioner timely paid the balance due for both tickets of $6689.20 . By

personal check dated February 19, 2020 , Petitioner paid the $75 charge for

the side trip.

5. The credit card issuer duly debited Pe titioner's account and credited

Respondent's account for the charged amount , and Respondent obtained the

funds represented by both checks. Petitioner later disputed the credit card

charges, and the credit card company debited the $ 1911.20 amount in dispute

from Respondent's account . A lthough Petitioner claimed that his account had

not been credited for this amount , a s of the evening prior to the hearing,

Respondent's credit for these charges had not been restored , so t he $1911.20

still see ms to be in the possession of the credit card issuer. D espite availing

himself of the remedy available under the Act, Petitioner has not authorized

the credit card issuer to restore to Respondent's account the credit for the

$ 1911.2 0 .

6. This case is a by product of the emerging Covid - 19 pandemic, which, as

discussed below, caused RTDC to cancel Petitioner's April 1 POWAWIWT .

A ccording to Respondent, RTDC has refused to refund Petitioner's payment

of $8600.40 gross or about $8000 after deducting Respondent's 7%

commission. 1 Although Respondent's principal deflects the blame to RTDC

for its no - refund policy and to Petitioner for supposedly waffling on the relief

that he sought for the cancelled trip , Respondent quiet ly has declined to

refund its commission of approximately $600, as well as the additional $75

payment , although the failure to refund the $75 may be explained by

Petitioner's failure to address this negligible amount until he prepared the

Prehearing Statem ent in this case.

1 discounted the price of the April 1 Respondent's principal testified that Respondent

POWAWIWT by reduc ing its standard 17% commission, which would approximate $146 0 , to

7% , for a 10% discount, or about $860 , leaving a net commission of about $600.

7. Respondent's factual defenses to Petitioner's refund claim include the

several defenses set forth above and a new defense asserted for the first time

at the hearing: Petitioner cancelled his POWAWIWT before RTDC cancelled

his POWAWIWT, so Petitioner was never entitled to a refund under the

terms of the Contract . This defense oddly finds more support in Petitioner's

allegation that he demanded a refund before RTDC cancelled the April 1

POWAWIWT than in Respondent's allegat ion that Petitio ner did not demand

a refund until the March 13 email , in which he reported that RTDC had

cancelled the April 1 POWAWIWT. 2 Regardless, this new defense is no more

supported by the facts than Respondent's previous ly stated defenses.

8. Respondent's who - cancelle d - first defense is based on emails and

telephone calls. Petitioner's emails portray his consistent efforts to obtain a

refund for the trip , but only after RTDC had cancelled the April 1

POWAWIWT . T he lone email of Respondent's principal serves to reveal

Respondent's inability to respond meaningfully to Petitioner's efforts to

protect his travel purchase and raises the possibility of bad faith on the part

of Respondent's principal.

9. On March 9 , Petiti oner emailed Respondent's principal a Times of

India news article that reported that RTDC had cancelled the March

POWAWIWTs, but not the April 1 POWAWIWT. Th is email does not seek to

cancel the April 1 POWAWIWT, but expresses concern that RTDC will cancel

the trip. On March 13, Petitioner emailed Respondent's principal a Times of

India news article that reported that RTDC had cancelled the remaining

POWAWIWTs through April . Th is email complains that RTDC had not

2 This oddity is unsurprising given the patter of each witnes s's testimony . Respondent's

principal peppered his testimony with false apologies while , in a reassuring tone, he gently

deferred and deflected blame and patiently , but mistakenly, insisted that the Co ntract did

not require him to refund monies paid for a train trip that never took place. Petitioner

frenetically rebutted each factual defense while somehow missing the salient points that he

had paid for a POWAWIWT that never took place, Respondent refuse d to refund Petitioner's

payment , and the Contract call s for a refund . Although a retired appellate attorney for the

state of California, Petitioner seems to have grounded his early demands for a refund on

natural law, because he appears not to have discov ered one of the crucial contractual

provisions, as discussed below, until he prepared the Prehearing Statement

responded to Petitioner's requests for inform ation , requests advice as to his

available options, and ask s for some assurance that Petitioner would not lose

his payments of $8600 for the train tour plus an unspecified amount "for post

trip activities" that are also unspecified. On March 15, Petitioner emailed

Respondent's principal a news article in The Hindu that reported that

another operator of train tours in India was paying refunds for cancelled trips

and all tourist visas into India had been cancelled through April 15 . This

email implores Respondent to do the right thing and immediately refund the

money paid for the cancelled trip. A few hours later, Petitioner emailed

Respondent's principal an India West news article that reported that India

was now in a complete lockdown and the Indian go vernment had cancelled all

nondiplomatic visas . Th is email asks Respondent's principal to keep

Petitioner informed on what RTDC was going to do and expresses hope that

RTDC issues refunds.

