AN
ACT Relating to sellers of travel; and amending RCW 19.138.030, 19.138.040,
19.138.100, 19.138.120, 19.138.130, 19.138.140, and 19.138.170.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
19.138.030 and 1996 c 180 s 2 are each amended to read as follows:
A
seller of travel shall not advertise that any travel services are or may be
available unless he or she has, prior to the advertisement, determined that the
product advertised was available at the time the advertising was placed. This
determination can be made by the seller of travel either by use of an airline
computer reservation system, or by written confirmation from the vendor whose
program is being advertised.
It
is the responsibility of the seller of travel to keep written or printed
documentation of the steps taken to verify that the advertised offer was
available at the time the advertising was placed. These records are to be
maintained for at least ((two)) one year((s)) after the
placement of the advertisement.
Sec.
2. RCW
19.138.040 and 1996 c 180 s 3 are each amended to read as follows:
At
or prior to the time of full or partial payment for any travel services, the
seller of travel shall furnish to the person making the payment a written
statement conspicuously setting forth the information contained in subsections
(1) through (6) of this section. However, if ((the sale of travel
services is made over the telephone or by other electronic media and payment is
made by credit or debit card)) payment is made other than in person,
the seller of travel shall transmit to the person making the payment the
written statement required by this section within three business days of ((the
consumer's credit or debit card authorization)) receipt or processing of
the payment. The written statement shall contain the following
information:
(1)
The name and business address and telephone number of the seller of travel.
(2)
The amount paid, the date of such payment, the purpose of the payment made, and
an itemized statement of the balance due, if any.
(3)
The registration number of the seller of travel required by this chapter.
(4)
The name of the vendor with whom the seller of travel has contracted to provide
travel arrangements for a consumer and all pertinent information relating to
the travel as known by the seller of travel at the time of booking. The seller
of travel will make known further details as soon as received from the vendor.
All information will be provided with final documentation.
(5)
((The conditions, if any, upon which the contract between the seller of
travel and the passenger may be canceled, and the rights and obligations of all
parties in the event of cancellation.)) An advisory regarding the
penalties that would be charged in the event of a cancellation or change by the
customer. This may contain either: (a) The specific amount of cancellation
and change penalties; or (b) the following statement: "Cancellation and
change penalties apply to these arrangements. Details will be provided upon
request."
(6)
A statement in eight-point boldface type in substantially the following form:
"If
transportation or other services are canceled by the seller of travel, all sums
paid to the seller of travel for services not performed in accordance with the
contract between the seller of travel and the purchaser will be refunded within
thirty days of receiving the funds from the vendor with whom the services were
arranged, or if the funds were not sent to the vendor, the funds shall be
returned within fourteen days after cancellation by the seller of travel to the
purchaser unless the purchaser requests the seller of travel to apply the money
to another travel product and/or date."
Sec.
3. RCW
19.138.100 and 1996 c 180 s 4 are each amended to read as follows:
No
person, firm, or corporation may act or hold itself out as a seller of travel
unless, prior to engaging in the business of selling or advertising to sell
travel services, the person, firm, or corporation registers with the director
under this chapter and rules adopted under this chapter.
(1)
The registration number must be conspicuously posted in the place of business
and must be included in all advertisements. ((Any corporation which issues
a class of equity securities registered under section 12 of the securities
exchange act of 1934, and any subsidiary, the majority of voting stock of which
is owned by such corporation including any wholly owned subsidiary of such
corporation are not required to include company registration numbers in
advertisements.)) Sellers of travel are not required to include
registration numbers on institutional advertising. For the purposes of this
subsection, "institutional advertising" is advertising that does not
include prices or dates for travel services.
(2)
The director shall issue duplicate registrations upon payment of a ((nominal))
duplicate registration fee to valid registration holders operating more than
one office. The duplicate registration fee for each office shall be an
amount equal to the original registration fee.
(3)
No registration is assignable or transferable.
(4)
If a registered seller of travel sells his or her business, when the new owner
becomes responsible for the business, the new owner must comply with all
provisions of this chapter, including registration.
(5)
If a seller of travel is employed by or under contract as an independent
contractor or an outside agent of a seller of travel who is registered under
this chapter, the employee, independent contractor, or outside agent need not
also be registered if:
(a)
The employee, independent contractor, or outside agent is conducting business
as a seller of travel in the name of and under the registration of the
registered seller of travel; and
(b)
All money received for travel services by the employee, independent contractor,
or outside agent is collected in the name of the registered seller of travel
and ((deposited directly into)) processed by the registered
seller of ((travel's trust account)) travel as required under
this chapter.
