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.

Summary: Petitioners did not prove that Respondent, a "seller of travel," engaged in fraudulent misrepresentation. Recommend denial of claim against surety bond.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY PAGE AND JOHN ELKINS,

Petitioners,

vs. Case No. 18 - 2979

AXIS GETAWAYS SYSTEMS, LLC, AND

TRAVELERS CASUALTY AND SURETY

COMPANY OF AMERICA, AS SURETY,

Respondents.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this matter

on July 25, 2018, in St. Aug ustine, Florida, before Yolonda Y.

Green, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings (Division ).

APPEARANCES

For Petitioner: John E. Elkins, pro se

Mary Page, pro se

Apartment 1605

7507 Beach Boulevard

Jacksonville, Florida 32216 - 3053

For Respondent: Bryan G reiner, owner, pro se

Axis Getaway Systems, LLC

912 Ocean Palm Way

St. Augustine, Florida 32020

STATEMENT OF THE ISSUE

Whether Respondent, a Ðseller of travel,Ñ owes Petitioner s

a refund for misre presentation of travel services offered

pursuant to an agreement between the parties .

PRELIMINARY STATEMENT

On April 10, 2018, Petitioners , John E. Elkins and Mary E.

Page , filed a Se llers of Travel Claim Affid avit with the Florida

Department of Agricultur e and Consumer Services, Division of

Consumer Services (Department), seeking payment on a surety bond

by Travelers Casualty and Surety Company of America on behalf of

Respondent, Axis Getaways Systems, LLC (Axis or Respondent ),

naming the Department as the oblige e . Axis requested a formal

hearing and this matter was referred to the Division.

This matter was scheduled for hearing on July 25, 2018 , and

it commenced as scheduled. During preliminary matters,

Petitioners raise d an issue regarding their accoun t being

deactivated. However, the issue wa s not the subject of

Petitioner s Ó complaint filed with the Department. Therefore,

whether the account was active is not an issue properly before

the undersigned and will not be considered herein. In addition,

Re spondent requested that this matter be dismissed. Res pondent

argued that PetitionersÓ complaint was closed by the Department

and , thus , this matter should be dismissed. However, Respondent

did not offer sufficient evidence to support its claim that the

c ase was closed. Therefore, the Motion to Dismiss is denied.

Petitioners testified on their o w n behalf. Petitioners

offered Exhibits 1 through 4, which were admitted into evidence .

Respondent presented the testimony of J onicar Cruz . Respondent

also off ered Exhibits 1 through 3 , wh ich were admitted into

evidence.

The proceeding was recorded by a court reporter, but the

parties did not order a copy of the transcript. Petitioner s

timely filed a Proposed Recommended Order , which was considered

in the prepa ration of this Recommended Order. Axis did not file

a post - hearing submittal.

Unless otherwise indicated, citations to the Florida

Statutes or rules of the Florida Administrative Code refer to

the 201 7 edition , which were in effect when the agreem ent was

entered.

FINDING S OF FACT

1. Axis is a Ðseller of travelÑ and at all times material

to this matter, was located in St. Augustine, Florida.

2. On or about October 8, 2017 , Petitioners attended a

presenta tion that was conducted by Axis. Petitioners wer e

enthusiastic about the travel service and were impressed by the

presentation . Petitioners frequently traveled to trade shows

and believed the services would help reduce travel costs. They

were particularly interested in vacation packages because they

i ntended to travel to Cancun, Mexico. During the presentation ,

they were told of the bonus week fee of $97.00 . Ms. Page asked

specific questions about the costs for a vacation package for

Cancun and whether there would be any hidden or additional fees.

T he presenter assured Petitioners there would be no hidden or

additional fees.

3 . After the presentation, Petitioners jointly executed a

Reservation Services Agreement (Agreement) for a non - exclusive

license to access the travel network for a fee of $4,394 .00.

The fee was paid in two installments of $2,000 .00 and one

installment of $394.00.

