22-000204 Yuri Matos vs. Ibercaribe Tour, Llc Status: Closed Recommended Order on Wednesday, April 20, 2022.

Summary: Petitioner is entitled to $4,256.45 from Respondent?s performance bond for the unused funds it collected from him but blocked him from using toward travel purchases.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

Y URI M ATOS ,

Petitioner ,

vs. Case No. 22 - 0204

I BERCARIBE T OUR , LLC ,

Respondent .

/

R ECOMMENDED O RDER

On April 14, 202 2, Hetal Desai, an Administrative Law Judge of the Florida

Division of Administrative Hearings (DOAH) , conducted a duly - noticed hearing by

Zoom conference .

A PPEARANCES

For Petitioner: Yuri C. Matos

1417 North Semoran Boulevard , Suite 102

Orla ndo, Florida 32807

For Respondent: No appearance

S TATEMENT OF T HE I SSUE

Whether Petitioner is entitled to his claim of $4,256.45 against R espondent, a

Ñ seller of travel, Ò or RespondentÔs performance b ond posted with the Florida

Department of Agriculture and Consumer Services (Department), pursuant to

chapter 559, Florida Statutes (2021). 1

1 Unless otherwise indicated, citations to the Florida Statutes refer to the 2021 version, which w as in

effect when the disputed transaction took place.

P RELIMINARY S TATEMENT

On August 27, 2021, Petitioner, Yuri Matos Garcia (Mr. Matos or Petitioner),

filed a Sellers of Travel Claim Affidavit (Claim) with the Departme nt alleging he

had attempted to utilize a credit o f $4,256.45 with Ibercaribe Tour , LLC

(Respondent or Ibercaribe), or obtain a refund for this amount and was unable to do

so. Petitioner also alleged he had attempted to contact Ibercaribe and that it had

a voided his calls and emails. Petitioner provided supporting documentation and

sought payment from Ibercaribe or Ibercaribe Ô s surety. 2

On January 3, 202 2 , Respondent filed an Election of Rights form with the

Department . The form was submitted by Humberto B lanco , who described himself

as IbercaribeÔs owner and president . Mr. Blanco checked the box on the form

indicat ing Respondent did not dispute the facts , bu t also attached a statement that

clearly d ispute d the facts alleged by Petitioner. In his statement, Mr. Blanco argued

that Petitioner Ô s only recourse was to sue an alleged parent company located in

Spain , and that any dispute was barred by Ñ Force Majeure Ò as a result of the

COVID - 19 pandemic. Mr. Blanco also attached to the Election of Rights form a

num ber of documents that are in Spanish. These documents have not been officially

translated, entered into evidence, or considered by the undersigned.

On January 19, 2022, the Department referred the matter to DOAH where it

was assigned to the undersigned. A Notice of Hearing by Zoom Conference was

issued on February 15, 2022; and a Notice of Zoom Pre - hearing Conference was

issued on February 17, 2022. Both notices, as well as an Order of Pre - hearing

Instructions, were sent to Respondent via U.S. Mail at the contact information

provided by the Department. None of these documents were returned to DOAH as

undeliverable .

2 There was no evidence at the hearing and nothing in the referral documents sent by the

Department to DOAH that establishes the name of IbercaribeÔs surety company.

On April 6, 2022, the undersigned held the pre - hearing conference via Zoom as

previously noticed . Mr. Matos attended the conference; no one f rom Ibercaribe

attended the conference. During the conference, the undersigned answered

PetitionerÔs questions regarding the hearing process, and offered instruct ions on

how to file exhibits on the DOAH website. The DOAH Spanish - English interpreter

also at tended the conference, but Mr. Matos indicated he was comfortable testifying

in English .

In addition to sending the n otices to IbercaribeÔs address provided by the

Department , DOAH staff attempted to contact Mr. Blanco through the phone

number and the t wo email addresses provided by Mr. Blanco on the Election of

Rights form. The email sent to the Ibercaribe email address came back as

undeliverable . The email to Mr. Blanco Ô s Gmail address did not come back to

DOAH. Neither Mr. Blanco nor anyone else from Ibercaribe responded to the email.

The phone number provided by Mr. Blanco for Ibercaribe was no longer valid.

The undersigned conducted the final hearing on February 14, 2022. The

undersigned waited ten minutes for an appearance from Ibercaribe before

co mmencing the hearing . The hearing lasted approximately 45 minutes. N o one

ever appeared at the Zoom hearing on behalf of Ibercaribe , nor did anyone from

Ibercaribe contact DOAH to indicate they could not e nter the Zoom hearing.