Sec.
4. RCW
19.138.120 and 1994 c 237 s 5 are each amended to read as follows:
(1)
Each seller of travel shall renew its registration on or before July 1 of every
((other)) year or as otherwise determined by the director.
(2)
Renewal of a registration is subject to the same provisions covering issuance,
suspension, and revocation of a registration originally issued.
(3) The director may refuse to renew a registration for any of the
grounds set out under RCW 19.138.130, and where the past conduct of the
applicant affords reasonable grounds for belief that the applicant will not
carry out the applicant's duties in accordance with law and with integrity and
honesty. The director shall promptly notify the applicant in writing by
certified mail of its intent to refuse to renew the registration. The registrant
may, within twenty-one days after receipt of that notice or intent, request a
hearing on the refusal. The director may permit the registrant to honor
commitments already made to its customers, but no new commitments may be
incurred, unless the director is satisfied that all new commitments are
completely bonded or secured to insure that the general public is protected
from loss of money paid to the registrant. It is the responsibility of the
registrant to contest the decision regarding conditions imposed or registration
denied through the process established by the administrative procedure act,
chapter 34.05 RCW.
Sec.
5. RCW
19.138.130 and 1997 c 58 s 852 are each amended to read as follows:
(1)
The director may deny, suspend, or revoke the registration of a seller of
travel if the director finds that the applicant:
(a)
Was previously the holder of a registration issued under this chapter, and the
registration was revoked for cause and never reissued by the director, or the
registration was suspended for cause and the terms of the suspension have not
been fulfilled;
(b)
Has been found guilty of a felony within the past ((five)) ten
years involving moral turpitude, or of a misdemeanor concerning fraud or
conversion, or suffers a judgment in a civil action involving willful fraud,
misrepresentation, or conversion;
(c)
Has made a false statement of a material fact in an application under this
chapter or in data attached to it;
(d)
Has violated this chapter or failed to comply with a rule adopted by the
director under this chapter;
(e)
Has failed to display the registration as provided in this chapter;
(f)
Has published or circulated a statement with the intent to deceive, misrepresent,
or mislead the public; or
(g)
Has committed a fraud or fraudulent practice in the operation and conduct of a
travel agency business, including, but not limited to, intentionally misleading
advertising.
(2)
If the seller of travel is found in violation of this chapter or in violation
of the consumer protection act, chapter 19.86 RCW, by the entry of a judgment
or by settlement of a claim, the director may revoke the registration of the
seller of travel, and the director may reinstate the registration at the
director's discretion.
(3)
The director shall immediately suspend the license or certificate of a person
who has been certified pursuant to RCW 74.20A.320 by the department of social
and health services as a person who is not in compliance with a support order
or a residential or visitation order. If the person has continued to meet all
other requirements for reinstatement during the suspension, reissuance of the
license or certificate shall be automatic upon the director's receipt of a release
issued by the department of social and health services stating that the
licensee is in compliance with the order.
Sec.
6. RCW
19.138.140 and 1996 c 180 s 7 are each amended to read as follows:
(1)
A seller of travel shall deposit in a trust account maintained in a federally
insured financial institution located in Washington state, or other account
approved by the director, all sums held for more than five business days that
are received from a person or entity, for retail travel services offered by the
seller of travel. This subsection does not apply to travel services sold by a
seller of travel, when payments for the travel services are made through the
airlines reporting corporation ((either by cash or credit or debit card
sale)).
(2)
The trust account or other approved account required by this section shall be
established and maintained for the benefit of any person or entity paying money
to the seller of travel. The seller of travel shall not in any manner encumber
the amounts in trust and shall not withdraw money from the account except the
following amounts may be withdrawn at any time:
(a)
Partial or full payment for travel services to the entity directly providing
the travel service;
(b)
Refunds as required by this chapter;
(c)
The amount of the sales commission;
(d)
Interest earned and credited to the trust account or other approved account;
(e)
Remaining funds of a purchaser once all travel services have been provided or
once tickets or other similar documentation binding upon the ultimate provider
of the travel services have been provided; or
(f)
Reimbursement to the seller of travel for agency operating funds that are
advanced for a customer's travel services.
(3)
The seller of travel may deposit noncustomer funds into the trust account as
needed in an amount equal to a deficiency resulting from dishonored customer
payments made by check, draft, credit card, debit card, or other negotiable
instrument.
