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.


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

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.

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Date
Proceedings
PDF:
Date: 10/15/2018
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 09/13/2018
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 09/04/2018
Proceedings: Recommended Order
PDF:
Date: 09/04/2018
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 09/04/2018
Proceedings: Recommended Order (hearing held July 25, 2018). CASE CLOSED.
PDF:
Date: 08/06/2018
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 08/01/2018
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 08/01/2018
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 07/26/2018
Proceedings: Order Regarding Proposed Recommended Orders.
Date: 07/25/2018
Proceedings: CASE STATUS: Hearing Held.
Date: 07/20/2018
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 07/13/2018
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 07/05/2018
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 06/28/2018
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/28/2018
Proceedings: Notice of Hearing (hearing set for July 25, 2018; 9:30 a.m.; St. Augustine, FL).
PDF:
Date: 06/26/2018
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 06/19/2018
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 06/18/2018
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 06/11/2018
Proceedings: Initial Order.
PDF:
Date: 06/08/2018
Proceedings: Surety Bond filed.
PDF:
Date: 06/08/2018
Proceedings: Claim Affidavit filed.
PDF:
Date: 06/08/2018
Proceedings: Election of Rights filed.
PDF:
Date: 06/08/2018
Proceedings: Agency referral filed.

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

Related Florida Statute(s) (5):