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.
Recommended Order on Friday, January 11, 2019.
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.
- Date
- Proceedings
- PDF:
- Date: 01/29/2019
- Proceedings: Amended Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 01/11/2019
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- 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.
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
-
Scott A Cleary, Esquire
2029 North Third Street
Jacksonville Beach, FL 32250 -
Hudson Insurance Company
5th Floor
100 William Street
New York, NY 10038 -
Sheryl Koziarski
3157 La Reserve Drive
Ponte Vedra Beach, FL 32082 -
W. Alan Parkinson, Bureau Chief
Rhodes Building, R-3
2005 Apalachee Parkway
Tallahassee, FL 323996500
(850) 410-3697 -
Bernhard M. Wohltmann
571 Huffner Hill Circle
St. Augustine, FL 32092
(914) 830-7899 -
Winfrey A Parkinson, Bureau Chief
Address of Record