The Issue 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.
Findings Of Fact On December 5, 2017, Petitioner entered into a fitness membership contract with Respondent’s facility located at 830 A1A North in Ponte Vedra Beach, Florida (the facility). She paid the contract in full in the amount of $850.94. The contract was a 24-month membership ending December 5, 2019. However, when Petitioner enrolled, she received three additional months free. Thus, the contract term ends on March 5, 2020. Respondent is the owner and operator of the facility. 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 “being honored at Baileys Health and Fitness: 1352 Beach Blvd. for the next 30 days.” Petitioner’s contract with Respondent reads, in pertinent part, as follows: This contract may be cancelled if the contracting business location 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 the business location designated in such contract at no additional cost to the buyer. Petitioner submitted evidence to document that Bailey’s Fitness is located more than five driving miles from her home address. However, pursuant to the contract, Respondent’s duty to reimburse Petitioner is triggered if Respondent “fails to provide similar facilities . . . located within five (5) driving miles from the business location designated in such contract.” (emphasis added). The business location designated in the contract is the location of the facility, not Petitioner’s home address. The record contains no evidence to support a finding that Bailey’s is located more than five driving miles from the facility.1/ 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. The evidence demonstrates that Petitioner attempted to cancel the contract and pursue a refund by notifying Respondent of her request for refund in writing, pursuant to the terms of the agreement. Petitioner’s written request was returned as unclaimed and unable to be forwarded. The evidence does not support a finding that Respondent violated the terms of contract such that Petitioner is due a refund.2/
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 dismissing 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 11th day of January, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN 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 Administrative Hearings this 11th day of January, 2019.
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a three-count Administrative Complaint. The Respondent is charged with having violated the following statutory provisions: Sections 458.331(1)(k), 458.331(1)(m), and 458.331(1)(n), Florida Statutes.
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME 0059304. The Respondent is an experienced physician, having practiced medicine in several jurisdictions over a period of approximately 24 years. The Respondent is a native of Uruguay, where he studied medicine and graduated from medical school in 1974. English is the Respondent's second language. The Respondent began his private medical practice in the State of Florida in 1990. From January of 1992 until February 3, 1993, the Respondent treated patients C. P. and F. P.2 on several occasions. Patient C. P. was approximately 90 years old. His wife, patient F. P., was approximately 80 years old. At all times material, patients C. P. and F. P. were Medicare recipients. On January 12, 1993, the patient C. P. appeared at the Respondent's medical office for examination and treatment. On that day the patient C. P. had a number of complaints and concerns. The Respondent interviewed the patient, and obtained a history from the patient that included the fact that the patient had been hospitalized approximately six months earlier for injuries incurred in an automobile accident. The Respondent also examined the patient. Based on the examination of the patient and on the history obtained from the patient, the Respondent concluded that the patient C. P. needed to have some further testing of his heart rhythm. The Respondent ordered a series of tests which were to be performed with a portable Cardiotrace monitor. A total of five such tests were performed. One of the Cardiotrace tests was performed in the Respondent's office. The other four were performed at patient C. P.'s home by a technician employed by and trained by the Respondent. The Cardiotrace monitor equipment transmitted heart rhythm information by telephone line directly to equipment that prepared a tracing of the heart rhythm. A copy of the rhythm tracing was then transmitted to the Respondent by fax transmission. Five such rhythm tracings regarding the patient C. P. were received by the Respondent. The Respondent reviewed and interpreted each of the rhythm tracings. Subsequently, the Respondent billed Medicare for his review and interpretation of each of the five rhythm tracings regarding the patient C. P. The services