10. On March 19, Respondent's principal emailed Petitioner that "w e are

reaching some agreement with our ground operator for the train and this is

what is being finalized." The statement clearly discloses no agreement , but ,

at best, an expectation of an agreement. The email describes the expected

agreement to allow Petitioner to take a POWAWIWT during the following

season from September 2020 through April 2021, but requires Petitioner to

select travel dates within six days and pay whatever fare is in effect at the

time of the trip . Respondent's principal never explained why Pe titioner had

only six days to accept an "offer" that RTDC had not yet authorized its agent

to make , might not authorize within the six - day deadline , and might not ever

authorize . Respondent's demand for a near - immediate acceptance of a

nonexistent offer of a trip at market price was unreasonable and suggests

that Respondent's principal was merely trying to induce Petitioner to make

an offer in the form of an acceptance , so the principal might have greater

bargaining leverage with RTDC.

11. On March 23, Petitioner emailed Respondent's principa l, noting a

series of unanswered emails and phone calls from Petitioner to the principal

since the receipt of the March 19 "offer." Asking for clarification of the terms

of the "offer," Petitioner's emai l concedes that it appears that Petitioner's

money is lost and asks merely that Respondent show him the courtesy of

calling him, confirming his fear , and providing a full explanation of what

happened. Later that day, an employee of Respondent emailed Peti t i oner and

informed him that the principal was suffering from a respiratory disorder

and was unable to talk, so that future communications needed to be by email.

Petitioner received no more emails from Respondent's principal, who , having

returned to the Uni ted States after taking a POWAWIWT in early March,

was later diagnosed with Covid .

12. The telephone calls are undocumented. The credibility of Respondent's

principal started to leave the tracks with the March 19 email of an illusory

"offer" with an immediate deadline for acceptance. A month later, in

responding to the disputed credit card charge, the credibility of Respondent's

principal derailed complet ely , as he attempted to resecure the $1911.20 credit

with material misrepresentations of what had taken place in an email dated

April 21 to the credit card issuer. The email claims that Petitioner never cancelled the trip, so he was a "no - show" -- a Kafkaesque claim th at implies a

duty to report for a trip that , undisclosed in the email, the sponsor had

cancelled over two weeks prior to departure. The email states that, at the

beginning of March, Petitioner called and said he did not feel comfortable taking the trip , bu t the trains were still running and "'Cancel for Fear'" was

not an allowable reason for waiving a cancellation fee -- perhaps true, but irrelevant. The email encloses a copy of the principal's March 19 email , states

that Petitioner did not accept this "offer , " and concludes that "[s]ince

[Petitioner] did not cancel or inform us of the decision for travel before the

travel date, the charge is valid as per the terms and conditions . " The email

cites a provision of the Contract addressing no - shows and, despite th e

absence of any mention of RTDC's cancellation of the trip due to the

pandemic, adds a seemingly obscure reference to another provision of the

Contract addressing acts of God, medical epidemics, quarantines, or other

causes beyond Respondent's control for the cancellation of a trip . Notably , t h e

email omits mention of the provisions of the Contract , described below,

clearly calling for a refund.

13. On balance, it is impossible to credit the testimony of Respondent's

principal that, in telephone calls, Petiti oner cancelled the trip before RTDC

cancelled the trip or, more generally, that Petitioner could not settle on an

acceptable remedy, and his indecisiveness prevented Respondent's principal

from negotiating a settlement with RTDC -- an assertion that, even if proved,

would be irrelevant .

14. Notwithstanding resolute attempt s by Respondent's principal to

misdirect attention from the se unavoidable fact s, Pet i tioner has paid for a

train tour that never took place, RTDC cancelled the tour, and Petitioner

never cancel led his tickets. The question is therefore whether, in its Contract,

Respondent successfully transferred the risk of loss to Petitioner for a trip

cancelled by the tour sponsor due to the pandemic. Analysis of this issue

necessitates consideration of sever al provisions of the Contract that, despite

its prolixity, is initially remarkable for two omissions: Respondent's Seller of

Travel registration number 3 and the name of RTDC as the sponsor of the

POWAWIWT.

