STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by telephone on November 8, 1994, before Donald R. Alexander, a Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William L. Taylor, pro se

185 Tower Lakes

Lake Wales, Florida 33853

For Respondent: Michael J. Panaggio

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, William L. Taylor. 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 8, 1994. At final hearing, petitioner testified on his own behalf. Also, petitioner's composite exhibit 1 was received in evidence. Respondent was

represented by Michael J. Panaggio, the president of respondent's successor corporation. Also, he 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, William L. Taylor, has filed a claim against the bond in the amount of $605.95 alleging that Passport failed to perform on certain contracted services. At hearing, petitioner agreed that his claim should be reduced by $300.00 to take into account a settlement offer in that amount received from Passport.

   
   

2. By way of background, Passport's assets and liabilities were assumed by Incentive Internationale Travel, Inc. (Incentive) in June 1991, and its status as a corporation was dissolved sometime in late 1991. However, Incentive continued to sell Passport's travel certificates after the merger of the two corporations, and all travel described in those certificates was protected by Passport's bond.

   
   

3. In response to an offer in a local newspaper for a "bargain trip" to the Bahamas, on June 25, 1991, petitioner mailed a cashier's check in the amount of $605.95 payable to Incentive Internationale Travel, a telemarketeer in Tennessee using a name almost identical to Incentive and who was operating under the auspices of Open Door, Inc. (Open Door), another telemarketeer whose business location is unknown. Open Door had purchased approximately 1,000 travel certificates from Passport for resale to the public. Passport had agreed to honor and fulfill all travel certificates sold by Open Door or its agents. The travel certificates carried the name, address and logo of Passport.

   
   

4. During his discussions with the telemarketeer, petitioner was never told that his requested travel dates might be unavailable. Had he been so advised, he would not have purchased the certificates. After receiving his travel certificates, on September 10, 1991, petitioner mailed them with a check in the amount of $270.00 to Passport. He requested that his travel begin on Monday, November 25, 1991. That date was critical because he wished to celebrate his 50th wedding anniversary in the Bahamas. On September 30, 1991, Passport advised petitioner by letter that it could not honor his request for travel on November 25, 1991, and offered alternative dates. He was also offered the option of receiving a refund of his money. Petitioner immediately requested a refund.

   
   

5. When petitioner received a refund of only $270.00, and not the $605.95 previously paid to the telemarketeer, he filed a complaint with the Department. On November 20, 1991, Incentive advised petitioner that because Open Door had gone out of business, and Passport had never received the $605.95 paid to the telemarketeer, it had no obligation to make a refund of the remainder of his money. Sometime later, however, Incentive sent to petitioner a check in the

   amount of $300.00 in an effort to settle the case. Petitioner deposited the check but claims he is still owed $305.95.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. 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.

      
      

8. 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.

   
   

9. In this case, there was a mispresentation by Open Door, a third party promoter authorized by Passport to act as its agent. Under these circumstances, Passport, and its successor corporation, Incentive, are 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 Open Door (and its agents) 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 (and Incentive) 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 representions 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 $305.95 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 in the amount of $305.95.

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:

William L. Taylor

185 Tower Lakes

Lake Wales, Florida 33853

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: 94-004041

Orders for Case No: 94-004041