STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF AGRICULTURE AND CONSUMER ) SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6447

)

EXPRESSION GYM, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on January 9, 1995, in Miami and Tallahassee, Florida, by video teleconference.

APPEARANCES

For Petitioner: Joe Englander, Esquire

Senior Attorney

Department of Agriculture and Consumer Services

Room 515 Mayo Building Tallahassee, Florida 32399-0800

For Respondent: Gloria Gil, Owner

2633 West 76th Street Hialeah, Florida 33016

Yolanda Jaramillo, Interpreter STATEMENT OF THE ISSUES

Whether Respondent violated Section 501.15, Florida Statutes, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By letter dated October 10, 1994, Petitioner, Florida Department of Agriculture & Consumer Services (DACS), notified Respondent, Expression Gym, Inc. (Expression) that DACS intended to impose an administrative fine against Expression for failing to register as a health studio as required by Section 501.015, Florida Statutes. Expression requested an administrative hearing. The case was forwarded to the Division of Administrative Hearings for assignment to a Hearing Officer on November 16, 1994.

At the final hearing, DACS presented the testimony of James R. Kelley and Petitioner Exhibits 1-4 were admitted in evidence. Gloria Gil, one of the owners of Expression, testified on behalf of Expression through an interpreter, Yolanda Jaramillo. Respondent Exhibits 1-7 were admitted in evidence.

A transcript was filed on January 19, 1995. The parties agreed to submit proposed recommended orders within ten days of the filing of the transcript. A post hearing order was issued on January 20, 1995, stating that the proposed recommended orders would be due on or before January 30, 1995. DACS filed a proposed recommended order on January 27, 1995. Expression did not file a proposed recommended order. DACS's proposed findings of fact will be addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Expression Gym, Inc. (Expression) is a Florida Corporation with its place of business located at 2633 West 76th Street, Hialeah, Dade County, Florida. The business began in approximately 1991.

   
   

2. From the time of its inception, Expression has offered some type of fitness equipment for use at its facility.

   
   

3. In April, 1994, Fabio Otero began working at Expression. Mr. Otero brought all of his physical fitness equipment to the business for use at the facility. The working relationship between Mr. Otero and Expression ended in late July, 1994.

   
   

4. On August 1, 1994, Ms. Gloria Gil, an owner of Expression, bought some fitness equipment for use at Expression.

   
   

5. Sometime prior to September, 1994, DACS officials received information from the Hialeah occupational licensing office that Expression had an occupational license for an exercise studio or health studio.

   
   

6. A research of the records of DACS did not reveal that Expression had registered with DACS as a health studio.

   
   

7. On June 24, 1994, DACS sent a letter to Expression, notifying the business that health studios were required to be registered pursuant to Section 501.015, Florida Statutes, and enclosing a health studio registration form with the letter. Expression did not receive the letter.

   
   

8. On July 27, 1994, DACS sent another letter to Expression, stating that DACS had not received a reply to its previous letter and requesting Expression to send in the registration form. Expression did receive the July 27, 1994 letter.

   
   

9. DACS did not receive a registration form from Expression in response to the July 27, 1994 letter.

   
   

10. On September 2, 1994, James Kelley, an Assistant Division Director of the Division of Consumer Services, which is a part of DACS, made an on-site inspection of Expression's facility.

    
    

11. While at Expression's facility, Mr. Kelley talked to Mrs. Gil, who advised him that Expression had two types of memberships. One membership entitled the member to use the weight equipment at the facility and to

    participate in the aerobics program. The other membership was for a gymnastic program for children. Mrs. Gil advised Mr. Kelley that a three month membership could be purchased for $89, which also included one month free. A six month membership with one month free could be purchased for $129 and a nine month membership could be purchased for $199 which also entitled the member to one free month.

    
    

12. By letter dated October 10, 1994, DACS advised Expression that DACS intended to impose an administrative fine for failure to register as a health studio. DACS further advised Expression that it must register before engaging in any further health studio activities.

    
    

13. As of the date of the hearing Expression had not submitted a registration form to DACS.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

15. The burden of establishing a violation of Section 501.015, Florida Statutes, is on the Petitioner.

16. Section 501.015, Florida Statutes, provides: Each health studio shall:

    1. Register each of its business locations

       with the department in a form and manner as required by the department.

    2. Remit an annual registration fee of

       $300 to the department at the time of regis- tration for each of the health studio's business locations.

    3. File a security as required by s.

       501.016 at the time of registration.

17. Section 501.12, Florida Statutes, defines a health studio to mean: [A]ny person who is engaged in the sale of

    services for instruction, training or assistance in a program of physical exercise or in the sale of services for the right or privilege to use equipment or facilities in furtherance of a program of physical exercise.

    
    

18. Expression is a health studio within the definition of Section 501.12, Florida Statutes.

    
    

19. Expression has been operating as a health studio without registering as required by Section 501.15(1). Expression has not remitted an annual registration fee of $300 as required by Section 501.15(2).

    
    

20. Section 501.015(3) requires Expression to file with its registration a security pursuant to Section 501.016, Florida Statutes. Expression has not filed such security.

21. Expression has violated Sections 501.015(1), (2), and (3), Florida Statutes.

    
    

22. An agency must be specific enough in its pleadings "to inform the accused of the nature of the charges." Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984). DACS has argued in its recommended order that Expression has also violated Sections 501.016 and 501.017, Florida Statutes. The Notice of Intent to Impose Administrative Fine did not advise Expression that it had violated Section 501.017 by not having future health studio service contracts in writing nor did the notice advise Expression that it was being charged with a violation of Section 501.016, Florida Statutes, by failing to maintain security. The violations set forth in the notice relate to violations of Section 501.015. Thus, to now find that Expression is guilty of actions for which it was not charged would be a fundamental violation of due process.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Expression Gym, Inc.

violated Sections 501.015(1), (2), (3), Florida Statutes, and assessing a penalty of $1,000.00.

DONE AND ENTERED this 6th day of February, 1995, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6447

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraphs 1-3: Accepted in substance.

2. Paragraph 4: Rejected to the extent that it implies that Expression actually received the letter of June 24, 1994.

3. Paragraph 5: Accepted to the extent that Expression received the July 27, 1994 letter but rejected to the extent that it was the second notice that Expression had

   received.

4. Paragraph 6: Accepted in substance.

5. Paragraph 7: Accepted.

6. Paragraph 8: Rejected as irrelevant to the charges

   in the Notice of Intent to Impose Administrative Fine.

7. Paragraph 9: Accepted in substance.

COPIES FURNISHED:

Joe Englander, Esquire Department of Agriculture and

Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Expression Gym C/O Gloria Gil

2633 West 76th Street Hialeah, Florida 33016

Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler General Counsel Department of Agriculture

and Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-006447

Orders for Case No: 94-006447