House Bill 3703

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    Florida House of Representatives - 1998                HB 3703

        By Representatives Melvin and Ogles






  1                      A bill to be entitled

  2         An act relating to travel agencies; creating

  3         the Travel Agency Fair Treatment Act; providing

  4         findings and intent; providing definitions;

  5         providing purposes of the act; providing for

  6         construction; prohibiting the cancellation,

  7         failure to renew, or alteration of appointments

  8         without good cause; requiring notification of

  9         termination or change in appointment; providing

10         contents of notice; providing applicability of

11         notice provisions; providing for damages;

12         providing for applicability with respect to

13         arbitration agreements; providing for temporary

14         injunction; providing severability; providing

15         an effective date.

16

17         WHEREAS, the travel agency industry has a significant

18  effect upon the economy and well-being of the state and its

19  citizens, and

20         WHEREAS, the traveling public is dependent on travel

21  agents as the primary source of comprehensive and unbiased

22  information about alternative travel arrangements and the

23  value thereof, and

24         WHEREAS, the public interest requires remedial action

25  on the part of the Legislature to ensure the continued

26  availability of such comprehensive and unbiased information to

27  citizens of this state, and

28         WHEREAS, the continued availability of such

29  comprehensive and unbiased information is threatened by

30  overreaching and predatory practices of travel service

31  suppliers whose economic power is vastly greater than those

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    Florida House of Representatives - 1998                HB 3703

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  1  who sell transportation and related services under

  2  appointments and who offer objective information and choices

  3  of arrangements from a variety of travel service providers to

  4  the citizens of this state, NOW, THEREFORE,

  5

  6  Be It Enacted by the Legislature of the State of Florida:

  7

  8         Section 1.  This act shall be known and may be cited as

  9  the "Travel Agency Fair Treatment Act."

10         Section 2.  Definitions.--As used in this act, unless

11  the context otherwise requires, the following words and

12  phrases shall have the following meanings:

13         (1)  "Appointment" means a contract or agreement,

14  either express or implied, whether oral or written, by which

15  one or more travel service suppliers, directly or through an

16  intermediary, grants to one or more persons the right to sell

17  or distribute travel or travel-related services, or to use a

18  travel or travel-related trade name, trademark, service mark,

19  logo, advertising, or other commercial symbol, in which there

20  is a community of interest in the business of offering,

21  selling, or distributing such services at retail, by lease, by

22  agreement, or otherwise. The term shall also include agencies,

23  distributorships, franchises, dealerships, and other

24  distribution arrangements, regardless of how denominated.

25         (2)  "Community of interest" means a continuing

26  financial interest between the travel service supplier and the

27  travel agency in either the operation of the retail business

28  or the marketing of services.

29         (3)  "Good cause" means the failure of a travel agency

30  to substantially comply with essential and reasonable

31  requirements imposed, or sought to be imposed, upon the travel

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    Florida House of Representatives - 1998                HB 3703

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  1  agency by a travel service, which requirements are not

  2  discriminatory, either by their terms or in the manner of

  3  their enforcement, when compared to requirements imposed on

  4  other similarly situated travel agencies or requirements and

  5  practices under which the travel service supplier conducts its

  6  own activities that are in competition with the travel agency.

  7         (4)  "Travel service supplier" means a person who

  8  grants an appointment as defined in subsection (1).

  9         (5)  "Person" means a natural person, partnership,

10  joint venture, corporation, or other entity.

11         (6)  "Travel agency" means a seller of travel, as

12  defined in s. 559.927(10), Florida Statutes, with a principal

13  place of business in this state or organized under the laws of

14  this state, who is the grantee of one or more appointments as

15  defined in subsection (1). A person may, at the same time, be

16  a travel agency with respect to more than one travel service

17  supplier.

18         Section 3.  Purposes; rules of construction; variation

19  by contract.--

20         (1)  The underlying purposes of this act are:

21         (a)  To promote the compelling public interest in fair

22  business relations between travel agencies and travel service

23  suppliers, and in the continuation of appointments on a fair

24  basis.

25         (b)  To protect travel agencies against unfair

26  treatment by travel service suppliers who inherently have

27  superior economic power and superior bargaining power in the

28  granting of appointments.

29         (c)  To provide travel agencies with rights and

30  remedies in addition to those existing by contract or common

31  law.

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    Florida House of Representatives - 1998                HB 3703

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  1         (d)  To govern all appointments, including any renewals

  2  or amendments, to the full extent consistent with the

  3  constitutions of this state and the United States.

  4         (e)  To preserve for the public the convenience and

  5  efficiency of access to multiple sources for travel and

  6  travel-related services.

  7         (f)  To recognize and protect travel agencies'

  8  investments of time and effort in creating goodwill for their

  9  travel service suppliers.

