22-000076 Maria E. Dichov vs. Hat Tours, Llc, And American Contractors Indemnity Company, As Surety And Capitol Indemnity Corporation, As Surety Status: Closed Recommended Order on Friday, March 25, 2022.

Summary: Petitioner established that she is entitled to full reimbursement for travel costs paid to HAT Tours. HAT Tours owes Petitioner $6,235, the remaining unpaid reimbursement amount.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ARIA E. D ICHOV ,

Petitioner ,

vs. Case No. 22 - 0076

H AT T OURS , LLC, A ND A MERICAN

C ONTRACTORS I NDEMNITY C OMPANY , A S

S URETY A ND C APITOL I NDEMNITY

C ORPORATION , A S S URETY ,

Respondents .

/

R ECOMMENDED O RDER

On February 24, 2022, Administrative Law Judge (ÑALJÒ) Yolonda Y.

Green of the Florida Division of Administrative Hearings ( Ñ DOAH Ò )

conducted a duly - noticed hearing by Zo om technology pursuant to sections

120.569 and 120.57(1), Florida Statutes (2021).

A PPEARANCES

For Petitioner: Maria E. Dichov , pro se

1755 Filbert Street, Ap artment 2B

San Francisco, California 94123

For Respondent HAT Tours :

Steven W. Moore, Esquire

8240 118th Avenue North , Suite 300

Largo, Florida 33773

For Respondent American Contractors Indemnity Company :

(No appearance) 1

For Respondent Capitol Indemnity Corporation :

(No appearance)

S TATEMENT OF T HE I SSUE

Whether Petitioner is entitled to reimbursement of $8,900 for the travel

package she pu rchased from HAT Tours, LLC , a Ñseller of travel, Ò pursuant

to an agreement between the parties .

P RELIMINARY S TATEMENT

On June 25, 2021, Petitio ner, Maria Dichov, filed a Sellers of Travel Claim

Affidavit with the Florida Department of Agriculture and Consumer Services,

Division of Consumer Services (Department), seeking payment on a surety

bond by American Contractors Indemnity Company, as surety , and Capital

Indemnity Corporation, as s urety on behalf of Respondent, HAT Tours, LLC

( Ñ HAT Tours Ò or Ñ Respondent Ò ), naming the Department as the obligee. HAT

Tours requested a formal hearing and this matter was referred to D OAH for

assignment of an ALJ.

This matter was scheduled for hearing on February 24 , 2022, and it

commenced as scheduled. Petitioner testified on her o w n behalf and offered

the testimony of two witnesses: J. Scott Bayes and Elizabeth Yohan.

Petitioner Ôs Exhibits 1 through 11 were admi tted into evidence. HAT Tours Ô

owner, Grethe Arani, testified . T here were no other witnesses offered. HAT

Tours Ô Exhibits 1 through 4 were admitted into evidence.

1 On the date of the hearing , Garen H. Kasparian , Esq uire , Associate Bond Claims Attorney

for American Contractors Indemnity Company, attended the hearing. However, he did not

seek to represent the Company as counsel. He was also not accepted as a qualified

representative in this matter.

The proceeding was recorded by a court reporter, but the parties did not

order a copy of th e transcript. Both parties timely filed Proposed

Recommended Orders , 2 which have been considered in preparation of this

Recommended Order.

Unless otherwise indicated, citations to the Florida Statutes refer to the

2019 edition, which was in effect when t he agreement was entered.

F INDINGS OF F ACT

Based upon the exhibits and testimony offered at hearing , the following

F indings of F act are made :

1. At all times material to the matter, P etitioner was a retired consumer

living in San Francisco, California . Sh e purchased a travel tour with HAT

Tours that was scheduled to take place in Northern Europe.

2. Respondent, H AT Tours, is a Ñseller of travelÒ that organizes and

operates tour services for opera tours in Europe. HAT Tours is located in

St. Petersburg, Flo rida.

3. On August 24, 2019, Ms. Dichov entered into an agreement with HAT

Tours for a tour to visit opera houses in Germany with a departure date of

May 4, 2020 , and return date of May 16, 2020 .

4. The total amount for the tour was $8,900. Ms. Dichov pai d a required

deposit of $2,000 to HAT Tours on August 24, 2019, and she paid the

remaining required balance of $ 6,900 on or about February 3, 2020 . Thus,

Petitioner paid the full amount of $8,900 for the tour.

5 . Ms. Arani, one of HAT Tours Ô owners, testif ied that i n March 2020, she

learned that HAT Tours would be unable to conduct the tour due to a shut

down in Europe related to the COVID - 19 pandemic. However, she was aware

of what was happening with the COVID - 19 outbreak in other areas of Europe

2 Petitioner attached an email that was not produced during the final hearing. Thus, it is not

a part of the record.

before th e shut - down. T he tour did not depart for travel to Europe as

scheduled. However, HAT Tours assured the travelers that the tour was not

cancelled, but rather, postponed at that time.

