18-005655 Sheryl Koziarski vs. Ponte Vedra A1a, Inc., D/B/A Ponte Vedra Fitness And Hudson Insurance Company, As Surety Status: Closed Recommended Order on Friday, January 11, 2019.

Summary: Petitioner did not prove that she was entitled to unused balance of her fitness studio contract with Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERYL KOZIARSKI,

Petitioner,

vs. Case No. 18 - 5655

PONTE VEDRA A1A, INC., d/b/a

PONTE VEDRA FITNESS AND HUDSON

INSURANCE COMPANY, AS SURETY,

Respondents.

_______________________________/

RECOMMENDED ORDER

Pursuant to agreement of the parties, the undersigned

issues this Recommended Order based on a stipulated record

submitted by the parties .

APPEARANCES

For Petitioner: Scott A. Cleary, Esquire

Cleary Law

2029 North Third Street

Jacksonville Beach, Florida 32250

For Respondent Ponte Vedra A1A, Inc.:

Bernard M. Wohltmann, pro se

Ponte Vedra A1A, Inc.

571 Huffner Hill Circle

St. Augustine, Florida 32092

For Respondent Hudson Insurance Company:

No representative appeared on beh alf of

the company.

STATEMENT OF THE ISSUE S

Whether Respondent, Ponte Vedra A1A, Inc. , d/b/a Ponte

Vedra Fitness, is liable to Petitioner for the balance of funds

paid to Respondent for a fitness center membership; and, if so,

in what amount.

PRELIMINAR Y STATEMENT

On September 19, 2018, Petitioner filed a claim with the

Department of Agriculture and Consumer Services (Department)

against Ponte Vedra A1A, Inc. , d/b/a Ponte Vedra Fitness,

alleging money owed on a health studio contract. The claim was

prec eded by a request for administrative hearing filed by

PetitionerÓs counsel on August 23, 2018.

Both the claim and request for hearing were forwarded to

the Division of Administrative Hearings on October 23, 2018.

In response to the undersignedÓs Initial Or der, Petitioner

filed a request for an informal hearing. The undersigned

conducted a telephonic hearing on the request, during which the

parties clarified their agreement to forego a disputed fact -

finding hearing. The parties requested the undersigned to issue

a recommended order based solely on the pre - filed evidence and

written argument of the parties.

Following the telephonic conference, the undersigned issued

an Order on Conduct of Proceedings, setting a deadline of

November 30, 2018, for the parties to submit exhibits (along

with any objection to the opposing partyÓs exhibits), and

December 14, 2018, to submit their written argument to the

undersigned. Petitioner timely filed exhibits and a Proposed

Recommended Order, which has been taken into consid eration by

the undersigned. Respondent did not file either exhibits or

written argument.

FINDING S OF FACT

1. On December 5, 2017, Petitioner entered into a fitness

membership contract with Respo ndentÓs facility located at

830 A1A North in Ponte Vedra Bea ch, Florida (the facility). She

paid the contract in full in the amount of $850.94.

2. The contract was a 24 - m onth membership ending

December 5, 2019. However, when Petitioner enrolled, she

received three additional months free. Thus, the contract term

end s on March 5, 2020.

3. Respondent is the owner and operator of the facility.

4. On or about July 6, 2018, Respondent closed the

facility. On July 8, 2018, Respondent posted a sign at the

facility informing customers that the facility was closed and

that their memberships were Ðbeing honored at Baileys Health and

Fitness: 1352 Beach Blvd. for the next 30 days.Ñ

5. PetitionerÓs contract with Respondent reads, in

pertinent part, as follows:

This contract may be cancelled if the

contracting business lo cation of the health

studio goes out of business, or moves its

facilities more than 5 driving miles from

the business location designated in such

contract and fails to provide, within

30 days, a facility of equal quality located

within 5 driving miles of t he business

location designated in such contract at no

additional cost to the buyer.

6. Petitioner submitted evidence to document that BaileyÓs

Fitness is located more than five driving miles from her home

address.

7. However, pursuant to the contract, RespondentÓs duty to

reimburse Petitioner is triggered if Respondent Ðfails to

provide similar facilities . . . located within five (5) driving

miles from the business location designated in such contract .Ñ

(emphasis added). The business location designa ted in the

contract is the location of the facility, not PetitionerÓs home

address.

