STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILIES,

vs.

Petitioner,

Case No. 18-4680

YOUTHFIT BY BODY ZONE FITNESS,

Respondent.

/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2018),1/ before Cathy M. Sellers, an Administrative Law Judge of the Division of Administrative Hearings, on January 30, 2019, by video teleconference at sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Stephanie Camfield, Esquire

Department of Children and Families 1317 Winewood Boulevard, Building 2

Tallahassee, Florida 32399-0700

For Respondents: Calvin Paquette

YouthFit by BodyZone Fitness 2740 North Roosevelt Boulevard Key West, Florida 33040

STATEMENT OF THE ISSUE

Whether Respondent, YouthFit by BodyZone Fitness, conducts activities that constitute "child care," so that it must obtain a child care facility license in order to conduct these activities.

PRELIMINARY STATEMENT

On July 16, 2018, Petitioner, Department of Children and Families ("DCF") sent an agency action letter to Calvin Paquette, owner and manager of YouthFit by BodyZone Fitness ("YouthFit"), notifying him that the youth fitness activities conducted by YouthFit constituted "child care," so that YouthFit is required to obtain a child care facility license under chapter 402, Florida Statutes, in order to conduct these activities. Calvin Paquette, YouthFit's owner and manager, timely requested a hearing, and the matter was referred to DOAH to conduct a hearing pursuant to sections 120.569 and 120.57(1).

The final hearing originally was scheduled for October 18, 2018, but pursuant to emergency motion filed by DCF, the hearing was continued to January 30, 2019.

The final hearing was held on January 30, 2019. DCF presented the testimony of Shelley Tinney. Petitioner's Exhibits C and G were admitted into evidence without objection, and Petitioner's Exhibits A, B, D, and F were admitted into evidence over objection. Calvin Paquette testified on behalf of

YouthFit. YouthFit did not tender any exhibits for admission into evidence.

A transcript of the final hearing was not filed.

DCF timely filed its proposed recommended order ("PRO") on February 11, 2019, and the undersigned duly considered this PRO in preparing this Recommended Order. YouthFit did not file a PRO.

FINDINGS OF FACT

1. The Parties

   
   

   1. Petitioner DCF is the state agency responsible, pursuant to chapter 402, Florida Statutes, for regulating providers of "child care," as that term is defined in section 402.302(1).

   2. Respondent YouthFit is a Florida limited liability company. It is located at, and its business address is,

      2827 North Roosevelt Boulevard, Key West, Florida. YouthFit is owned and managed by Calvin Paquette. Paquette also owns BodyZone Fitness, LLC ("BodyZone"), a Florida limited liability company that operates a fitness facility located at 2740 North Roosevelt Boulevard, Key West, contiguous to YouthFit.

2. Information Submitted in Questionnaire

   
   

   1. On July 13, 2018, Paquette submitted a Child Care Licensure Questionnaire ("Questionnaire") to DCF on behalf of YouthFit, requesting a determination whether YouthFit conducts

      
      

      "child care." The Questionnaire was admitted into evidence at the final hearing.

   2. The Questionnaire provided information regarding the nature and location of YouthFit's operation; the types of activities that YouthFit provides to children; the ages of the children participating in YouthFit's activities; the type of supervision that YouthFit provides to participants; and the payment/fee arrangements to participate in YouthFit's activities.

   3. According to the Questionnaire, YouthFit is a youth fitness program consisting of instructor-led classes offered to children ranging in age from preschool to high school. The classes identified in the Questionnaire were tumbling classes; strength, conditioning, and flexibility classes; and ninja classes.

   4. A YouthFit Class Pricing Schedule attached to the Questionnaire showed that, at the time the Questionnaire was submitted, YouthFit also offered "open gym" and "parents' night out" activities. Both of these activities entailed parents dropping children off at, and picking them up from, YouthFit.

   5. The Questionnaire stated that YouthFit offered classes from 9:00 a.m. to 9:00 p.m., seven days a week. Per the Questionnaire, participation in these classes is limited to one to two hours of class per day for each child. Attendance is not

      
      

      required, and the same children do not necessarily attend YouthFit's classes on a regular basis.

   6. The Questionnaire stated that parents are not required to remain on the YouthFit premises at all times, although they are permitted to do so. Parents may drop children off at the YouthFit facility to participate in classes and are expected to pick them up after class is over.

   7. The Questionnaire stated that children are not permitted to enter and leave the YouthFit classes or premises unless they have permission pursuant to prior arrangement or have adult supervision. Parents are required to sign their children in and out of the YouthFit classes and premises.

   8. According to the Questionnaire YouthFit supervises all children who are participating in its classes, including the children whose parents remain on the premises.

   9. Prepackaged snacks and drinks are offered to the participants of each of YouthFit's classes.

   10. Payment for participation in YouthFit's activities is made two ways: payment through adult membership at BodyZone Fitness, and payment of a drop-in fee for persons who are not members of BodyZone Fitness.