for which the Respondent billed Medicare in this regard were services that were actually performed.3 Based on the examination of the patient and on the history obtained from the patient on January 12, 1993, the Respondent concluded that the patient C. P. also needed some physical therapy. The Respondent referred the patient C. P. for physical therapy services at the Respondent's medical office. The Respondent prepared a physical therapy plan for the patient C. P. The plan provided for the patient to initially receive physical therapy three days per week for three weeks. The plan also provided for the patient to receive six modalities of physical therapy on each treatment day. The Respondent billed Medicare for providing physical therapy to patient C. P. on January 12, 14, 16, 19, 21, 26, 28, and on February 1 and 3, 1993. For each of these physical therapy sessions, the Respondent billed Medicare for six modalities of physical therapy. These modalities included hot or cold pack therapy, therapeutic exercises for thirty minutes, functional activity therapy, ultrasound therapy, massage therapy, and kinetic therapy. The Respondent had two separate rooms in his office dedicated to and equipped for physical therapy. The Respondent had equipment in his physical therapy rooms for all six modalities of physical therapy ordered for the patient C. P. During the time when the Respondent was treating the patient C. P., it was the Respondent's practice to keep separate medical records and physical therapy records for patients who were receiving physical therapy at his medical office. The physical therapy records were kept on forms the Respondent had designed for that purpose. It was also the Respondent's practice at that time to keep the separate records in separate places. The Respondent has not been able to locate any records of any physical therapy services that were provided to the patient C. P. The Respondent's medical records for the patient C. P. contain only two references to the physical therapy. On January 12, 1993, there is a brief note to refer the patient to the physical therapy department. On February 3, 1993, there is a note to continue physical therapy. There are no other notes specifically referring to the status of or the justification for the physical therapy. Although the patient C. P. sustained injuries in a motor vehicle accident in July of 1992 which caused him to be hospitalized for several days, the Respondent's medical records contain no mention of that accident. The Respondent's records regarding his care and treatment of the patient C. P. are sufficient to justify the testing of the patient's heart rhythm, which was accomplished by means of the Cardiotrace portable monitor. The Respondent's records regarding his care and treatment of the patient C. P. are not sufficient to justify the physical therapy which was ordered by the Respondent.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case to the following effect: Dismissing Count One and Count Three of the Administrative Complaint on the basis of insufficient evidence, Concluding that the Respondent has violated section 458.331(1)(m), Florida Statutes, a charged in Count Two of the Administrative Complaint, by his failure to keep written medical records justifying the physical therapy for the patient C. P., and, Imposing a penalty for the violation of Section 458.331(1)(m), Florida Statutes, consisting of an administrative fine in the amount of $2,500.00 and a letter of reprimand. DONE AND ENTERED this 25th day of January, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1999.
Findings Of Fact Respondent, Miami Fitness, Inc. (Miami Fitness), advised Petitioner, the Department of Agriculture and Consumer Services (Department), by letter dated October 30, 1993, that Miami had purchased the assets of Body Mystique, a health studio, and would honor all of its memberships. Miami Fitness was to begin operations as of November 1, 1994. Miami Fitness registered with the Department as a health studio and posted an irrevocable standby letter of credit for $50,000. The letter of credit was amended on July 26, 1994, to extend the expiration date to October 29, 1995. The purpose of the letter of credit is to protect the members of the health studio. Money would be available to compensate members if Miami Fitness went out of business or the members' contracts were not assigned to a facility of equal quality within a five mile radius of Miami Fitness. Refunds would be made on a pro rata basis. Body Mystique had been a women's only health studio as was it predecessor My Fair Lady. At one time Body Mystique had requested permission from the Department to turn the all women's facility into a coed health studio, but the Department denied the request. When Miami Fitness purchased Body Mystique, it continued to operate the facility as an