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.


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8SHERYL KOZIARSKI,

10Petitioner,

11vs. Case No. 18 - 5655

17PONTE VEDRA A1A, INC., d/b/a

22PONTE VEDRA FITNESS AND HUDSON

27INSURANCE COMPANY, AS SURETY,

31Respondents.

32_______________________________/

33RECOMMENDED ORDER

35Pursuant to agreement of the parties, the undersigned

43issues this Recommended Order based on a stipulated record

52submitted by the parties .

57APPEARANCES

58For Petitioner: Scott A. Cleary, Esquire

64Cleary Law

662029 North Third Street

70Jacksonville Beach, Florida 32250

74For Respondent Ponte Vedra A1A, Inc.:

80Bernard M. Wohltmann, pro se

85Ponte Vedra A1A, Inc.

89571 Huffner Hill Circle

93St. Augustine, Florida 32092

97For Respondent Hudson Insurance Company:

102No representative appeared on beh alf of

109the company.

111STATEMENT OF THE ISSUE S

116Whether Respondent, Ponte Vedra A1A, Inc. , d/b/a Ponte

124Vedra Fitness, is liable to Petitioner for the balance of funds

135paid to Respondent for a fitness center membership; and, if so,

146in what amount.

149PRELIMINAR Y STATEMENT

152On September 19, 2018, Petitioner filed a claim with the

162Department of Agriculture and Consumer Services (Department)

169against Ponte Vedra A1A, Inc. , d/b/a Ponte Vedra Fitness,

178alleging money owed on a health studio contract. The claim was

189prec eded by a request for administrative hearing filed by

199PetitionerÓs counsel on August 23, 2018.

205Both the claim and request for hearing were forwarded to

215the Division of Administrative Hearings on October 23, 2018.

224In response to the undersignedÓs Initial Or der, Petitioner

233filed a request for an informal hearing. The undersigned

242conducted a telephonic hearing on the request, during which the

252parties clarified their agreement to forego a disputed fact -

262finding hearing. The parties requested the undersigned to issue

271a recommended order based solely on the pre - filed evidence and

283written argument of the parties.

288Following the telephonic conference, the undersigned issued

295an Order on Conduct of Proceedings, setting a deadline of

305November 30, 2018, for the parties to submit exhibits (along

315with any objection to the opposing partyÓs exhibits), and

324December 14, 2018, to submit their written argument to the

334undersigned. Petitioner timely filed exhibits and a Proposed

342Recommended Order, which has been taken into consid eration by

352the undersigned. Respondent did not file either exhibits or

361written argument.

363FINDING S OF FACT

3671. On December 5, 2017, Petitioner entered into a fitness

377membership contract with Respo ndentÓs facility located at

385830 A1A North in Ponte Vedra Bea ch, Florida (the facility). She

397paid the contract in full in the amount of $850.94.

4072. The contract was a 24 - m onth membership ending

418December 5, 2019. However, when Petitioner enrolled, she

426received three additional months free. Thus, the contract term

435end s on March 5, 2020.

4413. Respondent is the owner and operator of the facility.

4514. On or about July 6, 2018, Respondent closed the

461facility. On July 8, 2018, Respondent posted a sign at the

472facility informing customers that the facility was closed and

481that their memberships were Ðbeing honored at Baileys Health and

491Fitness: 1352 Beach Blvd. for the next 30 days.Ñ

5005. PetitionerÓs contract with Respondent reads, in

507pertinent part, as follows:

511This contract may be cancelled if the

518contracting business lo cation of the health

525studio goes out of business, or moves its

533facilities more than 5 driving miles from

540the business location designated in such

546contract and fails to provide, within

55230 days, a facility of equal quality located

560within 5 driving miles of t he business

568location designated in such contract at no

575additional cost to the buyer.

5806. Petitioner submitted evidence to document that BaileyÓs

588Fitness is located more than five driving miles from her home

599address.

