18-002979
Mary Page And John Elkins vs.
Axis Getaways Systems, Llc, And Travelers Casualty And Surety Company Of America, As Surety
Status: Closed
Recommended Order on Tuesday, September 4, 2018.
Recommended Order on Tuesday, September 4, 2018.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8MARY PAGE AND JOHN ELKINS,
13Petitioners,
14vs. Case No. 18 - 2979
20AXIS GETAWAYS SYSTEMS, LLC, AND
25TRAVELERS CASUALTY AND SURETY
29COMPANY OF AMERICA, AS SURETY,
34Respondents.
35_______________________________/
36RECOMMENDED ORDER
38Pursuant to notice, a final hearing was held in this matter
49on July 25, 2018, in St. Aug ustine, Florida, before Yolonda Y.
61Green, a duly - designated Administrative Law Judge of the
71Division of Administrative Hearings (Division ).
77APPEARANCES
78For Petitioner: John E. Elkins, pro se
85Mary Page, pro se
89Apartment 1605
917507 Beach Boulevard
94Jacksonville, Florida 32216 - 3053
99For Respondent: Bryan G reiner, owner, pro se
107Axis Getaway Systems, LLC
111912 Ocean Palm Way
115St. Augustine, Florida 32020
119STATEMENT OF THE ISSUE
123Whether Respondent, a Ðseller of travel,Ñ owes Petitioner s
133a refund for misre presentation of travel services offered
142pursuant to an agreement between the parties .
150PRELIMINARY STATEMENT
152On April 10, 2018, Petitioners , John E. Elkins and Mary E.
163Page , filed a Se llers of Travel Claim Affid avit with the Florida
176Department of Agricultur e and Consumer Services, Division of
185Consumer Services (Department), seeking payment on a surety bond
194by Travelers Casualty and Surety Company of America on behalf of
205Respondent, Axis Getaways Systems, LLC (Axis or Respondent ),
214naming the Department as the oblige e . Axis requested a formal
226hearing and this matter was referred to the Division.
235This matter was scheduled for hearing on July 25, 2018 , and
246it commenced as scheduled. During preliminary matters,
253Petitioners raise d an issue regarding their accoun t being
263deactivated. However, the issue wa s not the subject of
273Petitioner s Ó complaint filed with the Department. Therefore,
282whether the account was active is not an issue properly before
293the undersigned and will not be considered herein. In addition,
303Re spondent requested that this matter be dismissed. Res pondent
313argued that PetitionersÓ complaint was closed by the Department
322and , thus , this matter should be dismissed. However, Respondent
331did not offer sufficient evidence to support its claim that the
342c ase was closed. Therefore, the Motion to Dismiss is denied.
353Petitioners testified on their o w n behalf. Petitioners
362offered Exhibits 1 through 4, which were admitted into evidence .
373Respondent presented the testimony of J onicar Cruz . Respondent
383also off ered Exhibits 1 through 3 , wh ich were admitted into
395evidence.
396The proceeding was recorded by a court reporter, but the
406parties did not order a copy of the transcript. Petitioner s
417timely filed a Proposed Recommended Order , which was considered
426in the prepa ration of this Recommended Order. Axis did not file
438a post - hearing submittal.
443Unless otherwise indicated, citations to the Florida
450Statutes or rules of the Florida Administrative Code refer to
460the 201 7 edition , which were in effect when the agreem ent was
473entered.
474FINDING S OF FACT
4781. Axis is a Ðseller of travelÑ and at all times material
490to this matter, was located in St. Augustine, Florida.
4992. On or about October 8, 2017 , Petitioners attended a
509presenta tion that was conducted by Axis. Petitioners wer e
519enthusiastic about the travel service and were impressed by the
529presentation . Petitioners frequently traveled to trade shows
537and believed the services would help reduce travel costs. They
547were particularly interested in vacation packages because they
555i ntended to travel to Cancun, Mexico. During the presentation ,
565they were told of the bonus week fee of $97.00 . Ms. Page asked
579specific questions about the costs for a vacation package for
589Cancun and whether there would be any hidden or additional fees.
600T he presenter assured Petitioners there would be no hidden or
611additional fees.
6133 . After the presentation, Petitioners jointly executed a
622Reservation Services Agreement (Agreement) for a non - exclusive
631license to access the travel network for a fee of $4,394 .00.
644The fee was paid in two installments of $2,000 .00 and one
657installment of $394.00.
6604 . The agreement provides, in pertinent part, as follows:
670Customer desires to enter into this
676Agreement reservation services applicable to
681vacation packages, nightl y stays, bonus
687weeks, fantasy getaways, activities and
692excursions, cruises, car rentals, golf
697discounts, dining discounts, hotels and
702luxury condominium and villa rentals
707(ÐNetwork BenefitsÑ). The Customer
711acknowledges that the Network Benefits may
717be cha nged from time to time.