all women health studio. The facilities occupied by Miami Fitness had been an all women's health studio for 23 years. Miami Fitness advertised and promoted the health studio as the "total fitness studio for women." It also advertised that its weight room was for women by stating: "Our weight training area is unique in that it is specifically designed for women." Miami also promoted its wet area. One advertisement stated: "We have all the amenities that a woman needs: sauna, steamroom, eucalyptus room, showers, dressing area; and great aerobic classes on a suspended wood floor, with a fully equipped weight room and cardiovascular area specifically designed for women." The contracts between Miami Fitness and its members included a provision that the member may cancel and receive a refund if Miami Fitness closes and does not provide the member with "similar facilities of equal quality" within a five mile radius of the closed facility. On February 10, 1995, Joe Alexionok, a consumer services consultant with the Department, was notified that Miami Fitness had closed its doors. By letter dated February 26, 1995, Mr. Alexionok requested Miami Fitness to advise the Department whether Miami Fitness was going to provide services or make pro- rata refunds. By letter dated March 10, 1995, Patty Kinast, President of Miami Fitness, notified the Department that Miami Fitness had made an agreement with U.S. 1 Fitness to assume Miami Fitness memberships. Having determined that U.S. 1 Fitness was not a facility of equal quality, the Department sent certified letters to the bank holding the letter of credit and to Patty Kinast that the Department would make a demand upon the letter of credit to refund members who filed a complaint against Miami Fitness because U.S. 1 Fitness was not of equal quality. A notice was also published in the Miami Post advising that anyone having a claim against Miami Fitness must file the claim with the Department by September 30, 1995. U.S. 1 Fitness is a coed health studio which is located within a five mile radius of Miami Fitness. U.S. 1 Fitness does not have a sauna, steamroom or eucalyptus room. U.S. 1 Fitness has approximately 2,500 members with approximately 900 active members. Miami Fitness had a membership of about 1,000 with approximately 400 members who were active. U.S. 1 Fitness' facility has approximately 11,000 square feet. Miami Fitness' facility had approximately 4,600 square feet. Miami Fitness was open during the following hours: Monday and Tuesday, 7:00 a.m. - 9:30 p.m.; Wednesday-Friday, 7:00 a.m - 9:00 p.m.; Saturday, 9:00 a.m. - 5:00 a.m.; and Sunday 10:00 a.m. - 5:00 p.m. U.S. 1 Fitness is open during the following hours: Monday-Friday, 5:00 a.m. - 11:00 p.m. and Saturday and Sunday, 7:00 a.m. - 8:00 p.m. U.S. 1 Fitness offers 38 exercise-type classes each week, including a yoga class on Tuesday and Thursday mornings. Miami Fitness offered 32 exercise- type classes each week with a yoga class on Tuesday and Thursday mornings and on Wednesday evening. The yoga classes at U.S. 1 Fitness are taught by the same instructor who taught morning yoga classes at Miami Fitness. U.S. 1 Fitness has exercise classes which are equal in quality to those provided by Miami Fitness. As part of the agreement with U.S. 1 Fitness, Miami Fitness transferred some of its equipment to U.S. 1 Fitness. U.S. 1 has equipment which is newer than the Miami Fitness' equipment. U.S. 1 Fitness has as good or better equipment than Miami Fitness did. U.S. 1 Fitness has babysitting services as did Miami Fitness. U.S. 1 Fitness' babysitting services are as good as or better than the babysitting services at Miami Fitness. U.S. 1 Fitness is located in well-lighted shopping center area and has as good or better security as Miami Fitness. After Miami Fitness closed, the Department received 12 written complaints from Miami Fitness members. The majority of the complaints were based on a lack of wet facilities at U.S. 1 Fitness and U.S. 1 Fitness not being an all women's facility. Most of the complainants had joined Miami Fitness because it was a women's only facility. They felt uncomfortable and self conscious exercising in a coed facility. They liked the facility because it was small, not crowded, and had a friendly, intimate atmosphere. At least two of the complainants had visited U.S. 1 Fitness before signing up with Miami Fitness and preferred Miami Fitness over U.S. 1 Fitness. While Miami Fitness was operating, between 25 and 50 members regularly used the wet facilities each week. U.S. Fitness 1 is not a facility of equal quality to Miami Fitness as it relates to the wet area and the membership being exclusively women.