4 . The agreement provides, in pertinent part, as follows:

Customer desires to enter into this

Agreement reservation services applicable to

vacation packages, nightl y stays, bonus

weeks, fantasy getaways, activities and

excursions, cruises, car rentals, golf

discounts, dining discounts, hotels and

luxury condominium and villa rentals

(ÐNetwork BenefitsÑ). The Customer

acknowledges that the Network Benefits may

be cha nged from time to time.

* * *

8. Discount Variation

All benefits and discounts conferred through

this Agreement vary greatly based on the

characteristics of the vacation unit or

type, the time of year, space availability,

and/or the rates charged by those parties

listing the accommodations for rent through

the Network . Customer acknowledges that

he/she has been advised that while some

discounts may be significant, these same

accommodations may not enjoy deep discounts

at other times and that deep dis counts are

not available for some vacation units or

types at any time. Customer acknowledges

that the value in this License is expected

to be realized over time contingent on the

frequency of the use and that the Purchase

Price is not guaranteed to be rec overed on a

single vacation, the first year, if Customer

does not take vacations, or if the vacation

choices are not tailored offerings.

* * *

17. Member Best Price Guarantee

Customer shall receive the Best Price

Guarantee if Customer finds lower p rices on

Equal Arrangements through a competing

vendor. To access the guarantee, Customer

must secure a confirmed reservation through

the Network that displays the Member Price

Guarantee checkmark, pay for the reservation

in full and receive a valid confi rmation

number. The sections on the website

included in the Best Price Guarantee are

vacations (i.e. Accom m odations, Cruises,

Vacation Packages, and Worldwide Tours) and

vacation add - ons (i.e. Car Rentals,

Activities and Golf). Airfare not included.

Eli gible cla ims must be submitted within

24 hours from the time the original fully

paid reservation is made and meet all the

Terms and conditions listed in full on the

Website, must be in US dollars, must be an

identical comparison to what was purchased

and m ust be publicly viewable via the

internet (i.e. the general public must be

able to view the rate on a website, as it

does not apply to consolidator fares, fares

that have been acquired through auction or

bid, or any Internet fares that cannot be

independen tly verified as to the price and

exact itinerary) and available and bookable

(i.e. the rate is currently available and

can be reserved online). Equal Travel

Arrangements shall be defined as the exact

same arrival and departure dates , the exact

same proper ty, the exact same room or cabin

classification, the exact same room or cabin

size, the exact same cruise line, and the

exact same itinerary. Reservations excluded

from the Best Price Guarantee include Non -

Refundable reservations, Airfare and

reservations made or purchased with Reward

Credits in full or in part. If the claim is

found to be valid, Customer will be credited

with 110% of the difference to (sic) in the

form of Reward Credits.

* * *

25. Entire Agreement

This instrument contains the entir e

agreement of the parties with respect to the

subject matter hereof and supersedes all

prior agreements, written or oral, with

respect to such subject matter. It may not

be changed orally but only by an agreement

in writing signed by the party against wh om

enforcement of any waiver, change,

modification, extension or discharge is

sought.

* * *

By signing below, the parties to hereby

execute this Agreement on the Execution Date

of this Agreement as identified herein . The

Licensee acknowledges and ag rees that this

Agreement is subject to all terms and

conditions set forth herein. The Licensee

further acknowledges having read the entire

Agreement and agreed to each of its

provisions prior to signing below.

* * *

YOU HAVE THE RIGHT TO CANCEL THIS CONTRACT

AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD

(3) CALENDAR DAY AFTER THE DATE OF THI S

C ONTRACT . UPON CANCELLATION, YOU WILL

RECEIVE A FULL REFUND, WITHOUT ANY CHARGES

OR PENALTY, WITHIN TEN (10) DAYS UNLES

SOONER REQUIRED BY APPLICABLE LAW. THIS

R IGHT IS NONWAIVABLE. TO EXERCISE YOUR

RIGHT TO CANCEL, YOU MUST SEND A WRITTEN

NOTICE STATING THAT YOU DO NOT WISH TO BE

BOUND BY THIS CONTRACT. THE NOTICE MAY BE

SENT BY EMAIL, FACSIMILE: 713 - 535 - 9239, OR

BY DEPOSIT FIRST - CLASS POSTAGE PREPAID, INTO

THE UNITED STATES MAIL: 13416 SOUTHSHORE DR.