724* * *
7278. Discount Variation
730All benefits and discounts conferred through
736this Agreement vary greatly based on the
743characteristics of the vacation unit or
749type, the time of year, space availability,
756and/or the rates charged by those parties
763listing the accommodations for rent through
769the Network . Customer acknowledges that
775he/she has been advised that while some
782discounts may be significant, these same
788accommodations may not enjoy deep discounts
794at other times and that deep dis counts are
803not available for some vacation units or
810types at any time. Customer acknowledges
816that the value in this License is expected
824to be realized over time contingent on the
832frequency of the use and that the Purchase
840Price is not guaranteed to be rec overed on a
850single vacation, the first year, if Customer
857does not take vacations, or if the vacation
865choices are not tailored offerings.
870* * *
87317. Member Best Price Guarantee
878Customer shall receive the Best Price
884Guarantee if Customer finds lower p rices on
892Equal Arrangements through a competing
897vendor. To access the guarantee, Customer
903must secure a confirmed reservation through
909the Network that displays the Member Price
916Guarantee checkmark, pay for the reservation
922in full and receive a valid confi rmation
930number. The sections on the website
936included in the Best Price Guarantee are
943vacations (i.e. Accom m odations, Cruises,
949Vacation Packages, and Worldwide Tours) and
955vacation add - ons (i.e. Car Rentals,
962Activities and Golf). Airfare not included.
968Eli gible cla ims must be submitted within
97624 hours from the time the original fully
984paid reservation is made and meet all the
992Terms and conditions listed in full on the
1000Website, must be in US dollars, must be an
1009identical comparison to what was purchased
1015and m ust be publicly viewable via the
1023internet (i.e. the general public must be
1030able to view the rate on a website, as it
1040does not apply to consolidator fares, fares
1047that have been acquired through auction or
1054bid, or any Internet fares that cannot be
1062independen tly verified as to the price and
1070exact itinerary) and available and bookable
1076(i.e. the rate is currently available and
1083can be reserved online). Equal Travel
1089Arrangements shall be defined as the exact
1096same arrival and departure dates , the exact
1103same proper ty, the exact same room or cabin
1112classification, the exact same room or cabin
1119size, the exact same cruise line, and the
1127exact same itinerary. Reservations excluded
1132from the Best Price Guarantee include Non -
1140Refundable reservations, Airfare and
1144reservations made or purchased with Reward
1150Credits in full or in part. If the claim is
1160found to be valid, Customer will be credited
1168with 110% of the difference to (sic) in the
1177form of Reward Credits.
1181* * *
118425. Entire Agreement
1187This instrument contains the entir e
1193agreement of the parties with respect to the
1201subject matter hereof and supersedes all
1207prior agreements, written or oral, with
1213respect to such subject matter. It may not
1221be changed orally but only by an agreement
1229in writing signed by the party against wh om
1238enforcement of any waiver, change,
1243modification, extension or discharge is
1248sought.
1249* * *
1252By signing below, the parties to hereby
1259execute this Agreement on the Execution Date
1266of this Agreement as identified herein . The
1274Licensee acknowledges and ag rees that this
1281Agreement is subject to all terms and
1288conditions set forth herein. The Licensee
1294further acknowledges having read the entire
1300Agreement and agreed to each of its
1307provisions prior to signing below.
1312* * *
1315YOU HAVE THE RIGHT TO CANCEL THIS CONTRACT
1323AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD
1332(3) CALENDAR DAY AFTER THE DATE OF THI S
1341C ONTRACT . UPON CANCELLATION, YOU WILL
1348RECEIVE A FULL REFUND, WITHOUT ANY CHARGES
1355OR PENALTY, WITHIN TEN (10) DAYS UNLES
1362SOONER REQUIRED BY APPLICABLE LAW. THIS
1368R IGHT IS NONWAIVABLE. TO EXERCISE YOUR
1375RIGHT TO CANCEL, YOU MUST SEND A WRITTEN
1383NOTICE STATING THAT YOU DO NOT WISH TO BE
1392BOUND BY THIS CONTRACT. THE NOTICE MAY BE
1400SENT BY EMAIL, FACSIMILE: 713 - 535 - 9239, OR
1410BY DEPOSIT FIRST - CLASS POSTAGE PREPAID, INTO
1418THE UNITED STATES MAIL: 13416 SOUTHSHORE DR.
1425CONROE, TX 77304.
14285 . In November 2017, Petitioners used the network software
1438for the first time. Petitioners searched for accommodations in
1447Cancun, Mexico at an all - inclusive resort. The resort had a
1459price of $129.00 instead of $97.00 and a mandatory resort fee in
1471the amount of $135.00 to $185 per person per day . Petitioners
1483found accommodations at three different all - inclusive resorts,
1492which also required an additional mandatory resort fee. While
1501rooms were available for the price offered by using the
1511software, Petitioners were dissatisfied because the resorts
1518required a resort fee.
