STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRUISES UNLIMITED TRAVEL/TOURS, ) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-2361

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 15, 1994, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Elaine Scola, President, pro se

Cruises Unlimited Travel/Tours, Inc. 7520 Northwest 5th Street, Suite 201

Plantation, Florida 33317

For Respondent: Jay S. Levenstein, Esquire

Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800 STATEMENT OF THE ISSUE

The issue for determination at formal hearing was whether Cruises Unlimited Travel/Tours, Inc., should be granted a bond waiver pursuant to Section 559.927(10)(b)5, Florida Statutes.

PRELIMINARY STATEMENT

By letter dated February 23, 1994, Cruises Unlimited Travel/Tours, Inc. (Petitioner), by and through its owner, Elaine Scola, requested the Department of Agriculture and Consumer Services (Respondent) to waive the annual performance bond for its business, as a seller of travel. By letter dated April 7, 1994, Respondent denied Petitioner a bond waiver on the basis that no audited financial statement had been submitted and that Petitioner had not shown that it had five or more consecutive years of experience as a "seller of travel" during the time Petitioner was in compliance with the registration requirements of Chapter 559, Florida Statutes. By petition dated April 11, 1994, Petitioner requested a formal hearing.

On April 28, 1994, this matter was referred to the Division of Administrative Hearings. A formal hearing was scheduled on July 15, 1994, pursuant to Notice of Hearing. At the hearing, Petitioner's owner testified on her own behalf and presented the testimony of one witness and entered two exhibits into evidence. Respondent presented the testimony of one witness and entered one exhibit into evidence.

A transcript of the formal hearing was ordered. Both parties submitted proposed findings of fact which have been addressed in the appendix to this recommended order. 1/

FINDINGS OF FACT

1. Cruises Unlimited Travel/Tours, Inc. (Petitioner), is a "seller of travel", as that term is defined by Section 559.927(1)(2), Florida Statutes. 2/

   
   

2. Elaine Scola is Petitioner's owner.

   
   

3. As of 1988, sellers of travel were required to register with the Department of Agriculture and Consumer Services, Division of Consumer Services (Respondent), and it was a violation of Section 559.927, Florida Statutes, for any person to conduct business as a seller of travel without registering annually with Respondent. Any such violation subjected the offending party to civil and criminal penalties.

   
   

4. Petitioner did not register with respondent and, in or around November 1993, Respondent notified Petitioner of its (Petitioner's) obligation to register with Respondent.

   
   

5. Around or on February 23, 1994, Petitioner, by and through Ms. Scola, made application for registration as a seller of travel and requested Respondent to waive the annual performance bond requirement. Petitioner included with the application, among other things, a registration fee and a 1993 unaudited financial statement.

   
   

6. Around or on March 16, 1994, Respondent requested additional information: an audited financial statement or latest income tax return, and documentation showing five or more consecutive years of business ownership experience as a seller of travel in Florida (occupational license or tax returns).

   
   

7. Around or on March 21, 1994, Petitioner provided Respondent a copy of its occupational licenses for the past seven years and a copy of its 1992 income tax return. Petitioner indicated that its 1993 tax return was not, as yet, completed.

   
   

8. Petitioner's occupational licenses dated back to 1986. For a brief period from September 30, 1988, to March 29, 1989, Petitioner did not have an occupational license.

   
   

9. Around or on April 7, 1994, Respondent denied Petitioner's request for a waiver of the bond requirement, contending that Petitioner had failed to satisfy the waiver requirements of Section 559.925(10)(b), Florida Statutes, on two grounds. One was that Petitioner had failed to submit an audited financial statement. The second was that Petitioner had failed to show that it had "five or more consecutive years of experience as a seller of travel in Florida, while in compliance with the law."

10. The second reason presented by Respondent is based upon its interpretation of Section 559.927(10)(b)5, Florida Statutes, to require that the "five or more consecutive years of experience as a seller of travel" must have been lawful, i.e. that it have occurred while the person was duly registered with Respondent, with appropriate security. By waiving the requirement for an annual performance bond, Respondent contends the statute was designed to reward sellers of travel who have complied with the registration and bond requirements.

