STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by telephone on November 15, 1994, before Donald R. Alexander, a Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edmund Houze, pro se

Route 1, Box 481

Reidsville, Georgia 30453

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, Edmund Houze. 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 15, 1994. At final hearing, petitioner testified on his own behalf. Also, petitioner's composite 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, Edmund Houze, has filed a claim against the bond for $348.00 alleging that Passport failed to perform on certain contracted services.

   
   

2. In response to a promotion run by an Augusta, Georgia merchant, petitioner filled out a card for a "free" trip to the Bahamas, plus four days accommodation in Daytona Beach and Orlando. Thereafter, he was contacted by Caribbean Sun Tours (CST), a telemarketeer operating out of Tampa, Florida. During his conversation with a CST representative, petitioner was told that if he could not confirm his requested travel dates, his money would be refunded.

   
   

3. On November 6, 1990, petitioner agreed to buy a travel certificate entitling the holder to a five-day, four-night vacation package to the Bahamas, plus four nights lodging in Florida. The certificate cost $399.00, and petitioner sent a check in that amount to CST. The certificate issued by CST carried the name, address and logo of Passport.

   
   

4. At hearing, Passport contended that CST had "got hold" of some of Passport's travel certificates from another telemarketeer and was reselling them to travelers without Passport's authorization. Passport conceded, however, that it honored all certificates sold by CST, including petitioner's certificate. Accordingly, it is found that CST was acting as an agent on behalf of Passport.

   
   

5. On June 1, 1991, petitioner sent Passport a deposit in the amount of

   $140.00 with his reservation for the cruise and land accommodations. He selected August 5-8, 1991, as the dates on which he desired to travel to Florida. He was told by Passport that the dates were unavailable. Further efforts by petitioner to find an acceptable date for travel were unsuccessful. At that point, and consistent with the representation made by Passport's agent, petitioner requested a refund of his money. He also filed a complaint with the Department.

   
   

6. Passport agreed to refund petitioner the $140.00 deposit. Passport has denied liability for the remaining $348.00 on the theory that CST never sent it the money, and that company has gone out of business.

   
   

   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 fails to perform the "contracted services." Subsection 559.927(10)(b)3., Florida Statutes.

   
   

10. In this case, there was a misrepresentation by CST, a third party promoter authorized by Passport to act as its agent. Under these circumstances, Passport is liable for the acts of its agent (CST) 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 because Passport knowingly permitted CST 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 representations made by its agent. Neither can it refuse liability on the theory that its agent failed to account for the money. The claim in the amount of $348.00 should 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 that he be paid $348.00.

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:

Edmund Houze Route 1, Box 481

Reidsville, Georgia 30453

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: 94-004022

Orders for Case No: 94-004022