6 . Ms. Dichov was lulled by the promise that the tour was postponed and

wo uld be rescheduled at a later date.

7 . On M ar ch 5, 2021, Ms. Dichov received an email from HAT Tours

notifying her that the tour was postponed Ñuntil further notice.Ò The

competent substantial evidence establishes that M s. Dichov learned that the

travel se rvices she contracted for would not be provided to her on March 5,

2021 .

8 . On April 12, 2021, a fter not receiving any definite information from

HAT Tours regarding new tour dates, Ms. Dichov demanded a full refund of

the tour cost of $8,900.

9 . On April 16, 2021, HAT Tours offered a refund for the opera tickets ,

and o n April 27, 2021, Ms. Dichov rejected the offer as she was not certain of

what she would be willing to accept as a refund.

1 0 . On June 25, 2021, Petitioner filed a claim affidavit against HAT Tours Ô

performance bond with the Department seeking reimbursement for the full

cost that she paid for the Europe an tour travel package that was not

furnished to her. Ms. Dichov filed her claim within 120 days of her learning

that the tour would be postpon ed indefinitely and her discovery that she

would not be reimbursed for the full costs of the tour . Thus, the undersigned

finds Ms. Dichov timely filed her claim.

1 1 . Since the agreement for performance of the agreement was entered

into on August 24, 2019, the bond in effect at that time would be applicable in

this matter.

1 2 . On July 28, 2021, without any further discussion, Ms. Dichov received

a check from HAT Tours for $2,665. On August 9, 2021, she advised

HAT Tours that she was not accepting the amount as settlement and again

demanded full reimbursement for the tour cost . The undersigned finds that

Ms. Dichov did not accept the partial refund a s settlement of the dispute

regarding performance of the tour, but rather, the $2 , 665 payment

Ms. D ichov receive d was a partial reimbursement of t he total amount owed.

1 3 . At the final hearing, Ms. Arani testified that it was excused from

comply ing with the terms of the contract due to a loss caused by Ñqua rantine

or other similar causes , Ò namely the COVID - 19 pande mic. HAT Tours

pointed to the term s and conditions of the agreement that was purportedly in

effect at the time Ms. Dichov purchased her tour package. HAT Tours

initially fil ed terms and conditions effective December 31, 2020. During the

hearing, HAT Tours discovered that the 2020 version of the agreement was

not in effect at the time Petitioner entered the agreement for the tour. The

undersigned then instructed HAT Tours to submit the terms and conditions

of the agreement in effect when Petitioner entered t he agreement. On

March 2, 2022, HAT Tours resubmitted Exhibit 1. Upon review, the

undersigned finds that the terms and conditions in Exhibit 1 reflect that they

were Ñvalid December 31, 2019.Ò Thus, they were not in effect on the date

Petitioner entered th e agreement on August 24, 2019 .

1 4 . After being given an opportunity to produce the correct copy of the

terms and conditions, HAT Tours has failed to do so. Thus, the record does

not contain a version of the terms and conditions in effect at the time

Pet itioner and HAT Tours entered the agreement.

1 5 . Based on the foregoing, the undersigned finds that Ms. Dichov is

entitled to reimbursement of the amount paid to HAT Tours for the European

tour in the amount of $8,900. The undersigned further finds that t here is no

competent substantial evidence to demonstrate that HAT Tours would not be

liable for a full refund to Petitioner under the theory of impossibility based on

terms of the agreement, i.e. , if loss is caused by Ñqua rantine or other similar

causes. Ò

C ONCLUSIONS OF L AW

1 6 . DOAH has jurisdiction over the parties and subject matter in this

proceeding . §§ 120.569, 120.57, and 559.929, Fla. Stat.

1 7 . Chapter 559 , Florida Statutes, is the ÑFlorida Sellers of Travel Act.Ò

§ 559.926, Fla. Stat. A Ñseller of travelÒ is defined in section 559.927(11) as:

[a]ny resident or nonresident person, firm,

corporation, or business entity that offers, directly

or indirectly, prearranged travel or tourist - related

services for individuals or groups, including, but

not lim ited to, vacation packages, or vacation

certificates in exchange for a fee, commission, or

other valuable consideration. The term includes

such person, firm, corporation, or business entity

who sells a vacation certificate to third - party

merchants for a fe e, or in exchange for a

commission, or who offers such certificates to

consumers in exchange for attendance at sales

presentations. The term also includes any business

entity offering membership in a travel club or

travel services for an advance fee or pay ment, even

if no travel contracts or certificates or vacation or

tour packages are sold by the business entity.