6007. However, pursuant to the contract, RespondentÓs duty to

609reimburse Petitioner is triggered if Respondent Ðfails to

617provide similar facilities . . . located within five (5) driving

628miles from the business location designated in such contract .Ñ

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

647contract is the location of the facility, not PetitionerÓs home

657address.

6588. The record contains no evidence to support a finding

668that BaileyÓs is located more than five driving miles from the

679facility. 1/

6819. Further, the contract notes in bold and all capital

691letters as follows:

694SHOULD YOU (THE BUYER) CHOOSE TO PAY FOR

702MORE THAN ONE (1) MONTH OF THIS AGREEMENT IN

711ADVANCE, BE AWARE THAT YOU ARE PAYING FOR

719FUTURE SERVICES AND MAY BE RISKING LOSS OF

727YOUR MONEY IN THE EVENT THIS HEALTH STUDIO

735AND/OR THIS BUSINESS LOCATION CEASES TO

741OPERATE. THIS HEALTH STUDIO IS NOT REQUIRED

748BY LAW TO PROVIDE ANY SECURITY, AND THERE

756MAY NOT BE OTHER PROTECTIONS TO YOU SHOULD

764YOU CHOOSE TO PAY IN ADVANCE.

77010. The evidence demonstrates that Petitioner attempted to

778c ancel the contract and pursue a refund by notifying Respondent

789of her request for refund in writing, pursuant to the terms of

801the agreement. PetitionerÓs written request was returned as

809unclaimed and unable to be forwarded.

81511. The evidence does not supp ort a finding that

825Respondent violated the terms of contract such that Petitioner

834is due a refund. 2/

839CONCLUSIONS OF LAW

84212. The Division has jurisdiction over the parties and the

852subject matter of this proceeding. §§ 120.569 and 120.57(1),

861Fla. Stat. (20 18).

86513. The Department serves as a clearinghouse for matters

874relating to consumer protection, and has the duty and authority

884to receive complaints from consumers and to seek resolution of

894those complaints through formal or informal means. See

902§ 570.544, Fla. Stat. (2018).

90714. Respondent is a Ðhealth studio,Ñ as that term is

918defined in section 501.0125, Florida Statutes, regulated by the

927Departm ent pursuant to section 501.012 - .019 . 3/

93715. Petitioner bears the burden of proving the allegations

946in her comp laint by a preponderance of the evidence. See DepÓt

958of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern &

972Co. , 670 So. 2d 932, 934 (Fla. 1996) (ÐThe general rule is that

985a party asserting the affirmative of an issue has the burden of

997presenting evidence as to that issue . Ñ); Fla. DepÓt of Transp.

1009v. J.W.C. Co. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

102116. Petitioner failed to carry her burden of proof.

1030Respondent did not violate the contract by failing to provide a

1041similar facility located withi n five driving miles of the

1051facility at no additional cost to the member.

1059RECOMMENDATION

1060Based on the foregoing Findings of Fact and Conclusions of

1070Law, it is RECOMMENDED that the Department of Agriculture and

1080Consumer Services enter a final order dismissi ng Case No. 1809 -

109243450 against Ponte Vedra A1A, Inc., d/b/a Ponte Vedra Fitness ,

1102and Hudson Insurance Company, as Surety.

1108DONE AND ENTERED this 1 1 th day of January , 2019 , in

1120Tallahassee, Leon County, Florida.

1124S

1125SUZANNE V AN WYK

1129Administrative Law Judge

1132Division of Administrative Hearings

1136The DeSoto Building

11391230 Apalachee Parkway

1142Tallahassee, Florida 32399 - 3060

1147(850) 488 - 9675

1151Fax Filing (850) 921 - 6847

1157www.doah.state.fl.us

1158Filed with the Clerk of the

1164Division of Administr ative Hearings

1169this 1 1 th day of January , 2019 .

1178ENDNOTE S

11801/ Petitioner asserts in her Proposed Recommended Order that

1189Ðthe proposed replacement facility is over 5 miles from the

1199subject facility.Ñ However, there is no record evidence to

1208support that fa ctual allegation .

