STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by telephone on November 15, 1994, before Donald R. Alexander, a Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: R. Jane Frazier, pro se

3070 Meadow Lane

Mobile, Alabama 36618-4634

For Respondent: Julie Johnson McCollum

2441 Bellevue Avenue

Daytona Beach, Florida 32114

For Department Robert G. Worley, Esquire of Agriculture: 515 Mayo Building

Tallahassee, Florida 32399-0800 STATEMENT OF THE ISSUE

The issue in this case is whether petitioner's claim against the bond posted by respondent with the Department of Agriculture and Consumer Services should be granted.

PRELIMINARY STATEMENT

This matter began on October 29, 1993, when respondent, Passport Internationale, Inc., requested a formal hearing to contest a claim against its bond filed by petitioner, R. Jane Frazier. The bond was posted with the Department of Agriculture and Consumer Services. Thereafter, the matter was referred by the agency to the Division of Administrative Hearings on July 15, 1994, with a request that a Hearing Officer be assigned to conduct a hearing.

After efforts to settle the case were unsuccessful, by notice of hearing dated October 19, 1994, a final hearing by telephone was scheduled on November 15, 1994. At final hearing, petitioner testified on her own behalf. Also, petitioner's exhibit 1 was received in evidence. Respondent was represented by

Julie Johnson McCollum, the manager of respondent's successor corporation and a former officer of Passport. Also, she testified on its behalf.

There is no transcript of hearing, and neither party has elected to file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. 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.

   
   

2. 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.

   
   

3. 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.

   
   

4. 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.

   
   

5. 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.

   
   

6. 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.

   
   

7. 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.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

9. Respondent is a seller of travel within the meaning of Subsection 559.927(1)(a), Florida Statutes. There, a seller of travel is defined in part as follows:

   
   

   1. "Seller of travel" means any person . . . purporting to maintain a business location in this state who offers for sale, directly or indirectly, at wholesale or retail . . . travel certificates in exchange for a fee, commission, or other valuable considerations.

      
      

      As a seller of travel, Passport was required to register with the Department, and to file a performance bond conditioned on the performance of contracted services. Subsections 559.927(2) and (10(b), Florida Statutes.

      
      

10. Any traveler may file a claim against the bond for an alleged violation of a contract. Subsection 559.227(10)(b)2., Florida Statutes. Claims may be paid if the traveler proves by a preponderance of the evidence that he or she was injured by "the fraud, misrepresentation, or financial failure of the seller of travel," or that the seller of travel failed to perform the "contracted services." Subsection 559.927(10)(b)3., Florida Statutes.

    
    

11. In this case, there was a misrepresentation on the part of Jet Set Travel, a third party promoter authorized by Passport to act as its agent. Under these circumstances, Passport is bound by the acts of its agent (Jet Set Travel) while acting within the scope of its apparent authority, that is, the authority which Passport knowingly permitted its agent to exercise. Thus, the

liability of the principal (Passport) for the acts of its agent (Jet Set Travel) under this doctrine of apparent authority is not limited to acts expressly authorized, or even implied, but it also includes acts which were apparently delegated to the agent. This is so because Passport knowingly permitted Jet Set Travel to hold itself out as its representative and clothed the seller-promoter with the indicia of agency. Since Passport placed the travel certificates in the stream of commerce and benefitted directly from the sale of these certificates, it is not reasonable to allow Passport to enjoy the benefits of this activity and then insulate itself from liability by contending that it was not directly involved in the initial sale of the certificate to petitioner or responsible for representations made by its agent. The claim in the amount of

$320.00 should accordingly be paid.

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Agriculture and Consumer Affairs written exceptions to this Recommended Order. They should be filed with the Department of Agriculture and Consumer Affairs within twenty days from date of this Recommended Order.

Docket for Case No: 94-004019

Orders for Case No: 94-004019