(4)
At the time of registration, the seller of travel shall file with the
department the account number and the name of the financial institution at
which the trust account or other approved account is held as set forth in RCW
19.138.110. The seller of travel shall notify the department of any change in
the account number or location within one business day of the change.
(((4)))
(5) The director, by rule, may allow for the use of other types of funds
or accounts only if the protection for consumers is no less than that provided
by this section.
(((5)))
(6) The seller of travel need not comply with the requirements of this
section if all of the following apply, except as exempted in subsection (1) of
this section:
(a)
The payment is made by credit card;
(b)
The seller of travel does not deposit, negotiate, or factor the credit card
charge or otherwise seek to obtain payment of the credit card charge to any
account over which the seller of travel has any control; and
(c)
If the charge includes transportation, the carrier that is to provide the
transportation processes the credit card charge, or if the charge is only for
services, the provider of services processes the credit card charges.
(((6)))
(7) The seller of travel need not maintain a trust account nor comply with
the trust account provisions of this section if the seller of travel:
(a)(i)
Files and maintains a surety bond approved by the director in an amount of not
less than ten thousand nor more than fifty thousand dollars, as determined by
rule by the director based on the gross income of business conducted by the
seller of travel during the prior year. The bond shall be executed by the
applicant as obligor by a surety company authorized to transact business in
this state naming the state of Washington as obligee for the benefit of any
person or persons who have suffered monetary loss by reason of the seller of
travel's violation of this chapter or a rule adopted under this chapter. The
bond shall be conditioned that the seller of travel will conform to and abide
by this chapter and all rules adopted under this chapter, and shall reimburse
any person or persons who suffer monetary loss by reason of a violation of this
chapter or a rule adopted under this chapter.
(ii)
The bond must be continuous and may be canceled by the surety upon the surety
giving written notice to the director of the surety's intent to cancel the
bond. The cancellation is effective thirty days after the notice is received
by the director.
(iii)
The applicant may obtain the bond directly from the surety or through other
bonding arrangement as approved by the director.
(iv)
In lieu of a surety bond, the applicant may, upon approval by the director,
file with the director a certificate of deposit, an irrevocable letter of
credit, or such other instrument as is approved by the director by rule, drawn
in favor of the director for an amount equal to the required bond.
(v)
Any person or persons who have suffered monetary loss by any act which
constitutes a violation of this chapter or a rule adopted under this chapter
may bring a civil action in court against the seller of travel and the surety
upon such bond or approved alternate security of the seller of travel who
committed the violation of this chapter or a rule adopted under this chapter or
who employed the seller of travel who committed such violation. A civil action
brought in court pursuant to the provisions of this section must be filed no
later than one year following the later of the alleged violation of this
chapter or a rule adopted under this chapter or completion of the travel by the
customer; or
(b)
Is a member in good standing in a professional association, such as the United
States tour operators association or national tour association, that is
approved by the director and that provides or requires a member to provide a
minimum of one million dollars in errors and professional liability insurance
and provides a surety bond or equivalent protection in an amount of at least
two hundred fifty thousand dollars for its member companies.
(8)
If the seller of travel maintains its principal place of business in another
state and maintains a trust account or other approved account in that state
consistent with the requirement of this section, and if that seller of travel
has transacted business within the state of Washington in an amount exceeding
five million dollars for the preceding year, the out-of-state trust account or
other approved account may be substituted for the in-state account required
under this section.
Sec.
7. RCW
19.138.170 and 1994 c 237 s 13 are each amended to read as follows:
The
director has the following powers and duties:
(1)
To adopt, amend, and repeal rules to carry out the purposes of this chapter;
(2)
To issue and renew registrations under this chapter and to deny or refuse to
renew for failure to comply with this chapter;
(3)
To suspend or revoke a registration for a violation of this chapter;
(4)
To establish fees;
(5)
Upon receipt of a complaint, to inspect and audit the books and records of a
seller of travel. The seller of travel shall immediately make available to the
director those books and records as may be requested at the seller of travel's
place of business or at a location designated by the director. For that
purpose, the director shall have full and free access to the office and places
of business of the seller of travel during regular business hours. When ten
or more complaints have been received by either the department or the attorney
general on a seller of travel within a period of ninety days, the department
shall inspect and audit books and records of the seller of travel; and
(6)
To do all things necessary to carry out the functions, powers, and duties set
forth in this chapter.
NEW SECTION. Sec. 8. If
any provision of this act or its application to any person or circumstance is
held invalid, the remainder of the act or the application of the provision to
other persons or circumstances is not affected.
