STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CECILE M. HAAKE, )
)
Petitioner, )
)
vs. ) CASE NO. 94-4033
) PASSPORT INTERNATIONALE, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case by telephone on January 5, 1995, before Donald R. Alexander, a Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Cecile M. Haake, pro se
7254 Quail Meadow Road Charlotte, North Carolina 28210
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, Cecile M. Schlitz, now known as Cecile M. Haake. 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 November 16, 1994, a final hearing by telephone was scheduled on December 8, 1994. At petitioner's request, the matter was rescheduled to January 5,
1995. At final hearing, petitioner testified on her own behalf. Also, petitioner's composite exhibit 1 was received in evidence. Respondent was represented by Julie Johnson McCollum, 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:
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, Cecile M. Haake, has filed a claim against the bond in the amount of $398.00 alleging that Passport failed to perform on certain contracted services.
On December 24, 1990, petitioner responded to a newspaper advertisement promoting a five-day, four-night cruise to the Bahamas for $199.00 per person. The advertisement was run by Travel Partners International (TPI), a telemarketeer selling travel certificates on behalf of Passport. Petitioner purchased a certificate authorizing two persons to take the cruise. For this, she paid $398.00.
Shortly thereafter, petitioner received a package with a reservation request form. The form carried the name, address and telephone number of Passport. It should have contained an issue date and the name of the sponsor, but TPI erroneously left that information blank. Ordinarily, a certificate would expire one year after the issue date. Petitioner was not told this when she agreed to purchase the package.
Around February 20, 1992, petitioner returned the reservation request form to Passport with a requested travel date of May 1, 1992. On February 26, 1992, Passport returned the form and advised petitioner that "your reservation form was not completed by your sponsor." She was told to have TPI complete the form, and resubmit it with her requested travel dates. By now, however, TPI had gone out of business. Petitioner accordingly filled in TPI's name in the space for the sponsor, and she inserted an issue date of March 15, 1991. This meant her certificate would expire on March 15, 1992, or less than a month later. She again returned the form to Passport.
Since her requested travel dates were more than a year after the issue date, Passport declined to accept the reservation. Although in some cases Passport offered to extend certificates for an additional year for a $50.00 fee, there is no evidence that Passport did so in this case.
When petitioner requested a refund of her money, Passport's successor corporation, Incentive International Travel, Inc. (Incentive), declined to issue a refund on the ground the package was purchased from TPI and not Passport, and Passport had never received any money from the telemarketeer. To date, petitioner has never received a refund of her money.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.
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:
"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.
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 fails to perform the "contracted services." Subsection 559.927(10)(b)3., Florida Statutes.
In this case, there was a mispresentation by TPI, a third party promoter authorized by Passport to act as its agent. Under these circumstances, Passport is liable for the acts of its agent while acting within the scope of its 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 the telemarketeer to hold itself out as a representative and clothed its agent with the indicia of agency. Since Passport placed the 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 or aware of representations made by its agent. Neither can it refuse liability on the theory that its agent failed to account for the traveler's money. The claim in the amount of $398.00 should accordingly be approved.
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 in the amount of $398.00.
DONE AND ENTERED this 9th day of January, 1995, 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 9th day of January, 1995.
COPIES FURNISHED:
Cecile M. Haake
7254 Quail Meadow Road Charlotte, North Carolina 28210
Julie Johnson McCollum 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.
Issue Date | Proceedings |
---|---|
Feb. 23, 1995 | Final Order filed. |
Jan. 09, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 1-5-95. |
Jan. 05, 1995 | CASE STATUS: HEARING CONCLUDED |
Dec. 28, 1994 | Order sent out. (telephonic hearing rescheduled for 1/6/95; 3:00pm) |
Dec. 08, 1994 | Order sent out. (petitioner shall file written notice within 15 days from the date of this order that she still desires a telephonic hearing on her claim) |
Dec. 08, 1994 | Letter to DRA from R. Johnson (Re: enclosing material regarding claim of C. Schlitz) filed. |
Nov. 14, 1994 | 2/Letters to DRA from R. Johnson (RE; prefiled exhibits/tagged) filed. |
Oct. 13, 1994 | Order sent out. (case reopened) |
Oct. 13, 1994 | Case No/s:94-4033 unconsolidated. |
Sep. 22, 1994 | Order sent out. CASE CLOSED, petitioners failed to file written response indicating they desired a hearing regarding their claims. |
Sep. 22, 1994 | Order of Consolidation sent out. (Consolidated cases are: 94-4023, 94-4024, 94-4026, 94-4027, 94-4033, 94-4038, 94-4042, 94-4045) |
Sep. 22, 1994 | Case No/s 94-4007 thru 94-4045: unconsolidated. |
Sep. 06, 1994 | Due to the closing of the lowest consolidated case number, all future pleadings will be docketed and filed in the next to the lowest consolidate DOAH Case No. 94-4007. |
Aug. 02, 1994 | Order sent out. (Case Nos. 94-4006 through 94-4045 are preliminarily consolidated by DRA; filing instructions re: available hearing dates,addresses, etc. given) |
Jul. 28, 1994 | Motion for Additional Time to Respond to Initial Order and to Consolidate Cases for Discovery and Prehearing Matters filed. |
Jul. 25, 1994 | Initial Order issued. |
Jul. 15, 1994 | Agency referral letter; Request for Formal Hearing, letter form; Notice of Rights: Administrative Procedure Act Form (request for informal hearing) filed. |
Issue Date | Document | Summary |
---|---|---|
Feb. 22, 1995 | Agency Final Order | |
Jan. 09, 1995 | Recommended Order | Seller of travel liable for agent's misrepresentation; Claim against bond justified. |