10         (2)  This act shall be liberally construed and applied

11  to promote its underlying remedial purposes and policies. The

12  effect of this act may not be varied by contract or agreement.

13  Any contract or agreement purporting to do so is void and

14  unenforceable to that extent only.

15         Section 4.  Cancellation and alteration of

16  appointments.--No travel service supplier, directly or through

17  any officer, agent, employee or other representative, shall

18  terminate, cancel, fail to renew, or substantially change the

19  competitive circumstances of an appointment without good

20  cause. The burden of proving good cause is on the travel

21  service supplier. For the purposes of this act, the terms

22  "terminate," "cancel," and "fail to renew" shall mean either

23  actual or constructive termination, cancellation, or failure

24  to renew.

25         Section 5.  Notice of termination or change in

26  appointment.--

27         (1)  Except as provided in subsection (2), a travel

28  service supplier shall provide a travel agency not less than

29  90 days' prior written notice of termination, cancellation,

30  nonrenewal, or substantial change in the competitive

31  circumstances of an appointment. The notice shall state all

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    Florida House of Representatives - 1998                HB 3703

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  1  the reasons for termination, cancellation, nonrenewal, or

  2  substantial change in competitive circumstances and shall

  3  provide that the travel agency has 60 days in which to rectify

  4  any claimed deficiency. If the deficiency is rectified within

  5  60 days, the notice shall be void.

  6         (2)(a)  The notice provisions of this section shall not

  7  apply if the reason for termination, cancellation, nonrenewal,

  8  or substantial change in competitive circumstances is

  9  insolvency, the occurrence of an assignment for the benefit of

10  creditors, or bankruptcy. If the reason for termination,

11  cancellation, nonrenewal, or substantial change in competitive

12  circumstances is nonpayment of sums due under the appointment,

13  the travel agency shall be entitled to written notice of such

14  default, and shall have 10 days from the date of delivery or

15  posting of such notice in which to remedy such default, or

16  such longer time as is provided for in any written agreement

17  between the travel agency and the travel service supplier or

18  its representative.

19         (b)  The notice provisions of this section shall not

20  apply when the travel service supplier asserts that the travel

21  agency has engaged in fraudulent conduct and there is a clear

22  and present danger of substantial loss to the travel service

23  supplier unless action otherwise regulated by the notice

24  provisions of subsection (1) is taken without giving such

25  notice.

26         (3)  If a proceeding under section 7 results in a

27  finding that there was no fraudulent conduct on the part of

28  the travel agency and there was no clear and present danger of

29  substantial loss to the travel service supplier, the damages

30  recoverable by the travel agency under section 7 shall be five

31  times the actual damages or $5,000, whichever is greater,

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    Florida House of Representatives - 1998                HB 3703

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  1  together with actual costs of the action, including reasonable

  2  attorney's fees.

  3         Section 6.  Application to arbitration

  4  agreements.--This act shall not affect provisions for the

  5  binding arbitration of disputes contained in an appointment if

  6  the criteria for determining whether good cause existed for a

  7  termination, cancellation, nonrenewal, or substantial change

  8  in competitive circumstances, and the relief provided

  9  thereunder, are no less than those provided for in this act.

10         Section 7.  Action for damages.--Any travel agency who

11  suffers damage as a result of a violation of this act may file

12  a petition or complaint in any court of competent jurisdiction

13  in the state, and, if successful, shall recover three times

14  the actual damages or $1,000, whichever is greater, together

15  with actual costs of the action, including reasonable

16  attorney's fees. Appointments shall continue in effect until

17  final determination of the issues raised in such petition or

18  complaint by the travel agency.

19         Section 8.  Temporary injunction.--In any action

20  brought by a travel agency against a travel service supplier

21  under this act, any violation of this act by the travel

22  service supplier is deemed an irreparable injury to the travel

23  agency for determining whether a temporary injunction should

24  be issued.

25         Section 9.  Severability.--If any provision of this act

26  or the application thereof to any person or circumstance is

27  held invalid, the invalidity shall not affect the other

28  provisions or applications of the act which can be given

29  effect without the invalid provision or application, and to

30  this end the provisions of this act are declared severable.

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    Florida House of Representatives - 1998                HB 3703

    556-149A-98






  1         Section 10.  This act shall take effect upon becoming a

  2  law and shall apply to all appointments in effect on the date

  3  of its enactment.

  4

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  6                          HOUSE SUMMARY

  7
      Creates the Travel Agency Fair Treatment Act. Provides
  8    findings and intent. Defines terms for purposes of the
      act. Provides purposes of the act. Prohibits the
  9    cancellation, failure to renew, or alteration of
      appointments without good cause. Requires notification of
10    termination or change in appointment. Provides contents
      of notice. Provides applicability of notice provisions.
11    Provides for damages. Provides for applicability with
      respect to arbitration agreements. Provides for temporary
12    injunction.

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