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Miami Fitness, Inc. did not provide its members with a facility of equal quality and that the twelve written claims made by the members of Miami Fitness, Inc., because it was not a facility of equal quality be certified as valid claims against the irrevocable standby letter of credit given to the Department of Agriculture and Consumer Services by Miami Fitness, Inc., and that any written claims filed on or before September 30, 1995 by members on the basis their contracts were not assigned to a facility of equal quality be certified as valid claims against the irrevocable standby letter of credit. DONE AND ENTERED this 25th day of September, 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 25th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2964 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. Paragraphs 1-14: Accepted in substance. Paragraph 15: Rejected as unnecessary detail. Paragraphs 16-21: Accepted in substance. Paragraph 22: The first, fifth, sixth, seventh, ninth, and eleventh sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 23: The first, fourth, and sixth sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 24: The first, fourth, fifth and sixth sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 25: The first, second, third, sixth, and eleventh sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 26: Rejected as unnecessary. Paragraph 27: Accepted in substance. Paragraph 28: The first, third, sixth, and seventh sentences are accepted in substance. The eighth sentence is rejected as not supported by the greater weight of the evidence. The remaining is rejected as unnecessary detail. Paragraph 29: The first, third, fourth, fifth, seventh, eighth, and fourteenth sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 30: The first and third sentences are accepted in substance. The second sentence is rejected as unnecessary detail. Paragraph 31: Accepted in substance. Paragraph 32: The first and third sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 33: The last sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 34: Rejected as unnecessary. Paragraph 35: Accepted in substance. Paragraph 36: The fourth sentence is accepted in substance. The remaining is rejected as unnecessary detail. Paragraphs 37-40: Rejected as subordinate to the facts found. Paragraph 41: The third, fourth, eighth, ninth and tenth sentences are accepted in substance. The fifth sentence is accepted in substance as it relates to equipment and number of classes but not as to atmosphere. The remainder is rejected as unnecessary. Paragraphs 42-43: Rejected as unnecessary. Paragraph 44: The fifth sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 45: The first, fourth, sixth, seventh, eighth, eleventh, and twelfth sentences are accepted in substance. The ninth sentence is rejected as it relates to those women who filed complaints because U.S. 1 Fitness was coed. The remainder is rejected as unnecessary detail. Paragraph 46: Rejected that the facilities were comparable. Paragraph 47: Accepted in substance except U.S. 1 Fitness had 38 classes. 26. Paragraph 48: Accepted in substance. Respondent's Proposed Findings of Fact. Paragraphs 1-14: Accepted in substance. Paragraph 15: The first sentence is accepted. The second sentence is rejected to the extent that it implies that the wet facility at Miami Fitness was not a reason for choosing Miami Fitness and was not used or enjoyed by it members. Paragraphs 16-17: Accepted in substance. Paragraph 18: Rejected as subordinate to the facts found. COPIES FURNISHED: Lawrence J. Davis, Esquire Office of the General Counsel Florida Department of Agriculture & Consumer Services The Capital, Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Lloyd B. Silverman, Esquire 2800 West Oakland Park Boulevard, Suite 201 Oakland Park, Florida 33311 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
Findings Of Fact Goodman holds Florida teaching certificate number 295031, post-graduate rank III, valid through June 30, 1983 covering the areas of physical education and junior college. At all times pertinent hereto, Goodman was employed in the public schools of Duval County, Florida, at Matthew Gilbert Seventh Grade Center as a physical education teacher. During the summer school session of 1978, at Matthew Gilbert, Goodman was assigned as teacher for the physical education class to be held during that session. The class was funded through the Full-Time Equivalent (FTE) program. In order to maintain the allocation of FTE funds, there was a requirement that a minimum number of 28 physical education students be enrolled and in attendance. In the event the required enrollment was not met, then the class could not be held. If that occurred, the teacher would receive no salary for the summer session relating to that course. Goodman prepared a student attendance register for the summer school of 1978 physical education class beginning June 16, 1978, and ending July 28, 1979. That register