12142/ Petitioner maintains in her Proposed Recommended Order that

1223the additional three free months on her current contract were

1233inducement to re - enroll when her existing contract expired in

1244December 2017, and that the terms of the offer re quired her to

1257pay the contract in full. There is no record evidence to

1268support that allegation . If true, the undersigned sympathizes

1277with PetitionerÓs plight and acknowledges that Respondent may

1285have taken advantage of Petitioner in that respect. Even i f

1296true, that fact would be insufficient to support a finding that

1307Respondent violated the terms of the contract Petitioner entered

1316into with Respondent.

13193/ The Department has the authority to find whether a health

1330studio has intentionally defraud ed the p ublic through dishonest

1340or deceptive means , and impose penalties for doing so . See

1351§ 501.019(4), Fl a . Stat .

1358COPIES FURNISHED:

1360W. Alan Parkinson, Bureau Chief

1365Department of Agriculture and

1369Consumer Services

1371Rhodes Building, R - 3

13762005 Apalachee Parkway

1379Tallahassee, Florida 32399 - 6500

1384Scott A. Cleary, Esquire

1388Cleary Law

13902029 North Third Street

1394Jacksonville Beach, Florida 32250

1398(eServed)

1399Hudson Insurance Company

14025th Floor

1404100 William Street

1407New York, New York 10038

1412Sheryl Koziarski

14143157 La Reserve Dr ive

1419Ponte Vedra Beach, Florida 32082

1424Bernhard M. Wohltmann

1427Ponte Vedra A1A, Inc.

1431571 Huffner Hill Circle

1435St. Augustine, Florida 32092

1439Steven Hall, General Counsel

1443Department of Agriculture and

1447Consumer Services

1449407 South Calhoun Street, Suite 520

1455T allahassee, Florida 32399 - 0800

1461(eServed)

1462Nicole H. Fried , Commissioner

1466Department of Agriculture and

1470Consumer Services

1472The Capitol, Plaza Level 10

1477Tallahassee, Florida 32399 - 0810

1482NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1488All parties have the right to submit written exceptions within

149815 days from the date of this Recommended Order. Any exceptions

1509to this Recommended Order should be filed with the agency that

1520will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/12/2019
Proceedings: Agency Final Order filed.
PDF:
Date: 04/11/2019
Proceedings: Agency Final Order
PDF:
Date: 01/29/2019
Proceedings: Amended RO
PDF:
Date: 01/29/2019
Proceedings: Amended Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/29/2019
Proceedings: Amended Recommended Order.
PDF:
Date: 01/28/2019
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 01/11/2019
Proceedings: Recommended Order
PDF:
Date: 01/11/2019
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/11/2019
Proceedings: Recommended Order. CASE CLOSED.
PDF:
Date: 12/14/2018
Proceedings: Argument in Support of Petitioner's Administrative Complaint filed.
Date: 11/30/2018
Proceedings: Notice of Filing Petitioner's Exhibits filed (confidential information, not available for viewing).  Confidential document; not available for viewing.
PDF:
Date: 11/15/2018
Proceedings: Order on Conduct of Proceedings.
PDF:
Date: 11/08/2018
Proceedings: Motion for Informal Hearing filed.
PDF:
Date: 10/25/2018
Proceedings: Initial Order.
PDF:
Date: 10/23/2018
Proceedings: Letter to Bernhard Wohltmann from Anita Francis advising of your rights to a formal hearing filed.
PDF:
Date: 10/23/2018
Proceedings: Informal Hearing Request filed.
PDF:
Date: 10/23/2018
Proceedings: Claim Affidavit filed.
PDF:
Date: 10/23/2018
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 10/23/2018
Proceedings: Agency referral filed.

Case Information

Judge:
SUZANNE VAN WYK
Date Filed:
10/23/2018
Date Assignment:
10/25/2018
Last Docket Entry:
04/12/2019
Location:
Ponte Vedra Beach, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (6):