Petitioner testified on hi s own behalf and Petitioner Ô s Exhibits A through E

(made up of E1 and E2) were admitted into evidence. All b ut PetitionerÔs Exhibit D

were in Spanish. DOAH Ô s official Spanish - English translator provided written

English translations for Exhibits A, B, E1 , a nd E2, and verbally translated

Exhibit C ( which w as a snapshot of a computer screen written in Spanish ) into

English .

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

copy of the transcript. Mr. Matos submitted a written st atement prior to the

hearing , which t he undersigned treats as a proposed recommended order at

PetitionerÔs request . Ibercaribe did not submit a proposed recommended order.

F INDINGS OF F ACT

1. Petitioner is the owner of Alas Cuba, a travel agency speciali zing in travel to

Cuba, Cancun, Mexico, the Dominican Republic, and elsewhere. Alas Cuba is based

in Orlando, Florida. Petitioner books travel for himself and for Alas CubaÔs clients

either directly or through third - part y travel providers.

2. Respondent is a Ñ seller of travel Ò registered with the Department

(Registration Number ST - 39412) that operates a full - service travel agency out of

Miami, Florida. Respondent operates a Spanish language online reservation system

for hotels and tours.

3. On March 6, 2017 , Mr. Matos, on behalf of Alas Cuba, entered into an

agreement with Ibercaribe. The contract describes Ibercaribe as a wholesale/retail

agency and reservation center that offers and sells tourism products and services

through an online reservation system l ocated at www.ibercaribetour.com .

4 . Under the terms of the agreement, Petitioner would send U.S. dollars to

Ibercaribe through wire transfers or checks . The money would be held as a credit in

PetitionerÔs account with Ibercaribe. Petitioner could use thi s credit toward the

purchase of travel services and reservations. Ibercaribe would then issue a voucher

to Petitioner for the travel services purchased .

5. After entering into the agreement, Mr. Matos received an account number ,

username, and password cred entials to use the website. He wire d money to

Ibercaribe , which w as credited to his account . Using his credentials, he could log on

to IbercaribeÔs website and view the balance in his account. He could also book hotel

rooms, transportation, tours, travel p ackages, and other travel - related services and

use the credit in his Ibercaribe account toward the purchase of these services.

6 . Prior to July 2021, Mr. Matos had regular contact with Mr. Blanco or other

Ibercaribe representative s via phone and email. Pe titioner met in person with

Mr. Blanco on one occasion in Miami.

7 . The agreement between Alas Cuba and Ibercaribe was valid for two years,

and expire d on March 6, 2019. There was no evidence t he parties enter ed into

another contract , but Petitioner contin ued to wire Ibercaribe money and use the

website to book travel services until July 2021 .

8 . On April 16, 2021, Petitioner booked a hotel reservation (the Reservation) for

an all - inclusive stay at Paradisus Palma Real Golf & Spa Resort ( the Resort) in

Punt a Cana, Dominican Republic , on behalf of an Alas Cuba client. Petitioner did

this through Ibercaribe Ô s website and used existing credit in his Ibercaribe account.

9 . Ibercaribe took payment from the balance of Petitioner Ô s account for the

Reservation and sent Petitioner confirmation that the Resort had been booked for

the client from August 2 through 8, 2021.

10 . On July 7, 2021, Ibercaribe emailed Mr. Matos that the Reservation had

been cancelled. Ibercaribe told Petitioner the cancellation was initiated by the

Resort due to the COVID - 19 pandemic. Ibercaribe indicated the funds for the

Reservation would be placed back into Petitioner Ô s account.

11 . Mr. Matos attempted to rebook the R eservation with Ibercaribe , but was

denied access to his account on the I bercaribe website. His password and login

credentials no longer worked.

12 . Upon looking into the matter, Petitioner discovered that the Resort was not

closed due to COVID - 19 , but had cancelled the Reservation for lack of payment by

Ibercaribe. Mr. Matos was able to rebook a reservation at the Resort for his client

through another travel website.

13 . Meanwhile, Mr. Matos repeatedly attempted to access his account with

Ibercaribe, which should have had a balance of $4,256.45 of unused credit if

Ibercaribe h ad refunded the money for the cancelled Reservation. He repeatedly

call ed and email ed Ibercaribe and Mr. Blanco individually. He was unable to use his

login credentials again and never garner ed a response to his inquiries from anyone

at Ibercaribe.

14 . On August 27, 2021, Petitioner filed the Claim against Ibercaribe and its

surety with the Department seeking reimbursement for the full amount of the

$ 4 ,256.45 remaining in his Ibercaribe account .