1 8 . It is undisputed that HAT Tours meet s the definition of a "seller of

travel."

19 . Sellers of travel are required to be registered with t he Department in

order to transact business in Florida. As part of the registration process,

sellers of travel must provide a performance bond in an amount set by the

Department. See § 559.929(1), Fla. Stat.

2 0 . Section 559.929 provides, in relevant part :

(2) The bond must be filed with the department on

a form adopted by department rule and must be in

favor of the department for the use and benefit of a

consumer who is injured by the fraud,

misrepresentation, breach of contract, or financial

failure, or an y other violation of this part by the

seller of travel. Such liability may be enforced by

proceeding in an administrative action as specified

in subsection (3) or by filing a civil action. The bond

must be open to successive claims, but the

aggregate amoun t awarded may not exceed the

amount of the bon d È .

(3) A consumer may file a claim against the bond.

Such claim, which must be submitted in writing on

an affidavit form adopted by department rule, must

be submitted to the department within 120 days

after an alleged injury has occurred or is discovered

to have occurred or a judgment has been entered.

The proceedings shall be conducted pursuant to

chapter 120. For proceedings conducted pursuant to

ss. 120.569 and 120.57 , the a gency shall act only as

a nominal party.

2 1. Here, Petitioner timely filed her claim against the bond seeking

reimbursement for failure to provide services. On March 5, 202 1 , Ms. Dichov

became aware that the services she contracted for would not be furnis hed. In

addition, HAT Tours indicated that it would not reimburse Ms. Dichov for the

full costs of the travel package.

2 2 . A s the claimant , Ms. Dichov has the burden to prove she is entitled to

reimbursement by a preponderance of the evidence . DepÔt of Ba nking & Fin.,

Div. of Sec. & Inv. Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 934

(Fla. 1996)(stating that Ñ[t]he general rule is that a party asserting the

affirmative of an issue has the burden of presenting evidence as to that

issue.Ò); Fla. DepÔt of Transp. v. J.W.C. Co. , 396 So. 2d 778, 788

(Fla. 1st DCA 1981) .

2 3 . HAT Tours Ô argument that it was unable to perform the obligations

under the contract terms due to the COVID - 19 pandemic give s rise to the

defense of Ñ impossibility of performance. Ò If pro ved, HAT Tours provide s a

legally sufficient defense for not complying with the terms and conditions of

the agreement entered into with Petitioner . Ñ Impossibility of performance Ò

refers to those situations where one side of a contract becomes impossible to

perform. Crown Ice Mach . Leasing Co. v. Sam Senter Farms , Inc. , 174 So. 2d

614, 617 (Fla. 2d DCA 1965). Ñ Impossibility of performance Ò is an affirmative

defense. Michel v. Beau Rivage Beach Resort, Inc. , 774 So. 2d 900 (Fla. 4th

DCA 2001); American Aviati on, Inc. v. Aero - Flight Serv . , Inc. , 712 So. 2d 809

(Fla. 4th DCA 1998). The burden of proof as to an affirmative defense is on

the party asserting the defense . Captain's Table, Inc. v. Khouri , 208 So. 2d

677 (Fla. 4th DCA 1968).

2 4 . Ms. D ichov met her bu rden and established that she is entitled to full

reimbursement for the cost of the tour as she did not receive the services for

which she paid. The burden of proof of the affi rmative defense of impossibility

is on HAT Tours and HAT Tours has failed to dem onstrate that it was

impossible to perform u nder the terms of the agreement .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Agriculture and Consumer Services

issue a final order as f ollows :

A . F inding Maria Dichov Ôs claim of $8,900 against the performance bond

of HAT Tours is granted ; and

B . F inding that M aria Dichov is entitled to reimbursement of $6,235, the

remaining amount owed for the cost of the tour .

D ONE A ND E NTERED this 25th day of March , 2022 , in Tallahassee, Leon

County, Florida.

S

Y OLONDA Y. G REEN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of March , 2022 .

C OPIES F URNISHED :

Capitol Indemnity Corporation Maria E. Dichov

Suite 300 1755 Filbert Street, Ap artment t 2B

1600 Aspen Commons San Francisco, California 94123

Madison, Wisconsin 53562

Winfrey A. Parkinson, Bureau Chief

Steven W. Moore, Esquire Departmen t of Agriculture

Law Office of Steven W . Moore and Consumer Services

Suite 300 2005 Apalachee Parkway

8240 118th Avenue North Tallahassee, Florida 32399

Largo, Florida 33773

Rick Kimsey, Director

American Contractors Indemnity Company Division of Consumer Services

c/o Garen Kasparian, Esquire Department of Agriculture

801 South Figueroa Street and Consumer Services

Los Angeles, California 90017 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 i ssue the Final Order in this

case.