94-004663 Barry Amos, D/B/A Cloud Nine Travel vs. Department Of Agriculture And Consumer Services Status: Closed Recommended Order on Wednesday, April 19, 1995.

Summary: Respondent sold travel plans and tickets for compensation and was thus required to register as a ""seller of travel"".

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4663

)

BARRY AMOS d/b/a CLOUD NINE )

TRAVEL, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated hearing officer, Mary Clark, held a formal hearing in the above-

styled case on February 17, 1995. Petitioner's counsel and witnesses

participated from the videoconference center in Tallahassee, Florida; Respondent

participated from the videoconference center in Jacksonville, Florida; the

hearing officer presided from the videoconference center in Tallahassee. The

court reporter was with the respondent in Jacksonville.

APPEARANCES

For Petitioner: Joe Englander, Esquire

Department of Agriculture

and Consumer Services

Room 515, Mayo Building

Tallahassee, Florida 32399-0800

For Respondent: Barry Amos (representing himself)

4312-101 Plaza Gate Lane

Jacksonville, Florida 32217

STATEMENT OF THE ISSUES

The issue for disposition is whether Barry Amos d/b/a Cloud Nine Travel

violated section 559.927, F.S., by operating as a seller of travel without being

registered, and if so, what remedial action is appropriate.

PRELIMINARY STATEMENT

In a letter dated July 26, 1994, Respondent was notified that the

Department of Agriculture and Consumer Services (department) intended to impose

an administrative fine and issue a cease and desist order as the result of the

department's determination that he was operating as a seller of travel without

being properly registered. Respondent promptly requested a formal hearing and

the case was referred to the Division of Administrative Hearings.

At the hearing, the department presented two witnesses and a single

exhibit, received in evidence as Petitioner's composite exhibit #1.

Mr. Amos testified in his own behalf and his letter dated January 24, 1995,

to prior hearing officer, Ella Jane P. Davis, was received without objection as

Respondent's exhibit #1.

The transcript was filed on March 8, 1995, and on March 13, 1995, the

department filed its proposed recommended order. The findings of fact proposed

therein are substantially adopted here.

FINDINGS OF FACT

1. At all times relevant to the issues here, Barry Amos operated a

business at 4312-101 Plaza Gate Lane, Jacksonville, Florida.

2. In the latter months of 1993, Mr. Amos was interested in starting up a

travel agency. He requested information from the department and was sent a

registration packet with forms and a copy of the statute and rules. On December

29, 1993, Mr. Amos wrote to the department requesting an exemption from

registration based on his understanding that he was entitled to such. His

letter references a telephone conversation with "Melissa" at the department and

states: "She informed me that since I would not be handling ticket stock or

actual payments that I would not be required to register or post the surety bond

with your department." (Petitioner's composite exhibit #1)

3. Mr. Amos did not receive his exemption; instead the department sent

another letter on February 10, 1994 reiterating that the law required

registration unless he provided proof that he was exempt.

4. Joseph Nicolosi is an investigator with the department's Division of

Consumer Services. On July 19, 1994 he conducted what he calls an "on-site

inspection" of Mr. Amos' business. He had the information on the business but

did not have a proper phone number. He looked in the yellow pages and found a

listing for "Cloud avel" with a telephone number.

5. The individual who answered Mr. Nicolosi's telephone call identified

himself as Barry Amos. Mr. Nicolosi asked about coming to the office to look at

brochures and to plan a trip from Jacksonville to Colorado. Mr. Amos told him

that his wife would meet him someplace or send him the brochures. Mr. Amos also

said that he would have to figure out the cost of the trip and call him back and

that payment would be made by Mr. Nicolosi to him for the trip; he, Mr. Amos,

would make the arrangements.

6. After the telephone call was terminated, Mr. Nicolosi called Mr. Amos

back a few minutes later and asked if he would accept a check as payment. Mr.

Amos replied that it would be better to use a credit card but he agreed that he

would accept a check.

7. Mr. Amos concedes that when he was in business as Cloud 9, he accepted

personal or cashier's checks from the public for ticket purchases. He did not

accept payment from the public for what he called "services", like a commission.