8. The record contains no evidence to support a finding

that BaileyÓs is located more than five driving miles from the

facility. 1/

9. Further, the contract notes in bold and all capital

letters as follows:

SHOULD YOU (THE BUYER) CHOOSE TO PAY FOR

MORE THAN ONE (1) MONTH OF THIS AGREEMENT IN

ADVANCE, BE AWARE THAT YOU ARE PAYING FOR

FUTURE SERVICES AND MAY BE RISKING LOSS OF

YOUR MONEY IN THE EVENT THIS HEALTH STUDIO

AND/OR THIS BUSINESS LOCATION CEASES TO

OPERATE. THIS HEALTH STUDIO IS NOT REQUIRED

BY LAW TO PROVIDE ANY SECURITY, AND THERE

MAY NOT BE OTHER PROTECTIONS TO YOU SHOULD

YOU CHOOSE TO PAY IN ADVANCE.

10. The evidence demonstrates that Petitioner attempted to

c ancel the contract and pursue a refund by notifying Respondent

of her request for refund in writing, pursuant to the terms of

the agreement. PetitionerÓs written request was returned as

unclaimed and unable to be forwarded.

11. The evidence does not supp ort a finding that

Respondent violated the terms of contract such that Petitioner

is due a refund. 2/

CONCLUSIONS OF LAW

12. The Division has jurisdiction over the parties and the

subject matter of this proceeding. §§ 120.569 and 120.57(1),

Fla. Stat. (20 18).

13. The Department serves as a clearinghouse for matters

relating to consumer protection, and has the duty and authority

to receive complaints from consumers and to seek resolution of

those complaints through formal or informal means. See

§ 570.544, Fla. Stat. (2018).

14. Respondent is a Ðhealth studio,Ñ as that term is

defined in section 501.0125, Florida Statutes, regulated by the

Departm ent pursuant to section 501.012 - .019 . 3/

15. Petitioner bears the burden of proving the allegations

in her comp laint by a preponderance of the evidence. See DepÓt

of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern &

Co. , 670 So. 2d 932, 934 (Fla. 1996) (ÐThe general rule is that

a party asserting the affirmative of an issue has the burden of

presenting evidence as to that issue . Ñ); Fla. DepÓt of Transp.

v. J.W.C. Co. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

16. Petitioner failed to carry her burden of proof.

Respondent did not violate the contract by failing to provide a

similar facility located withi n five driving miles of the

facility at no additional cost to the member.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Agriculture and

Consumer Services enter a final order dismissi ng Case No. 1809 -

43450 against Ponte Vedra A1A, Inc., d/b/a Ponte Vedra Fitness ,

and Hudson Insurance Company, as Surety.

DONE AND ENTERED this 1 1 th day of January , 2019 , in

Tallahassee, Leon County, Florida.

S

SUZANNE V AN WYK

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 of the

Division of Administr ative Hearings

this 1 1 th day of January , 2019 .

ENDNOTE S

1/ Petitioner asserts in her Proposed Recommended Order that

Ðthe proposed replacement facility is over 5 miles from the

subject facility.Ñ However, there is no record evidence to

support that fa ctual allegation .

2/ Petitioner maintains in her Proposed Recommended Order that

the additional three free months on her current contract were

inducement to re - enroll when her existing contract expired in

December 2017, and that the terms of the offer re quired her to

pay the contract in full. There is no record evidence to

support that allegation . If true, the undersigned sympathizes

with PetitionerÓs plight and acknowledges that Respondent may

have taken advantage of Petitioner in that respect. Even i f

true, that fact would be insufficient to support a finding that

Respondent violated the terms of the contract Petitioner entered

into with Respondent.

3/ The Department has the authority to find whether a health

studio has intentionally defraud ed the p ublic through dishonest

or deceptive means , and impose penalties for doing so . See

§ 501.019(4), Fl a . Stat .

COPIES FURNISHED:

W. Alan Parkinson, Bureau Chief

Department of Agriculture and

Consumer Services

Rhodes Building, R - 3

2005 Apalachee Parkway

Tallahassee, Florida 32399 - 6500

Scott A. Cleary, Esquire

Cleary Law

2029 North Third Street

Jacksonville Beach, Florida 32250

(eServed)

Hudson Insurance Company

5th Floor

100 William Street

New York, New York 10038

Sheryl Koziarski

3157 La Reserve Dr ive

Ponte Vedra Beach, Florida 32082

Bernhard M. Wohltmann

Ponte Vedra A1A, Inc.

571 Huffner Hill Circle

St. Augustine, Florida 32092

Steven Hall, General Counsel

Department of Agriculture and

Consumer Services

407 South Calhoun Street, Suite 520

T allahassee, Florida 32399 - 0800

(eServed)

Nicole H. Fried , Commissioner

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.