    
    

11. Respondent has not promulgated any rule evidencing its interpretation. However, it has begun the rulemaking process.

    
    

12. Prior to Petitioner making application for registration as a seller of travel, it had never registered with Respondent as a seller of travel or posted a performance bond.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Pertinent to this case, effective October 1, 1988, Chapter 88-363, Laws of Florida, codified at Section 559.927, Florida Statutes (1989), required that:

    
    

    1. REGISTRATION OF SELLERS OF TRAVEL.-

       1. Each seller of travel shall annually register with the division, providing: its legal business

          or trade name, mailing address, and business locations; the full names, addresses, telephone numbers, and social security numbers of its owners or corporate officers and directors and the Florida agent of the corporation; and proof of purchase of adequate bond as required in this section. A certificate evidencing proof of registration shall be issued by the division and must be prominently displayed in the seller of travel's primary place of business....

          * * *

          1. It is a violation of this section for any person:

             1. To conduct business as a seller of travel without registering annually with the division.

             2. To conduct business as a seller of travel without an annual purchase of a performance bond in the amount set by the division, which amount

          shall be not less than $10,000 or more than $25,000. The surety on such bond shall be a surety company authorized to do business in the state, and the

          bond shall be conditioned on the performance of

          the contracted services. An act, conduct, practice, omission, failing, misrepresentation, or nondis- closure which constitutes a violation of this section also constitutes a deceptive and unfair trade practice for the purpose of s. 501.201 and administrative rules promulgated thereunder.

          1. In lieu of the performance bond required in this section, a registrant or applicant for registration may establish a letter of credit or

          certificate of deposit in a Florida banking institution in the amount of the performance bond, which letter of credit or certificate of deposit shall be available

          for satisfying claims. The division shall be the beneficiary to this letter of credit or certificate of deposit, and the original shall be filed with the division....

          
          

          Subsections (10) and (11) provided civil and criminal penalties, respectively, for failure to comply with the provisions of such law.

          
          

15. Effective October 1, 1993, 3/ Section 559.927(8)(b), Florida Statutes, was renumbered (10)(b) and amended to include the following provision:

    
    

    5. The department may waive the bond requirement in this subsection if the seller of travel has had

    5 or more consecutive years of experience as a seller of travel in Florida, can demonstrate financial responsibility in the submission of current audited financial statements, has not had any civil, criminal, or administrative action instituted against him in

    the vacation and travel business, and has a satisfactory consumer complaint history with the department. Such waiver may be revoked if the seller of travel violates any provision of this section.

    
    

16. Here, resolution of the issue of whether Petitioner's request for a waiver should be granted resolves itself to an interpretation of the requirement in the foregoing subsection that "the seller of travel has had 5 or more consecutive years of experience as a seller of travel in Florida." 4/

    
    

17. Respondent interprets such provision to require that the seller of travel must have acquired five or more years of experience as a seller of travel during the time that it was lawfully registered with it and maintained the required security. That subsection, according to Respondent, was intended as a reward to those sellers of travel who have performed as required by law.

    
    

18. Generally, an agency's interpretation of statutes it administers is accorded great deference and should not be overturned unless clearly erroneous. Pan American World Airways v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983); Maclen Rehabilitation Center v. Department of Health and Rehabilitative Services, 588 So.2d 12, 13 (Fla. 1st DCA 1991). Moreover, an agency's interpretation need not be the only possible interpretation or the most desirable one; it need only be within the range of possible interpretations. Department of Professional Regulation, Board of Medicine v. Durrani, 455 So.2d 515, 517 (Fla. 1st DCA 1984). However, where the legislative intent as evidenced by a statute is clear and unambiguous, there is no need for any construction or interpretation, and the forum need only give effect to the plain meaning of its terms. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918).

    
    

19. The fundamental rules governing construction applicable to the instant case were aptly set forth in Florida State Racing Commission v. McLaughlin, 102 So. 2d 574, 575 (Fla. 1958), as follows:

    "It is elementary that the function of the Court is to ascertain and give effect to the legislative intent in enacting a statute.