reflects 28 enrolled students in the course. Goodman also prepared two summer school class enrollment sheets for FTE reporting purposes. The first is dated June 29, 1978, and shows 28 students enrolled in physical education. The second is dated July 10, 1978, and reflects 27 full-time students enrolled in physical education. Notwithstanding these enrollment sheets, actual student enrollment and attendance was far below that which was reported by Goodman. Jacquelyn Merritt enrolled in the summer school physical education course but never attended. Nonetheless, the attendance register shows Ms. Merritt as having attended 28 days. Ms. Merritt was awarded the grade of "B" for the course. Lorretta Roundtree neither enrolled nor attended physical education class. Nonetheless, the attendance register reflects 30 days attendance and Ms. Roundtree received a grade of "A" for the physical education course. Patricia Willis never attended the physical education class although she did enroll. The student attendance register reflects that Ms. Willis attended 30 days and received a grade of "B" for the physical education course. Cimmie McBride attended the physical education class for about a week. However, the class attendance register reflects 30 days attendance for Ms. McBride and she ultimately received a grade of "A" for the physical education course. Shelia Jackson attended one day of physical education during the summer school session but the student attendance register reflects 28 days attendance. Ms. Jackson received a grade of "B" for the physical education course. Carla Todd did not enroll in nor attend the summer school physical education class but the student attendance register shows Carla Todd being present for 30 days. Ms. Todd received a grade of "A" for the physical education class. Raymond Riley did not attend the summer school but the student attendance register reflects 28 days attendance and Mr. Riley received a grade of "B" for the physical education course. Steve Simon never attended summer school but the student attendance register reflects 29 days attendance and Mr. Simon received a grade of "B" for the physical education course. Deidra Sampson enrolled in the physical education course for the summer school session and attended three or four days. However the student attendance register reflects 30 days attendance and Ms. Sampson was awarded a grade of "A" for the physical education course. Claudia Tyson never enrolled in nor attended physical education during the summer school session hut the student attendance register reflects 28 days of attendance and Ms. Tyson received a grade of "B" for the physical education course. Martin Vaughn attended one day of physical education during the summer school session but the student attendance register reflects 30 days of attendance. Mr. Vaughn received a grade of "B" for the physical education class. Sharon Williams enrolled in the physical education course but never attended any classes. Nonetheless, the student attendance register reflects 30 days attendance and Ms. Williams received a grade of "A" for the physical education course. Hellen Pinkney enrolled in the physical education course for the summer school session but never attended. Nonetheless, the student attendance register reflects 30 days attendance and Ms. Pinkney received a grade of "A" for the physical education class. Willie Ward attended the physical education class during summer school for approximately one week. The student attendance register reflects 29 days attendance and Mr. Ward received a grade of "B" for the physical education class. It was Goodman's responsibility to prepare the student attendance registers and grade reporting forms for her class. The evidence establishes that Goodman's signature appears on those forms which reflect inaccurate attendance data and the award of undeserved grades. Goodman signed her name to official reports that were patently incorrect. If the reports had been submitted correctly then FTE funds would have been terminated for the physical education class. Had the class been cancelled, Goodman would not have received remuneration for her services as a physical education instructor during that summer session of school. The evidence does not establish Goodman's motivation as being that of protecting her income or insuring that the course was made available to those students who did attend. Goodman's efficiency ratings reflect that she is an otherwise effective teacher.
The Issue The issue presented for decision herein is whether or not Respondent's license as a Physical Therapist should be suspended or revoked or the licensee otherwise disciplined for alleged violations of Chapter 486, Florida Statutes, as is more particularly set forth hereinafter and which is contained in a Second Amended Administrative Complaint filed December 12, 1986.
