STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HELEN STAHLER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4036

) PASSPORT INTERNATIONALE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by telephone on January 6, 1995, before Donald R. Alexander, a Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Helen Stahler, pro se

11200 Walsingham Road, Number 69

Largo, Florida 34648

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, Helen Stahler. 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 petitioner's request, the matter was rescheduled to January 6, 1995. At final hearing, petitioner testified on her own behalf and presented

the testimony of her sister, Hilda Correll. 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:

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, Helen Stahler, has filed a claim against the bond in the amount of $198.00 alleging that Passport failed to perform on certain contracted services.

   
   

2. In response to an offer run in a local newspaper on an undisclosed date in early 1991, petitioner agreed to purchase a five-day, four-night trip for two to the Bahamas at a cost of $99.00 per person. For this, she wrote two checks payable to Passport, each in the amount of $99.00. Although Passport has no record of the transaction, it may be reasonably inferred that the advertisement was run by, and the package purchased directly from, Passport since petitioner's checks were endorsed by Passport and deposited in a bank used by that entity.

   
   

3. After receiving a videotape, brochure and travel certificate, petitioner attempted by telephone to reserve certain dates for her trip.

   Because the certificate could not be used on a weekend, a fact not known at the time the certificate was purchased, petitioner became frustrated and requested a refund of her money by letter dated January 27, 1992. To date, she has never received a refund of her money.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. 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.

6. 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.

   
   

7. In this case, the evidence raises an inference that the travel certificate was purchased directly from Passport, and not through a third party promoter. Because the traveler was not told that various restrictions applied on the use of her certificate, and such failure to disclose this fact constituted a misrepresentation within the meaning of the law, petitioner is entitled to prevail in her claim against the seller of travel's bond.

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 in the amount of $198.00.

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:

Helen Stahler

11200 Walsingham Road, Number 69

Largo, Florida 34648

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.

Docket for Case No: 94-004036

Orders for Case No: 94-004036