The checks he accepted for ticket purchases were made out to Cloud avel and

were used to purchase tickets for the clients. Commissions were paid to Cloud 9

from the ticket sellers.

8. Barry Amos ceased operation as Cloud avel in January, 1995. He

never registered as a seller of travel.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction in this

proceeding pursuant to section 120.57(1), F.S.

10. Section 559.927(2)(a), F.S., requires that "[e]ach seller of travel

shall annually register with the [Department of Agriculture and Consumer

Services]..."

11. "Seller of travel" is defined in section 559.927(1)(a) as:

. . . any resident or nonresident person,

firm, corporation, or business entity

maintaining or purporting to maintain

a business location or branch office

in this state who offers for sale,

directly or indirectly, at wholesale

or retail, prearranged travel, tourist-

related services, or tour-guide services

for individuals or groups, through

vacation or tour packages, or through

lodging or travel certificates in

exchange for a fee, commission, or other

valuable consideration. The term in-

cludes any business entity offering

membership in a travel club or travel

services for an advance fee or pay-

ment, even if no travel contracts or

certificates or vacation or tour packages

are sold by the business entity.

(Emphasis added)

12. "Offer for sale" is defined in section 559.927(1)(c), F.S. as:

. . . direct or indirect representation,

claim, or statement or making an offer

or undertaking by any means or method,

to arrange for, provide, or acquire

travel reservations or accommodations,

tickets for domestic or foreign travel

by air, rail, ship, or other medium of

transportation, or hotel and motel

accommodations or sightseeing tours.

13. Rule 5J-9.0015 provides, in pertinent part:

5J-9.0015 Definitions. The definitions

contained in Section 559.927, Florida

Statutes, and the following shall apply:

(1) Seller of travel does not include

a person who acts as an independent or

outside sales agent and who meets the

following criteria:

(a) Has a written contract with a

seller(s) of travel that is operating

in compliance with Section 559.927,

Florida Statutes;

(b) Does not receive a fee, commission

or other valuable consideration directly

from the purchaser or traveler for the

sale of travel;

(c) Does not at any time have any

unissued ticket stock or travel documents

in his or her possession; and

(d) Does not have the ability to issue

tickets, lodging or vacation certifi-

cates, or any other travel documents.

An agent will not fail to meet this

criterion if it only delivers tickets

or travel documents issued by a seller

of travel operating in compliance with

Section 559.927, Florida Statutes,

and these rules.

* * *

14. Barry Amos claims that he was exempt from registration because he did

not receive compensation from the client for his "services", but only received

the payment for the tickets from the client. His interpretation is not

supported by the text of the statute or rule cited above, and Mr. Amos produced

no other authority for his interpretation. According to the facts and the

statue and rules, Barry Amos d/b/a Cloud avel was a seller of travel subject

to registration requirements.

15. Section 559.927(13), F.S., provides that the department may impose an

administrative fine not to exceed $5,000.00 and direct a seller of travel to

cease and desist when a violation of the statute or implementing rules is found.

16. Counsel for the department, in his proposed recommended order suggests

a penalty of $1,000.00, a cease and desist order, and refusal to register Barry

Amos or a business he owns until the fine is satisfied. It is undisputed that

the business is no longer operating, and a less severe penalty is thus

recommended.

RECOMMENDATION

Based on the foregoing, it is hereby,

RECOMMENDED:

That the Department of Agriculture and Consumer Services enter its final

order finding that Respondent, Barry Amos d/b/a Cloud avel, violated section

559.927, F.S., imposing an administrative fine of $250.00, requiring that

Respondent continue to cease and desist until properly registered as a seller of

travel and denying such registration until the administrative fine is paid.

DONE and ORDERED this 19th day of April, 1995, in Tallahassee, Leon County,

Florida.

___________________________________

MARY W. CLARK, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of April, 1995.

COPIES FURNISHED:

Honorable Bob Crawford

Commissioner of Agriculture

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler, Esquire

Department of Agriculture and

Consumer Services

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Jo Englander, Esquire

Department of Agriculture and

Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Mr. Barry Amos

4312-101 Plaza Gate Lane

Jacksonville, Florida 32217

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.