15. Respondent claims that Petitioner caused his injury by declin ing to

purchase travel insurance. The cover page of the Contract contains a section

3 Section 559.928(5) requires a seller of travel to include in each consumer contract the

following: "[Name of seller of travel] is registered with the State of Florida as a Seller of

Travel. Registration No. [X]." Even absent any mention of a statute , th is disclosure provides

a consumer with some means to learn of the somewhat ob scure Act, the seller's statutory

responsibilities, and the relief that may be available to a consumer for a seller's failure to

discharge these responsibilities. Petitioner testified only that he somehow learned of the Act ,

but never said how . T he record does not permit a finding that th e omission of the statutory

disclosure was purposeful, so as to conceal from the consumer the existence of the Act, or was

a product of guileless ineptitude.

called "Travel Insurance." This section provides an opportunity to purchase

travel insurance from an entity "recommended by [Respondent]." The op tions

are to check a box to purchase from Respondent's recommended entity or to

check a box that states the traveler undertakes to obtain travel insurance

independently , but this provision adds that, if travel insurance is not

obtained, the consumer "absol ve[s Respondent , t] he tour operator and the

travel agent of all possible liabilities which may arise due to my fai l ure to

obtain adequate insurance coverage." Respondent offered no proof that its

recommended travel insurance or other available travel insur ance would pay for the cancellation of the April 1 POWAWIWT due to the pandemic , so

Petitioner's choice not to purchase travel insurance is irrelevant .

A dditionally , the clear provisions of the Contract, discussed below, requiring

a refund for a trip cance lled by the sponsor rebut Respondent's labored effort

to apply the travel insurance provision to shift to the customer the risk of loss

posed by a cancellation of the trip by the sponsor -- a risk that might be better

addressed by Respondent's purchase of commercial business interruption

insurance .

16. Respondent claims that the trip was cancelled by RTDC too close to

the departure date to entitle Petitioner to any refund. The Contract contains a section called "Cancellation Fees." This section provides for in creasing

cancellation fees based on the proximity of the cancellation to the trip

departure date. The Contract provides a 10% cancellation fee "if cancelled"

more than 90 days prior to departure, 2 0 % cancellation fee "if cancelled "

between 89 and 35 days p rior to departure, and 100% cancellation fee "if

cancelled" within 34 days prior to departure. The Contract fails to specify if

this provision applies to cancellations at the instance of the consumer or the

trip sponso r, but the graduated fee reflects the greater value of a trip

cancelled well in advance of the trip departure date, so that the trip can be

resold . Obviously , a trip cancelled by a sponsor cannot be resold, so the

cancellation fee provision applies only to a cancellation by a customer and

does not shield Respondent from liability in this case.

17. Lastly, Respondent relies on a section of t he Contract called

"Responsibility -- Limitation of Liability." P rovisions in this section warn that

Respondent acts as an agent for a trip sponsor, such as the railroad, from

which Respondent purchases the travel services. Although Respondent

makes every effort to select the best providers of travel services, Respondent

does not control their operations and thus

CANNOT BE HELD LIABLE FOR ANY

PERSONAL INJURY, PR OPERTY DAMAGE OR

OTHER CLAIM which may occur as a result of any and/or all of the following:

(1) the wrongful, negligent or arbitrary acts or

omissions on the part of the independent suppli e r,

agent, its employees or others who are not under the direct co ntrol or supervision of [Respondent];

[or]

* * *

(3) loss, injury or damage to person, property or

otherwise, resulting directly or indirectly from any

Acts of God, dangers incident to medical

epidemics, quarantines, delays or cancellations

or alterations in itinerary due to schedule changes, or from any causes beyond [Respondent's] control.

In case of overbooking, [Respondent] will only be

liable for refund [sic] the charged amount to the

guest. [Respondent] shall in no event be responsible

or liable for any direct, indirect, consequential,

incidental, special or punitive damages arising

from your interaction with any retailer/vendor, and [Respondent] expressly disclaims any responsibility or liability for any resul ting loss or damage.

18. The "Responsibility -- L imitation of L iability " provis i on s are general

disclaimers of liability for various forms of damages arising out of the acts

and omissions of third parties or forces outside the control of Respondent,

such as the pandemic. These provisions represent a prudent attempt to avoid

liability for damages , such as the lost opportunity to visit a gravely ill

relative who has since died, that may amount to many multiples of the price

paid for a trip.