Findings Of Fact Respondent, Steven R. Bernstein, is and at all times material, was a licensed physical therapist having been issued license number PT 0002304. (Stipulation) Respondent maintained two separate offices in Fort Lauderdale: 4580 North State Road 7, Suite K, and 2951 Northwest 49th Avenue, Suite 308. (Stipulation) From March 1981 to March 1983, Respondent employed Kathy Schillace as an aide at both of his offices. At no time was Schillace licensed as a physical therapist or a physical therapist assistant. (Stipulation) Schillace's duties included giving treatments to patients such as electrical stimulation, range of motion exercises and ultrasound. To perform these duties, Schillace reviewed patient charts and determined what procedures were needed based on notations which had been recorded by Respondent or one of his licensed physical therapists employed in one of the two offices. Schillace received on the job training from Respondent and Susan Trider, a licensed physical therapist, on how to operate the equipment. Susan Trider supervised Schillace during most of her employment with Respondent. Susan Trider worked for Respondent from November 16, 1981 thru June 21, 1982. Trider was licensed in Florida by endorsement on June 3, 1982. Trider was licensed in Massachusetts in April 1980. (Petitioner's Exhibit 4) From April 1982 to May 1983, Respondent employed Patricia Sears as an aide at both of his offices. At no time was Sears licensed as a physical therapist or a physical therapist assistant. (Stipulation) Sears routinely performed treatments on patients with electrical stimulation, range of motion and ultrasound exercises. Although Sears felt that she did not receive adequate training to do the treatments she performed for patients, it is found that Sears received adequate training and there were ample licensed supervisory personnel on hand to answer any inquires or provide the needed assistance. As example, it is alleged that based on the inadequate training and lack of supervision that Sears received, she burned a patient with the electrical stimulation machine. Upon review of the testimony concerning that incident, it is found that Sears was working under the supervision of an employee of Respondent, Paula Allia, a licensed physical therapist. (Petitioner's Exhibit 1, pages 12, lines 21-25; page 13 lines 1-4). Respondent had a policy of requiring licensed physical therapists to be on the premises at all times while aides were administering treatment to patients. The training included reviewing contra-indications, the indications, what procedures the equipment was capable of doing, reviewing the operating manuals and explaining the various equipment including hands-on training by licensed personnel. (TR 76-77) Prior to administering any procedures to patients, the aides were given a training exam and they had to demonstrate their abilities by passing the exam and by providing treatment to the licensed personnel. Respondent endeavors to insure that the aides were adequately trained by duplicating the training program that he received while in school to become licensed. (TR 77, lines 23-25) After they were trained, the typical case would be that the aides would only perform procedures diagnosed by a licensed physical therapist. While performing the procedures, licensed therapists were on the premises throughout the period during which the procedures were being administered. (TR 78-79) The procedures that were performed by the aides were procedures ordered by private physicians and all patients of Respondent's were referred from private physicians. Respondent constantly checked the administration of procedures by licensed personnel. (Testimony of Fran Wade, TR 97-98. Testimony of Susan Trider, TR 104) During times material herein, the procedures that Respondent's aides performed were the typical procedures engaged in by aides at other hospitals and private physical therapists in South Florida. (Testimony of Todd Williams, (TR 116-117) Respondent's offices were small and it was possible to hear communications between the patients, aides and the licensed physical therapist constantly monitored the treatment modalities administered by the aides. (Testimony of Respondent, R 92) In the opinion of Paul Hughes, an expert physical therapist, a physical therapist actively involved in the treatment or who is in the immediate area to provide supervision to an aide, is engaged in an acceptable practice in Florida. (TR 39) The testimony of other licensed physical therapists herein support Respondent's position that the treatment modalities that Respondent allowed his aides to administer were the type modalities which were considered acceptable by the local community. (Testimony of Diane Siweck, Sue Chestnut, Todd Williams and Fran Wade).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 29th day of June 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of June 1987. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Hubert, Esquire Paragon Center Suite 512 2400 East Commercial Boulevard Fort Lauderdale, Florida 33308 Dorothy Faircloth, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Wings T. Benton, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner is entitled to an award of attorney's fees pursuant to Section 57.111, Florida Statutes, and, if that be the case what amount of attorney's fees as well as costs is appropriate.