   11. YouthFit is not operated by a public or nonpublic school and is not located on a school site.

       
       

   12. YouthFit is not affiliated with a national non-profit organization created for the purpose of providing youth service and youth development.

   13. Based on the foregoing information, DCF determined that YouthFit provides "child care," as defined in section 402.302(1); therefore, it is required to be licensed as a "child care facility" pursuant to section 402.305, unless it falls within a statutory or rule exemption from the licensure requirement.

   14. Based on its review of the Questionnaire, DCF also determined that YouthFit did not qualify for any statutory or rule exemption from licensure as a child care facility.

   15. Accordingly, DCF notified Paquette of its decision that YouthFit was required to obtain a child care facility license in order to provide its youth fitness program activities.

3. Facts Stated in YouthFit's Request for Hearing

   
   

   1. As noted above, Paquette timely requested a hearing challenging DCF's decision that YouthFit must obtain a child care facility license. In the letter requesting a hearing, Paquette provided additional information regarding the YouthFit fitness program. This letter was admitted into evidence as Petitioner's Exhibit C.

      
      

   2. According to the letter, YouthFit classes will be offered in BodyZone's expanded premises, which accommodate both YouthFit classes and adult fitness activities.

   3. Per the letter, children ages two through 18 may take the YouthFit classes. The letter clarified that a parent must be present at all times for children ages four and under, and YouthFit may require a parent to be present for children up to age five.

   4. The letter also clarified that each child would be limited to one class per day, which may range from 45 minutes to two hours in duration.

   5. The letter stated that YouthFit would not offer "child care" services, but, instead, would "operate no different [sic] than a local gymnastics center (or martial-arts dojo) offering tumbling classes (or ju-jitsu classes)." The letter explained that the "intent is fitness activities, not child care services."

4. Other Evidence Presented at the Final Hearing

1. DCF presented evidence at the final hearing that included screenshots of YouthFit's website, Facebook page, and Twitter account. At the time the screenshots were taken, YouthFit's Facebook page and Twitter account advertised a range of YouthFit classes and activities, including tumbling, Zumba

   
   

   kids, yoga kids, ninja class, boot camp, open gym, parents' night out, and day camps.

2. Paquette testified that the hours associated with YouthFit's program recently have changed, so that classes and activities are now offered from 3:30 p.m. to 6:00 p.m. Additionally, YouthFit no longer offers parents' night out, open gym, or day camps.

3. Paquette also testified that YouthFit no longer advertises its activities on Facebook and Twitter. However, at the time of the final hearing, he had not been able to access these accounts, so the advertisements had not been removed from the internet. Paquette testified that the sole means by which information on YouthFit's classes and activities is disseminated is by "word-of-mouth."

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

5. "Child care" means the care, protection, and supervision of a child, for a period of less than 24 hours a day on a regular basis, which supplements parental care, enrichment, and health supervision for the child, in accordance with his or her individual needs, and for which a payment, fee, or grant is made for care. § 402.302(1), Fla. Stat.

   
   

6. "Child care facility" includes any child care center or child care arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee, or grant for any of the children receiving care, wherever operated, and whether or not operated for profit.

   § 402.302(2), Fla. Stat.

   
   

7. Section 402.312(1) prohibits the operation of a child care facility without a license.2/

8. "Drop-in child care" means child care provided occasionally in a child care facility in a shopping mall or business establishment where a child is in care for no more than a 4-hour period and the parent remains on the premises of the shopping mall or business establishment at all times. Drop-in child care arrangements shall meet all requirements for a child care facility unless specifically exempted. § 402.302(6), Fla. Stat.

9. "Evening child care" means child care provided during the evening hours and may encompass the hours of 6:00 p.m. to 7:00 a.m. to accommodate parents who work evenings and late- night shifts. § 402.302(7), Fla. Stat.

10. Indoor recreational facility" means:

    
    

    an indoor commercial facility which is established for the primary purpose of entertaining children in a planned fitness environment through equipment, games, and activities in conjunction with food service

    
    

    and which provides child care for a particular child no more than 4 hours on any one day. An indoor recreational facility must be licensed as a child care facility under s. 402.305, but is exempt from the minimum outdoor-square-footage-per-child requirement specified in that section, if the indoor recreational facility has, at a minimum, 3,000 square feet of usable indoor floor space.

    
    

    § 402.302(10), Fla. Stat. (emphasis added).

    
    

11. Based on the foregoing, it is concluded that YouthFit's activities program constitutes "child care," as defined in section 402.301(1). Specifically, YouthFit offers fitness classes and other fitness-related activities that provide supervision for children less than 24 hours per day on a regular basis. These classes and activities supplement parental care, enrichment, and health supervision, and they are offered for a fee.

12. Further, to the extent YouthFit provides classes or open gym activities for children whose parents remain on the YouthFit/BodyZone premises, this constitutes "drop-in child care," as defined section 402.302(6), for which a child care facility license is required, unless otherwise specifically exempt by statute or rule.