15 . Because Ibercaribe failed to attend the hearing, file an y exhibits, or provide

any testimony, PetitionerÔs evidence is unrebutted and taken as true.

16 . Based on the foregoing, the undersigned finds that Ibercaribe : (1) failed to

refund Mr. Matos the amount paid for the cancelled Reservation to PetitionerÔs

acc ount; (2) lied to him about why the Reservation was cancelled; (3) wrongfully

locked Mr. Matos out of the Ibercaribe online reservation platform; and (4) denied

him use of the remaining credit of $4,256.45 that should have been in his Ibercaribe

account.

C ONCLUSIONS OF L AW

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

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

18 . The Florid a Sellers of Travel Act (Act) found in Part XI of c hapter 559 ,

regulates companies that offer tr avel services:

ÑSeller of travelÒ means any 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

limited 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 fee, or i n

exchange for a commission, or who offers such certificates

to consumers in exchange for attendance at sales

presentations.

§ 559.927(11) , Fla. Stat.

19 . Although in its statement to the Department (which is not credible evidence

in this proceeding) Ibe rcaribe argued it was owned by a Spanish company, the Act

applies to both Florida based and foreign companies. Moreover, a Ñseller of travelÒ

includes companies that indirectly provide travel or tourist - related services.

20 . Based on the facts , above Iber caribe meets the definition of a Ñ seller of

travel Ò and is subject to the ActÔs requirements.

21 . Sellers of travel are required to register with the Department in order to

transact business in Florida. § 559.928(1), Fla. Stat. As part of the registration

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

Department. Section 559.929(2) states:

The bond must be filed with the department È in favor of

the department for the use and benefit of a consumer who

is injured by the f raud, misrepresentation, breach of

contract, or financial failure, or any 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 act ion.

22 . Petitioner established Ibercaribe made a misrepresentation when it told him

the Reservation was cancel l ed due to COVID - 19 , but it was actually cancelled due

to IbercaribeÔs failure to pay the Resort . Moreover, IbercaribeÔs failure to allow

Petit ioner to use the credit in his account, refund him th e amount of credit , or

timely respond to his inquir y , are violations of the Act that have injured Petitioner.

23. To recover from a performance bond, the Act requires an injured party to file

a claim wi th the Department within 120 days of being injured. Section 559.929(3)

states:

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 agency

sha ll act only as a nominal party.

24 . Petitioner timely filed his claim against the bond seeking reimbursement for

Ibercaribe Ô s failure to provide services in the form of access to its online reservation

system, and its failure to allow him to spend his unus ed credit. Mr. Matos became

aware that Ibercaribe had failed to pay the Resort for the Reservation on July 7 ,

2021 . By July 8, 2021, he realized he no longer had access to the website and that

Ibercaribe refused to communicate further with him . His Claim w as filed

approximately 50 days later.

25. A s the party seeking payment against the performance bond , Mr. Matos has

the burden to prove entitlement to reimbursement by a preponderance of the

evidence . Dep Ô t of Banking & Fin., Div. of Sec. & Inv. Prot. v. O sborne 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 ) .

26 . Mr. Matos met his burden and established he was entitl ed to full

reimbursement for the amount of credit he should have had in his Ibercaribe

account .

27. Pursuant to section 559.929(5) , t he seller of travel has 30 days within which

to pay the consumer any "indebtedness" determined to be owing by the Departmen t

in a final order. Absent a timely payment, the Department shall demand payment

from the surety that issued the performance bond. Absent a payment by the surety,

the Department may file an action in circuit court. 3

R ECOMMENDATION

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

RECOMMENDED that the Department of Agriculture and Consumer Services

issue a final order directing Ibercaribe Tours, LLC to pay Yuri Matos the sum of

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

registration, 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. § § 559.9355 and

559.937, Fla. Stat.

$4,256.45 , and absent timely payment, granting a claim aga inst the performance

bond filed with the Department by Ibecaribe Tours, LLC .

D ONE A ND E NTERED this 20th day of April , 2022 , in Tallahassee, Leon County,

Florida.

S

H ETAL D ESAI

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 20th day of April , 2022 .

C OPIES F URNISHED :

Winfrey A. Parkinson, Bureau Chief Ibercaribe Tour, LLC

Department of Agriculture 80 Northwest 2 2nd Avenue

and Consumer Services Miami, Florida 33125

2005 Apalachee Parkway

Tallahassee, Florida 32399 Yuri C. Matos

1417 North Semoran Boulevard , Suite 102

Rick Kimsey, Director Orlando, Florida 32807

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.