CONROE, TX 77304.

5 . In November 2017, Petitioners used the network software

for the first time. Petitioners searched for accommodations in

Cancun, Mexico at an all - inclusive resort. The resort had a

price of $129.00 instead of $97.00 and a mandatory resort fee in

the amount of $135.00 to $185 per person per day . Petitioners

found accommodations at three different all - inclusive resorts,

which also required an additional mandatory resort fee. While

rooms were available for the price offered by using the

software, Petitioners were dissatisfied because the resorts

required a resort fee.

6 . At an unknown time after using the software,

Petitioners called Respondent but did not receive a return call.

On Decemb er 14, 2017, Petitioners sent text messages to Jonicar

Cruz seeking a refund because the service was not what was

represented to them at the presentation. Ms. Cruz offered to

assist Petitioners with the software program . Ms. Cruz also

directed Petitioner s to contact another staff member , as she was

no longer an employee of the company at that time. Petitioner s Ó

calls and emails to the other Axis staff member were left

unanswered.

7 . On February 7, 2018, Petitioners filed a complaint with

the Better B usiness Bureau , and on February 13, 2018,

Petitioners filed a complaint with the Office of Citizen

Services, Florida Attorney GeneralÓs Office , and the Better

Business Bureau . In April 2018, Petitioners filed a complaint

with the Department.

8 . Petitio ners admitted that they did not submit a written

letter of cancellation of the agreement during the three - day

cancellation period. Ms. Cruz testified that she did not

receive any written request to cancel the agreement during the

cancellation period.

9 . Ms. Cruz also testified that while she could not affirm

certain representations made by the presenter, sh e explained to

Petitioners the process for the price match guarantee, and that

a resort fee may be associated with all - inclusive resorts.

CONCLUSION S OF LAW

1 0 . The Division has jurisdiction over the parties and the

subject matter of this proceeding pursuant to sections 120.569

and 120.57(1), Florida Statutes.

1 1. Section 559.926, et . seq . , Florida Statutes, is the

Ð Florida Sellers of Travel Act. Ñ A Ðseller of travelÑ is

defined in section 559.927(11) as:

[ a ] ny resident or nonresident person, firm,

corporation, or business entity that offers,

directly or indirectly, prearranged travel

or tourist - related services for individuals

or groups, including , but not limited to,

vacation packages, or vacation certificates

in exchange for a fee, commission, or other

valuable consideration. The term includes

such person, firm, corporation, or business

entity who sells a vacation certificate to

third - party merc hants for a fee, or in

exchange for a commission, or who offers

such certificates to consumers in exchange

for attendance at sales presentations. The

term also includes any business entity

offering membership in a travel club or

travel services for an adv ance fee or

payment, even if no travel contracts or

certificates or vacation or tour packages

are sold by the business entity.

1 2. It is undisputed that Axis is a "seller of travel."

Sellers of travel are required to be registered with the

Departme nt in order to transact business in Florida. As part of

the registration process, sellers of travel must provide a

performance bond in an amount set by the Department.

See § 559.929(1) , Fla. Stat.

1 3. A consumer who is injured by a seller of travel may

bring an action to recover again st the bond pursuant to

chapter 120. § 559.929(3) and (4). In this case, Petitioner s

timely filed their claim against the bond seeking damages for

fraudulent misrepresentation.

14 . To pr evail on a claim for frau dulent

misrepresentation, Petitioner s must prove the following

elements: (1) a false statement concerning a material fact;

(2) the representor's knowledge that the representation is

false; (3) an intention that the representation induces another

to act on it; and (4) consequent injury by the party acting on

reliance on the representation. Johnson v. Davis , 480 So. 2d

625 (Fla. 1985).