13. YouthFit also falls within the definition of an "indoor recreational facility" required to be licensed as a child care facility. Specifically, it is a commercial facility

    
    

    having the primary purpose of entertaining children in a planned fitness environment through equipment, games, and activities; it offers food service in the form of pre-packaged snacks; and, it provides youth fitness classes and activities for no more than four hours on any one day.

14. Section 402.302(2) expressly exempts the following from the definition of "child care facility": public and non- public schools and their integral programs, except as otherwise provided by law; summer camps having children in full-time residence; summer day camps; bible schools normally conducted during vacation periods; and transient establishments, as defined in chapter 509, Florida Statutes, that provide child care services solely for guests of their establishment or resort, provided that child care personnel of the establishment are screened according to the level 2 screening requirements of chapter 435, Florida Statutes.

15. The evidence establishes that YouthFit does not fall within any of these statutory exemptions from the definition of "child care facility" for which a license is required pursuant to section 402.312.

16. No evidence was presented showing that YouthFit falls within any child care facility licensure exemptions established by rule.3/

    
    

17. Based on the foregoing, it is concluded that YouthFit's program of classes and activities constitutes "child care," as defined in section 402.302(1).

18. Therefore, YouthFit must obtain a child care facility license pursuant to section 402.305 in order to lawfully offer these classes and activities.

    RECOMMENDATION

    
    

    Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order finding that Respondent, Youthfit by BodyZone Fitness, LLC, currently provides a program of classes and activities that constitute "child care," so that it is required to obtain a "child care facility" license to provide this program.

    DONE AND ENTERED this 6th day of March, 2019, in Tallahassee, Leon County, Florida.

    S

    CATHY M. SELLERS

    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 Administrative Hearings this 6th day of March, 2019.

    
    

    ENDNOTES

    
    

    1/ All statutory references are to the 2018 version of Florida Statutes.

    
    

    2/ Section 402.312(1) authorizes DCF to file suit in circuit court against a facility that engages in activities that constitute "child care," as defined in section 402.302(1), without having obtained a license.

    
    

    3/ Florida Administrative Code Rule 65C-22.008(3) exempts certain "school age child care" programs from the child facility licensure requirement in section 402.312. "School age child" is defined in the School-Age Child Care Licensing Handbook, March 2017, as "a child who is at least 5 years of age by September 1st of the beginning of the school year and who attends grades kindergarten or above." Id. at 9. YouthFit offers classes and activities for children below age five, so currently does not qualify as a "school age child care" program. Assuming YouthFit were to offer its classes and activities to children fitting the definition of "school age child," and were to tailor its classes/activities to fall within one of the programs identified in rule 65C-22.008(3), discussed below, it may qualify for an exemption from child care licensure under that rule.

    
    

    Pursuant to rule 65C-22.008(3), a program is not required to obtain a child care facility license, provided the program complies with the minimum background screening requirements of sections 402.305 and 402.3055, and if the program demonstrates that it meets the conditions for one of the following exemptions, addressed in paragraphs (a) through (e):

    
    

    1. Programs on School Sites.

       
       

       * * *

       
       

    2. Instruction/Tutorial Programs. The program . . . has a single instructional/tutorial purpose and that purpose is the only service that the program provides. Some examples of these programs include, but are not limited to, tutoring; a

       
       

       computer class; a ballet class; a karate class; baseball instruction or other sport; the program cannot provide any service beyond the instructional and tutorial/academic activity; and:

       
       

       1. Does not cater, serve or prepare meals. The program may choose to provide drinks and ready-to-eat snacks that are individually pre-packaged and do not require refrigeration.

          
          

       2. Does not advertise or otherwise represent that the program has attributes of child care, as defined in Section 402.302(1), F.S.

          
          

       3. Enrollment information shall clearly define the duration of the instructional sessions. Session time may not exceed two hours. If tutoring is provided in multiple academic areas, the total combined session times cannot exceed three hours per day.

       
       

       * * *

       
       

    3. Open Access Programs.

       
       

       * * *

       
       

    4. Any program that is not designated as a Gold Seal Quality Care provider and is providing care for school aged children that is operated by, or in affiliation with a national membership non-profit or not for profit organization.

       
       

       * * *

       
       

    5. The program . . . provides child care exclusively for children in grades six and above.

Fla. Admin. Code R. 65C-22.008(3) (emphasis added).

COPIES FURNISHED:

Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

Stephanie Camfield, Esquire Department of Children and Families 1317 Winewood Boulevard, Building 2

Tallahassee, Florida 32399-0700 (eServed)

John Jackson, General Counsel Department of Children and Families Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

Chad Poppell, Secretary

Department of Children and Families Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Calvin Paquette

YouthFit by BodyZone Fitness 2740 North Roosevelt Boulevard Key West, Florida 33040

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.

Docket for Case No: 18-004680

Orders for Case No: 18-004680