Findings Of Fact The Petitioner was charged by the Administrative Complaint in the underlying case with violating the Florida Statutes referenced below by transferring its business license without informing the Board and for employing a massage therapist who was unlicensed. These charges arose because of an inspection made by an Agency investigator Edward W. Vollerston, in March of 1997. Mr. Vollerston discovered that the license for the establishment had been renewed but the only therapist working at the establishment was Roger Twitchell, the Petitioner's son. Mr. Twitchell was discovered to have had an expired personal license. Roger Twitchell admitted working as a massage therapist at the establishment and that he was currently taking appointments. He admitted to the investigator that he was the only licensee working on the premises. The Petitioner's owner, Donna Anderson-Twitchell admitted that she left the establishment and allowed Roger Twitchell to see patients at the Muscle Therapy Clinic. Roger Twitchell was the only massage therapist practicing on the premises known as the Muscle Therapy Clinic. Mr. Vollerston believed as a result of his investigation that the owner was Donna Anderson-Twitchell and that Roger Twitchell did not own the establishment. The establishment license appears to have been renewed without any indication of a change in ownership. The microfilm copy of the check and the renewal slip showed no indication of changes of ownership on either document, although the check for the renewal was written by Roger Twitchell. It is impossible to determine whether he wrote the check as a new owner or whether he wrote the check on behalf of Donna Anderson-Twitchell as the owner. The fact that the establishment license was renewed showed an intention to Mr. Vollerston that the establishment was to be continued under the name of Donna Anderson-Twitchell and raised no question in his mind as to a change of ownership. There is no indication that Ms. Anderson-Twitchell let her license lapse. Indeed the licensure computer screen maintained by the Department during the investigation indicated that Donna Anderson-Twitchell was still the owner of the establishment. Even after the investigation began there was no indication that an establishment license in the name of Roger Twitchell as owner had been applied for. Later Donna Anderson-Twitchell stated that she no longer owned the establishment and that Roger Twitchell her son owned it. In any event, the documentation available to him led the investigator to believe that Ms. Anderson-Twitchell was still the owner of the Muscle Therapy Clinic. He believed that Roger Twitchell was working there as an unlicensed therapist and was the only therapist working there. The case was later transferred from the investigation office to the legal department. Susan Bodell, Esquire, reviewed the case and observed that there had been a closing order drafted by Laura Gaffney, Esquire, her predecessor, to be presented to the probable cause panel. Ms. Bodell differed with that position, however, and believed a violation had occurred and therefore caused an administrative complaint to be drafted. Ms. Bodell found, based partly on the investigative file, that it appeared that ownership had been transferred to another person without the Board of Massage being notified in purported violation of Section 480.043(7), Florida Statutes, as well as that the establishment appeared to be employing a person as a massage therapist who had no active license, in purported violation of Section 480.047(1)(c), Florida Statutes. Ms. Bodell took that case and facts as she knew them to the probable cause panel and explained the situation. The probable cause panel agreed with her and adopted the proposed administrative complaint rather than the previously prepared closing order prepared by Ms. Gaffney. The probable cause panel chairman signed a memorandum which indicated that probable cause had been found for both counts in the Administrative Complaint. After the finding of probable cause an Administrative Complaint was served on the Muscle Therapy Clinic. During the process of the that litigation, counsel for the Agency offered to settle the case. Ms. Alsobrook, the Petitioner's counsel wrote a letter dated September 4, 1998, offering to waive any claim to attorney's fees and costs if the case was dismissed by the Board of Massage Therapy and from the Division of Administrative Hearings. The Agency indeed closed the case as a result of those settlement discussions. The Petitioner now claims that because the final order of dismissal was not obtained within a two-week period, that there was no agreement to waive attorney's fees and therefore the Petitioner is now able to claim attorney's fees and costs in this proceeding. Be that as it may, after the case against Muscle Therapy Clinic, the underlying case was dismissed, the Petitioner filed the subject attorney's fee petition. Mr. Jim Spalla, the Respondent's expert on attorney's fees is qualified to testify to attorney's fees matters. He opines that Ms. Alsobrook's hourly rate of $150 an hour is reasonable. He assumed that she charged that rate per hour and not something lower because he had no retainer agreement to evaluate. He did opine that her fees were excessive in billing for research to litigate a motion filed by the Respondent in September of 1999. The Petitioner's counsel almost billed more for that motion in the month of September 1999, than she did for the total underlying case. The Petitioner's counsel did not allow Mr. Spalla to review her file to see if it corresponded to her billing and thus he used the Agency's file to determine what pleadings had been filed in the case. The Petitioner's attorney's fee expert, Jon Pellett, Esquire, testified that the fees were reasonable although he did not review the entire file either. He based his opinion on selected pleadings sent to him by Ms. Alsobrook. He saw no retainer agreement concerning the $150 per hour rate. He saw no copies of cancelled checks. Ms. Anderson-Twitchell was under a subpoena to bring all documentation concerning the case but did not bring any cancelled checks or bank statements showing payment to the hearing. It is found based upon the testimony of both attorney's fee experts that the hourly rate is a reasonable one. The undersigned, however, cannot understand how the total figure for fees and costs in excess of $20,000 can be reasonable given the very simple nature of the issues presented in the underlying disciplinary case and in this attorney's fee petition case (assuming that attorney's fees may be claimed for the attorney services and costs involved in litigating the attorney's fees claim). The rather summary nature of the documentary support for the attorney's fees and costs claimed and the testimony of Mr. Spalla, do not provide the undersigned with a sufficient understanding of a reasonable basis for the fees and costs claimed in such simple litigation engenders substantial doubt as to the reasonableness thereof. In any event, because of the result concluded below as to the issue of "substantial justification" the resolution of the question of the reasonableness of attorney's fees and costs need not be reached.