15226 . At an unknown time after using the software,
1532Petitioners called Respondent but did not receive a return call.
1542On Decemb er 14, 2017, Petitioners sent text messages to Jonicar
1553Cruz seeking a refund because the service was not what was
1564represented to them at the presentation. Ms. Cruz offered to
1574assist Petitioners with the software program . Ms. Cruz also
1584directed Petitioner s to contact another staff member , as she was
1595no longer an employee of the company at that time. Petitioner s Ó
1608calls and emails to the other Axis staff member were left
1619unanswered.
16207 . On February 7, 2018, Petitioners filed a complaint with
1631the Better B usiness Bureau , and on February 13, 2018,
1641Petitioners filed a complaint with the Office of Citizen
1650Services, Florida Attorney GeneralÓs Office , and the Better
1658Business Bureau . In April 2018, Petitioners filed a complaint
1668with the Department.
16718 . Petitio ners admitted that they did not submit a written
1683letter of cancellation of the agreement during the three - day
1694cancellation period. Ms. Cruz testified that she did not
1703receive any written request to cancel the agreement during the
1713cancellation period.
17159 . Ms. Cruz also testified that while she could not affirm
1727certain representations made by the presenter, sh e explained to
1737Petitioners the process for the price match guarantee, and that
1747a resort fee may be associated with all - inclusive resorts.
1758CONCLUSION S OF LAW
17621 0 . The Division has jurisdiction over the parties and the
1774subject matter of this proceeding pursuant to sections 120.569
1783and 120.57(1), Florida Statutes.
17871 1. Section 559.926, et . seq . , Florida Statutes, is the
1799Ð Florida Sellers of Travel Act. Ñ A Ðseller of travelÑ is
1811defined in section 559.927(11) as:
1816[ a ] ny resident or nonresident person, firm,
1825corporation, or business entity that offers,
1831directly or indirectly, prearranged travel
1836or tourist - related services for individuals
1843or groups, including , but not limited to,
1850vacation packages, or vacation certificates
1855in exchange for a fee, commission, or other
1863valuable consideration. The term includes
1868such person, firm, corporation, or business
1874entity who sells a vacation certificate to
1881third - party merc hants for a fee, or in
1891exchange for a commission, or who offers
1898such certificates to consumers in exchange
1904for attendance at sales presentations. The
1910term also includes any business entity
1916offering membership in a travel club or
1923travel services for an adv ance fee or
1931payment, even if no travel contracts or
1938certificates or vacation or tour packages
1944are sold by the business entity.
19501 2. It is undisputed that Axis is a "seller of travel."
1962Sellers of travel are required to be registered with the
1972Departme nt in order to transact business in Florida. As part of
1984the registration process, sellers of travel must provide a
1993performance bond in an amount set by the Department.
2002See § 559.929(1) , Fla. Stat.
20071 3. A consumer who is injured by a seller of travel may
2020bring an action to recover again st the bond pursuant to
2031chapter 120. § 559.929(3) and (4). In this case, Petitioner s
2042timely filed their claim against the bond seeking damages for
2052fraudulent misrepresentation.
205414 . To pr evail on a claim for frau dulent
2065misrepresentation, Petitioner s must prove the following
2072elements: (1) a false statement concerning a material fact;
2081(2) the representor's knowledge that the representation is
2089false; (3) an intention that the representation induces another
2098to act on it; and (4) consequent injury by the party acting on
2111reliance on the representation. Johnson v. Davis , 480 So. 2d
2121625 (Fla. 1985).
212415 . Petitioner s assert that the fraudulent
2132misrepresenta tion was the sales pitch regarding a certain amount
2142for travel accommodations and no additional fees.
214916 . Petitioners attempted to reserve a room at an all -
2161inclusive resort. While Petitioners were dissatisfied with the
2169prices for rooms and comparative prices with other websites,
2178they did not avail themselves of th e discount guarantee. They
2189then sought to cancel the contract when they learned about the
2200additional resort fee s for an all - inclusive resort. Ms. Cruz
2212testified that she advised Petitioners about additional fees
2220that may be c harged by the individual hote ls before they signed
2233the agreement.
223517 . Notably absent from the hearing was the testimony of
2246the presenter who pitched the travel services to Petitioners.
2255In the presenterÓs absence, PetitionersÓ testimony, that the
2263presenter assured them that there wo uld be no additional fees,
2274is uncorroborated hearsay.
227718 . Petitioner s also suggest that Respondent engaged in
2287misrepresentation because they were offered prices that were not
2296the discount they believed to be comparable to other rates.
