STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by telephone on November 16, 1994, before Donald R. Alexander, a Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Patricia Ritter, pro se

154 Midvale Road

Wampum, Pennsylvania 16157

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, Patricia Ritter. 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 16, 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 respondent. 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, Patricia Ritter, has filed a claim against the bond for more than $299.00 alleging that Passport failed to perform on certain contracted services.

   
   

2. On March 24, 1990, petitioner received an offer by telephone to purchase travel certificates entitling the holder to a five-day, four-night vacation package to the Bahamas plus two nights lodging in both Daytona Beach and Orlando, Florida. The offer was made by Uno Gold Card, a telemarketeer located in Atlanta, Georgia, and authorized to sell Passport's travel certificates. Before agreeing to purchase the certificates, petitioner was told that she could take the cruise at one time and use the Florida portion of her trip at a later date. She was never told that some dates were not available, or that other restrictions on travel might apply. Petitioner agreed to purchase the certificates and authorized a $299.00 charge on her credit card payable to Uno Gold Card.

   
   

3. After receiving her travel certificates, which carried the name, address, and logo of Passport International Express, a ficticious name under which Passport was then operating, petitioner decided to use the Florida portion of her trip. She filled out one of the certificates requesting September 3 and 4, 1990, as the dates on which she wanted to begin her four-night stay in Florida. This was because she and her husband were traveling to Florida that week on their vacation and it was the only time period when she could use the certificate. She sent in a $50.00 deposit with her request.

   
   

4. On June 28, 1990, respondent returned petitioner's $50.00 deposit and advised her that she "failed to leave the required amount of days between (her) requested travel dates," and thus her reservation could not be honored. She was told to resubmit her form within 21 days.

   
   

5. Because petitioner was unable to travel on a different date to Florida, she could not use the certificate. When she contacted Passport for a refund of her money, Passport declined to refund her money and instead told her to contact Uno Gold Card. By now, however, Uno Gold Card was no longer in business. To date, petitioner has never received a refund of her money.

   
   

6. Had petitioner been told to begin with that there were restrictions on how and when the certificates could be used, she would not have purchased them. But for this misrepresentation on the part of Passport's agent, the transaction would not have been consummated.

   CONCLUSIONS OF LAW

   
   

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

   
   

8. 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.

      
      

9. Any traveler may file a claim against the bond after an alleged violation of a contract. Subsection 559.927(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 if the seller of travel failed to perform the "contracted services." Subsection 559.927(10)(b)3., Florida Statutes.

   
   

10. In this case, there was a material misrepresentation or failure to make adequate disclosure on the part of the Uno Gold Card, a third party promoter authorized by Passport to act as its agent. Under these circumstances, Passport is liable on the theory that it is bound by the acts of its agent (Uno Gold Card) while acting within the scope of apparent authority, that is, that which Passport knowingly permitted its agent to exercise. Under this doctrine of apparent authority, Passport's liability is not limited to acts expressly authorized, or even implied, but it also includes acts which were apparently delegated to its agent. This is so because Passport knowingly permitted Uno Gold Card to hold itself out as its representative and clothed its agent with the indicia of agency. Since Passport placed the certificates in the stream of commerce and benefited directly from the sale of these certificates, it must assume responsibility for any misrepresentations made or material facts omitted by its agent when inducing a prospective traveler to purchase a certificate.

The claim should accordingly be approved.

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 she be paid $299.00 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:

Patricia Ritter

154 Midvale Road Wampum, PA 16157

Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, FL 32114

Robert G. Worley, Esquire

515 Mayo Building Tallahassee, FL 32399-0800

Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810

Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, FL 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: 94-004031

Orders for Case No: 94-004031