19. Complementing these general provisions limiting Respondent's

liability, other provisions limit Respondent's liability to the payment of a

refund of the purchase price of a trip cancelled by the sponsor. T he section

immediately following the "Responsibility -- L imitation of L iability " section is

the "R eservation of R ights " section , which provides : "The company [ i.e.,

Respondent] reserves the right to cancel any tour without notice before the

tour and refund the money in full and is not responsible for any direct or

indirec t damages to the guest due to such action." A s noted above, the

Contract omits any mention of Respondent's principal, so as to Respondent in

the place of its undisclosed principal ; thus, a provision referring to a

cancellation of the tour by Respondent inc ludes a cancellation of the tour by

Respondent's principal.

20. As cited by Petitioner in the Prehearing Statement , the other relevant

provision is in the " P rices, R ates & F ares " section and states that, if a

customer cancels, any refund to which the customer is entitled, under the above - cited cancellation fee provisions, will be dependent on then - current

exchange rates , but "[i]n the event that a tour is canceled through no action

of the Client, th e Client will receive a full refund of US$."

4 This provision

entitles a consumer to : 1) a refund and 2) a refund in U.S. dollars ,

presumably unadjusted for currency fluctuations since the payment. At the

hearing, Respondent's principal tried to construe the "US$" provision as a

reference to the currency to which a consumer is entitled to be paid when a

consumer cancels a trip under conditions in which the customer is entitled to

a refund , but this c onstruction ignores that the cited clause applies to

4 An identical "US$" provision is found at the end of the section called "A Note About

Cancellation for All Tours/Reservations."

cancellations occurring through no action of the consumer and imposes on

Respondent the obligation to make a "full refund" in such cases.

C ONCLUSIONS OF L AW

21. DOAH has jurisdiction. §§ 120.569 , 120.57(1) , and 559.929(3).

22. The defense of a lack of personal jurisdiction is inapt in an

administrative proceeding in which a respondent has timely requested and

fully participated in a formal hearing. Section 120.569(1) requires all orders

to be "delivered or mailed" to each party at the address of record , 5 but t he

issue of service arises only if a party fails timely to file a request for a hearing, because section 120.569(2)(c) generally requires the dismissal of a

petition that has not been timely filed. Once a party has preserved its right to a formal hearing, any shortcomings in the means of service lose their

importance , because, unlike the judicial action between two private litigants,

the regulated party is exercising, pursuant to its re gistration, its privilege to

provide regulated services.

23. The defense of a lack of subject matter jurisdiction is based on two

grounds. First, Respondent argues that this proceeding is a breach of contract

action, for which exclusive jurisdiction lies in th e courts. N ot every dispute

involving a contract necessarily vests jurisdiction in the courts . T he

determinative question is whether the dispute requires, per se, an

adjudication of the parties ' legal rights a nd responsibilities under the

contract , in which case exclusive jurisdiction lies in the courts, or whether the

dispute involves the exercise of administrative jurisdiction, as to which the

parties' rights and responsibilities un d er the contract are subordinate to

determining the availability of th e statutory administrative remedy for

prohibited acts and omissions . In this case, the Department is exercising its

jurisdiction over a seller of travel to ensure that it satisfies its indebtedness

5 Section 120.60(5) requires service of an administrative complaint by personal service,

certified mail, or, in some cases, publication, but only in a proceeding to discipline a license.

to a consumer arising out of any injury that the consumer may have suffered

due to the seller's fraud, misrepresentation, breach of contract, financial

failure, or other violation of the Act ; and, absent a timely payment, to order

the seller's surety to pay the claim out of the surety bond . Compare Vincent J.

Fas ano, Inc., v. Sch. Bd. of Palm Bch. Cty. , 436 So. 2d 201, 202 - 03 (Fla. 4th

DCA 1983) (per curiam) (an administrative proceeding cannot produce an

adjudication of the corporations' legal rights and responsibilities, but must necessarily remain "within the f ramework of the powers conferred upon the

agency").

24. Second, Respondent argues that the Department has not taken

intended agency action, as contemplated by section 120.569(1) . T his defense

fails to consider the Department's June 12 letter , which notifies Respondent

that, if it failed timely to request a formal hearing, the Department would adjudicate Petitioner's claim, order Respondent to pay the claim, and, in the

absence of timely payment, order the Surety to pay the claim on the B ond.

The June 12 lett er constitutes intended agency action or, in the language of

section 120.569(1), notifie s Respondent of a proceeding in which the

Department was determining its substantial interests .