    "In applying this principle certain rules have

    been adopted to guide the process of judicial thinking. The first of these is that the Legislature is conclusively presumed to have a working knowledge of the English language and when a statute has been drafted in such a manner as to clearly convey a specific meaning the only proper function of the

    Court is to effectuate this legislative intent. "This rule is subject to the qualification that if

    a part of a statute appears to have a clear meaning if considered alone but when given that meaning is inconsistent with other parts of the same statute or others in pari materia, the Court will examine the entire act and those in para materia in order to ascertain the overall legislative intent.

    "When construing a particular part of a statute it is only when the language being construed in and of itself is of doubtful meaning or doubt as to its meaning is engendered by apparent inconsistency

    with other parts of the same or closely related statute that any matter extrinsic the statute may

    be considered by the Court in arriving at the meaning of the language employed by the Legislature.

    
    

    Accord, State v. State Racing Commission, 112 So.2d 825 (Fla. 1959), and Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (Fla. 1918). See also, State v. Webb,

    398 So.2d 820, 824 (Fla. 1981), ("It is a fundamental rule of statutory construction that legislative intent is the polestar by which the court must be guided and this intent must be given effect even though it may contradict the strict letter of the statute."), and Department of Professional Regulation v. Florida Dental Hygienist Association, Inc., 18 FLW D326 (Fla. 1st DCA 1993).

    
    

20. Here, while the provisions of Section 559.927 (10)(b)5, Florida Statutes, if real in isolation, could support the waiver requested by Petitioner, a reading of such subsection with the remaining provisions of Section 559.927 evidences a different legislative intent or, at a minimum, raises sufficient ambiguity as to accord deference to Respondent's interpretation where, as here, that interpretation is reasonable and not clearly erroneous.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter

a final order DENYING Cruises Unlimited Travel/Tours, Inc.'s, request for a

performance bond waiver.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of October 1994.

ERROL H. POWELL

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 31st day of October 1994.

ENDNOTES

1/ Petitioner was given additional time in which to file proposed findings of fact.

2/ Whether Petitioner is a seller of travel is not at issue. 3/ Chapter 93-107, Section 1, Laws of Florida.

4/ The issue of financial responsibility was not addressed at hearing as one of the reasons for denying the bond waiver, therefore, this Hearing Officer infers that Respondent has abandoned financial responsibility as an issue in this case. Furthermore, Respondent does not contend that Petitioner has not satisfied the remaining requirements of Subsection 559.927(10)(b)5, Florida Statutes.

APPENDIX

The following rulings are made on the parties' proposed findings of fact.

Petitioner's Proposed Findings of Fact

1. Rejected as argument, or conclusion of law.

2. Partially accepted in Findings of Fact 6, 7 and 9.

3. Rejected as unnecessary, irrelevant, contrary to the greater weight of the evidence, argument, or conclusion of law.

4. Rejected as unnecessary, irrelevant, or argument.

Respondent's Proposed Findings of Fact

1. Rejected as argument, or conclusion of law.

2. Partially accepted in Findings of Fact 6 and 9.

3 and 4. Partially accepted in Finding of Fact 10.

1. Partially accepted in Finding of Fact 11.

2. Partially accepted in Finding of Fact 4.

3. Partially accepted in Finding of Fact 12.

4. Partially accepted in Finding of Fact 5.

5. Partially accepted in Finding of Fact 9.

10 and 11. Partially accepted in Findings of Fact 9 and 10.

NOTE--Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, cumulative, contrary to the weight of the evidence, argument, or a conclusion of law.

COPIES FURNISHED:

Elaine Scola, President

Cruises Unlimited Travel/Tours, Inc. 7520 N.W. 5th Street, Suite 201

Plantation, Florida 33317

Jay S Levenstein, Esquire Department of Agriculture and

Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL - 10

Tallahassee, Florida 32399-0810

488-3022

Richard Tritschler General Counsel Department of Agriculture The Capitol, PL - 10

Tallahassee, Florida 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-002361

Orders for Case No: 94-002361