2306However, paragraph 8 of the Agreement is very clear that
2316discounts are variable depending on multiple factors , and that
2325the customer will enjoy more saving s the more frequently they
2336use the services provided by the software.
234319 . Furthermore, Petitioners Ó primary complaint w as based
2353on the additional resort fees. However, the travel service was
2363not only for hotel stays, but it was for various other services
2375e.g., car rentals, dining discounts, and golf discounts .
238420 . T he evidence in this case does not demonstrate that
2396Pet itioners were induced to enter the Agreement. I t seems
2407unreasonable that Petitioners , who are frequent travelers , would
2415rely on a statement made by a representative that a hotel would
2427not have independent fees associated with a hotel stay. As for
2438the pri ce difference for the hotel room, Petitioners did not
2449avail themselves of the price discount guarantee to obtain the
2459best price. As a result, Petitioners claim does not rise to the
2471level of fraudulent inducement in the sale of the Agreement.
248121 . A ss uming arguendo that Petitioner s were sold the
2493Agreement through fraudulent misrepresentation, Petitioner s
2499failed to show any damages. The $ 4 , 394.00 paid was for the
2512software and concierge services that were available to
2520Petitioners. No evidence was prese nted that they paid for any
2531hotel or vacation package outside of the Axis network .
2541Further, Petitioners did not utilize the price match guarantee
2550available through Axis that would have compensated them for any
2560price difference for a hotel .
2566RECOMMENDATIO N
2568Based on the foregoing Findings of Fact and Conclusions of
2578Law, it is RECOMMENDED that Petitioners, John Elkins a nd Mary
2589Page Ós , claim against Axis and the surety bond be DENIED.
2600DONE AND ENTERED this 4th day of September , 2018 , in
2610Tallahassee, Leon Cou nty, Florida.
2615S
2616YOLONDA Y. GREEN
2619Administrative Law Judge
2622Division of Administrative Hearings
2626The DeSoto Building
26291230 Apalachee Parkway
2632Tallahassee, Florida 32399 - 3060
2637(850) 488 - 9675
2641Fax Filing (850) 921 - 6847
2647www.doah.state.fl.us
2648Filed with the Clerk o f the
2655Division of Administrative Hearings
2659this 4th day of September , 2018 .
2666COPIES FURNISHED :
2669W. Alan Parkinson, Bureau Chief
2674Department of Agriculture and
2678Consumer Services
2680Rhodes Building, R - 3
26852005 Apalachee Parkway
2688Tallahassee, Florida 32399 - 6500
2693(e Served)
2695John E. Elkins
2698Mary Page
2700Apartment 1605
27027507 Beach Boulevard
2705Jacksonville, Florida 32216 - 3053
2710(eServed)
2711Michael Borish
2713Axis Getaways Systems, LLC
2717965 North Griffin Shores Drive
2722St. Augustine, Florida 32080 - 7726
2728Axis Getaways Systems, LLC
2732Suite B
2734108 Seagrove Main Street
2738St. Augustine, Florida 32080
2742Travelers Casualty
2744Surety Company of America
2748One Tower Square
2751Hartford, Connecticut 06183
2754Bryan Greiner
2756Axis Getaway Systems, LLC
2760912 Ocean Palm Way
2764St. Augustine, Florida 32020
2768Tom A. Steckle r, Director
2773Division of Consumer Services
2777Department of Agriculture and
2781Consumer Services
2783Mayo Building, Room 520
2787407 South Calhoun Street
2791Tallahassee, Florida 32399 - 0800
2796Stephen Donelan, Agency Clerk
2800Division of Administration
2803Department of Agricult ure and
2808Consumer Services
2810407 South Calhoun Street, Room 509
2816Tallahassee, Florida 32399 - 0800
2821(eServed)
2822NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2828All parties have the right to submit written exceptions within
283815 days from the date of this Recommended Orde r. Any exceptions
2850to this Recommended Order should be filed with the agency that
2861will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 09/04/2018
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 07/25/2018
- Proceedings: CASE STATUS: Hearing Held.
- Date: 07/20/2018
- Proceedings: CASE STATUS: Pre-Hearing Conference Held.
Case Information
- Judge:
- YOLONDA Y. GREEN
- Date Filed:
- 06/08/2018
- Date Assignment:
- 06/11/2018
- Last Docket Entry:
- 10/15/2018
- Location:
- St. Augustine, Florida
- District:
- Northern
- Agency:
- Department of Agriculture and Consumer Services
Counsels
-
Michael Borish
Address of Record -
Travelers Casualty
Address of Record -
John E Elkins
Address of Record -
Bryan Greiner
Address of Record -
W. Alan Parkinson, Bureau Chief
Address of Record -
Axis Getaways Systems, LLC
Address of Record -
Winfrey A Parkinson, Bureau Chief
Address of Record