25. Alternatively , an absence of intended agency action does not preclude

ad ministrative jurisdiction. Section 559.929(3) advises that the Department

is merely a "nominal" party , and Respondent's defense of a lack of subject

matter jurisdiction appears to turn on the low - profile role of the Department

in this proceeding . However, i n several types of administrative proceedings,

an agency is not even a nominal party and does not notify the nonagency

party of intended agency action , even though the agency retains final order

authority. See, e.g. , § 604.21 (right to administrative hearing for any person

injured by a dealer in agricultural products ; intended agency action as in

present case ); § 320.641(3) (right to administrative hearing for a motor

vehicle dealer adversely affected by a manufacturer's proposed adverse action

on franchise agreement ; no intended agency action ); § 760.11(1) (right to

administrative hearing for any person aggrieved by a covered person's

violation of Florida Civil Rights Act ; arguable intended agency action in the

form of f inding o f reasonable cause ). In at least three types of proceeding s ,

the legislature has vested final order authority in a DOAH administrative

law judge and dispensed with need for an(other) agency. See § 552.40

( exclusive remedy of administrative hearing for person whose real or personal

property has been injured by use of explosives in mining construction

materials); § 394.467(7) ( exclusive remedy of administrative hearing for

residential facility that proposes continued involuntary placement of person

un der the Baker Act); §§ 766.303 and 766.304 ( exclusive remedy of

administrative hearing for person seek ing monetary award under the Florida

Birth - Related Neurological Injury Compensation Plan).

26. C onstitutional limitations aside, DOAH acquires subject matter

jurisdiction over matters that the legislature assign s to DOAH for hearing . I f

a particular matter fails to fit within the intended - agency - action template of

section 120.569(1) , the legislature may nevertheless mandate administrative

jurisdiction, typi cally by requiring adjudication of the matter pursuant to

section 120.569 or chapter 120 . As the legislature enacted section 120.569(1) ,

so it may enact a statute that provides for an administrative hearing under section 120.569(1), even though the dispute does not otherwise satisfy the

requirements of section 120.569(1).

27. As a creation of statute, an administrative proceeding must conform

to its enabling legislation. S ee, e.g. , Fiat Motors of N. Am., Inc. v. Calvin ,

356 So. 2d 908 (Fla. 1st DCA 1978) . Subject matter j urisdictio n therefore

exists only to the extent that the party seeking relief has invoked the jurisdiction of the agency or DOAH in compliance with the relevant statute s .

Here, section 559.929(3) requires Petitioner to file with the Departm ent a

claim in the form of an affidavit against a registered seller of travel in

connection with the purchase and sale of travel services within 120 days after

the alleged injury. The claim for $8600.40 meets each of these requirements,

so subject matter j urisdiction attaches to this claim.

28. On the other hand, the re is no subject matter jurisdiction for the claim

for $75 : Petitioner never submitted the claim in the form of an affidavit to the

Department, and, of course , the Department did not transmit this claim to

DOAH for a formal hearing. As Respondent contends, an administrative

proceeding is not a breach of contract action, as to which the underlying

complaint may be freely amended or supplemented. A party's abilit y to

amend a charging pleading in an administrative proceeding depends on

statutory jurisdiction for the portion of the claim that is new, so Petitioner's

claim for a refund of the $75 for the side trip must be denied .

29. Petitioner has the burden of proving his claim by a preponderance

of the evidence. Dep't of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st

DCA 1981); § 120.57(1)(j).

30. A "seller of travel" is a person who offers prearranged travel services

for a fee, commission, or other consider a tion. § 559 .927(11). A seller of travel

must register with the Department, § 559.92 8(1), and, unless exempt, post a

performance bond in the amount of $25,000 in most cases. § 559.929(1)(a).

The bond is for the use and benefit of any consumer whom the seller of travel

has "injured by [the seller's] fraud, misrepresentation, breach of contract, or

financial failure, or any other violation of [the Act] . "

31. A consumer meeting these criteria may file a claim against the seller's

bond. The claim "must be submitted in writing on an affidavit form adopted

by [D]epartment rule" within 120 days after an alleged injury, discovery of

injury, or judgment. Proceedings on a claim are governed by chapter 120,

and the Department is only a nominal party to any proceeding under

sections 120.569 and 120.57. § 559.929(3).

32. The seller of travel has 30 days within which to pay the consumer any

"indebtedness" determined to be owing by the Department in a final order.