15 . Petitioner s assert that the fraudulent

misrepresenta tion was the sales pitch regarding a certain amount

for travel accommodations and no additional fees.

16 . Petitioners attempted to reserve a room at an all -

inclusive resort. While Petitioners were dissatisfied with the

prices for rooms and comparative prices with other websites,

they did not avail themselves of th e discount guarantee. They

then sought to cancel the contract when they learned about the

additional resort fee s for an all - inclusive resort. Ms. Cruz

testified that she advised Petitioners about additional fees

that may be c harged by the individual hote ls before they signed

the agreement.

17 . Notably absent from the hearing was the testimony of

the presenter who pitched the travel services to Petitioners.

In the presenterÓs absence, PetitionersÓ testimony, that the

presenter assured them that there wo uld be no additional fees,

is uncorroborated hearsay.

18 . Petitioner s also suggest that Respondent engaged in

misrepresentation because they were offered prices that were not

the discount they believed to be comparable to other rates.

However, paragraph 8 of the Agreement is very clear that

discounts are variable depending on multiple factors , and that

the customer will enjoy more saving s the more frequently they

use the services provided by the software.

19 . Furthermore, Petitioners Ó primary complaint w as based

on the additional resort fees. However, the travel service was

not only for hotel stays, but it was for various other services

e.g., car rentals, dining discounts, and golf discounts .

20 . T he evidence in this case does not demonstrate that

Pet itioners were induced to enter the Agreement. I t seems

unreasonable that Petitioners , who are frequent travelers , would

rely on a statement made by a representative that a hotel would

not have independent fees associated with a hotel stay. As for

the pri ce difference for the hotel room, Petitioners did not

avail themselves of the price discount guarantee to obtain the

best price. As a result, Petitioners claim does not rise to the

level of fraudulent inducement in the sale of the Agreement.

21 . A ss uming arguendo that Petitioner s were sold the

Agreement through fraudulent misrepresentation, Petitioner s

failed to show any damages. The $ 4 , 394.00 paid was for the

software and concierge services that were available to

Petitioners. No evidence was prese nted that they paid for any

hotel or vacation package outside of the Axis network .

Further, Petitioners did not utilize the price match guarantee

available through Axis that would have compensated them for any

price difference for a hotel .

RECOMMENDATIO N

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioners, John Elkins a nd Mary

Page Ós , claim against Axis and the surety bond be DENIED.

DONE AND ENTERED this 4th day of September , 2018 , in

Tallahassee, Leon Cou nty, Florida.

S

YOLONDA Y. GREEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk o f the

Division of Administrative Hearings

this 4th day of September , 2018 .

COPIES FURNISHED :

W. Alan Parkinson, Bureau Chief

Department of Agriculture and

Consumer Services

Rhodes Building, R - 3

2005 Apalachee Parkway

Tallahassee, Florida 32399 - 6500

(e Served)

John E. Elkins

Mary Page

Apartment 1605

7507 Beach Boulevard

Jacksonville, Florida 32216 - 3053

(eServed)

Michael Borish

Axis Getaways Systems, LLC

965 North Griffin Shores Drive

St. Augustine, Florida 32080 - 7726

Axis Getaways Systems, LLC

Suite B

108 Seagrove Main Street

St. Augustine, Florida 32080

Travelers Casualty

Surety Company of America

One Tower Square

Hartford, Connecticut 06183

Bryan Greiner

Axis Getaway Systems, LLC

912 Ocean Palm Way

St. Augustine, Florida 32020

Tom A. Steckle r, Director

Division of Consumer Services

Department of Agriculture and

Consumer Services

Mayo Building, Room 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

Stephen Donelan, Agency Clerk

Division of Administration

Department of Agricult ure and

Consumer Services

407 South Calhoun Street, Room 509

Tallahassee, Florida 32399 - 0800

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Orde r. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.