Absent a timely payment, the Department shall demand payment from the

surety t hat issued the bond. Absent a payment by the surety, the

Department may file an action in circuit court. § 559.929(5). 6

33. The Act does not define the allowable elements of a seller's

"indebtedness" that may be adjudicated by the Department's final order. But

separation - of - power case law prohibits an administrative remedy for most, if

not all, forms of unliquidated damages. See, e.g. , Broward Cty. v. La Rosa ,

505 So. 2d 422 (Fla. 1987). But w here the seller has breached a contract

provision calling for a refun d, t he indebtedness is clear -- a refund.

34. Section 559.929(3) imposes liability on a seller of travel for any fraud,

misrepresentation, breach of contract, financial failure, or other violation of

the Act that has injured a purchaser of travel services. In the subject case,

Respondent's principal m isstated the facts twice -- first, in its March 19 email

to Petitioner and, second, in its April 21 email to the credit card issuer.

However, the March 19 misstatement lack s materiality. Nothing came of

Respondent's attempt to induce Petitioner to make a fir m offer in response to

the "offer" of RTDC . The April 21 email may have induced the credit card

issuer not to credit the amount in dispute to either party, but even this misstatement is immaterial because it has not yet clearly injured Petitioner.

Nor is t here any evidence of Respondent's financial failure. A s detailed in the

Findings of Fact, Respondent's liability in this case arises out of its failure to

honor the Contract , which calls for Respondent to refund to Petitioner his

purchase price for the two tickets for the April 1 POWAWIWT.

35. The final detail is the amount of the refund. As noted above, the re is

no jurisdiction over the $75 payment . Although jurisdiction attaches to th e

remaining payment s totaling $8600.40 , Petitioner has not proved that

Resp ondent's indebtedness extends to the $1911.20 that was debited from

Petitioner's account, credited to Respondent's account, and later debited from

6 The Department is also authorized to impose discipline against a registered seller and its

registration, § 559.9355 , and to pursue broad civil relief. § 559.936. A violation of any

provision of the Act subjects the seller to prosecution for a misdemeanor or, in rare cases, a

felony . § 559.937.

Respondent's account. Respondent is not indebted to Petitioner for this sum

because, due to Petitioner's init iation of the dispute process under his credit

card agreement, Respondent does not presently possess the $1911.20 . Under

these circumstances, it would be unfair to require Respondent to "refund"

that which it does not have -- and possibly allow Petitioner to recover this

amount twice -- especially when the uncertainty that attaches to the present

status of this sum arises from Petitioner's decision s to effect a self - help

refund and not to dismiss th e credit card dispute once he pursued relief under

the Act . Not hing in this paragraph is intended, though, to insulate

Respondent from further claims by Petitioner, the Department, or the state

attorney's office, in an administrative or judicial forum, 7 if the credit card

issuer again issues a credit to Respondent's a ccount for this amount or any

part of it and Respondent does not promptly refund such credit to Petitioner .

R ECOMMENDATION

It is

RECOMMENDED that the Department enter a final order directing

Respondent to pay Petitioner the sum of $6689.20 within 30 days of the date

of the order and, absent timely payment, directing the Surety to pay

Petitioner the sum of $6689.20 from the Bond.

7 Perhaps the recommended and final orders in this case will persuade the credit card issuer

to issue the credit for the $1911.20 to Petitioner, who is entitled to this disputed sum. But, if

Respondent regains possession of this disputed sum and refuses to r efund it to Petitioner,

the Department may wish to consider suspending or revoking Respondent's certificate or

referring the matter to the Miami - Dade County State Attorney's Office. See the preceding

footnote.

D ONE A ND E NTERED this 9 th day of November , 2020 , in Tallahassee, Leon

County, Florida.

R OBERT E. M EALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9 t h day of November , 2020 .

C OPIES F URNISHED :

Gil Gonzalez

8444 Mono Lake Dr ive

San Diego, California 92119

(eServed)

Benjamin C. Patton, Esquire

Mc R ae & Metcalf, P.A.

2612 Centennial Place

Tallahassee, Florida 32308

(eServed)

H. Richard Bisbee, Esquire

H. Richard Bisbee, P.A.

1882 Capital Circle Northeast , Suite 206

Tallahassee, Florida 32308

(eServed)

W. Alan Parkinson, Bureau Chief

Department of Agriculture and

Consumer Services

Rhodes Building, R - 3

2005 Apalachee Parkway

Tallahassee, Florida 32399 - 6500

Tom A. Steckler, Director

Division of Consumer Services

Department of Agriculture and

Consumer Services

Mayo Building, Room 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.