The Issue The issue in this case is whether Respondent should grant Petitioner's request for licensure by endorsement as a physical therapist pursuant to Sections 486.031 or 486.081, Florida Statutes (1997), and Florida Administrative Code Rule 64B17- (All statutory references are to Florida Statutes (1997) unless otherwise stated. All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact It is uncontroverted that Petitioner is 48 years old and of good moral character within the meaning of Section 486.031(1) and (2). Petitioner has been a resident of Florida for 34 years. He is licensed in Florida as a chiropractor and is a graduate of a four-year degree program at Palmer College of Chiropractic ("Palmer College"). Petitioner is board certified as a chiropractor orthopedist and as a chiropractic neurologist. Both board certifications required additional training after graduation from Palmer College. In June 1995, Petitioner attended the University of Health Sciences Antigua School of Allied Health Professionals and received a Bachelor of Science in Physical Therapy from that institution in August 1996. Petitioner traveled to the University of Antigua eight times in two years for education sessions. Each session lasted approximately two weeks. In addition to the hours Petitioner spent at the University of Antigua, Petitioner spent approximately 1,200 hours during an eight-month period at a physical therapy facility associated with the hospital in Antigua. In addition, Petitioner spent approximately 650 hours interning at the Spinal Rehabilitation Institute in Titusville, Florida. The University of Antigua required Petitioner to complete the 1,200 hours at the physical therapy facility and the 650 hours as an intern as part of its educational program. After obtaining a degree in physical therapy from the University of Antigua, Petitioner applied to the State of Colorado to take an examination prepared under the auspices of Profession Examination Services ("PES"). Colorado evaluated Petitioner's education and allowed Petitioner to take the PES exam. Petitioner passed the PES exam and has been licensed as a physical therapist in Colorado since April 11, 1997. On February 9, 1999, Petitioner applied to the State of Florida for a license as a physical therapist. Petitioner received and relied upon application materials provided by Respondent. In particular, Petitioner utilized Respondent's "List of Currently Qualified Credentialing Agencies" to select the International Education Research Foundation (the "Foundation") to evaluate Petitioner's foreign education. The Foundation is the appropriate agency identified by the Board, within the meaning of Section 486.031(3)(b), to determine whether Petitioner has educational credentials equivalent to those required for the educational preparation of physical therapists in the United States. The Foundation gave Petitioner credit for 60 semester hours of physical therapy education including six clinical hours. The Foundation determined that Petitioner has the U.S. equivalent of a Bachelor of Science in Physical Therapy (non-traditional program awarded by nonaccredited colleges and universities). The Foundation prepared its evaluation: . . . in accordance with guidelines developed by several state licensing boards and was completed in close collaboration with a physical therapy consultant. Records from the institution attended showing coursework completed, hours of study and grades earned, were used as the basis for this report. Joint Exhibit 1 at 399. The Board denied Petitioner's application for the following reasons: The applicant does not meet the requirements of Sections 486.031(3)(b) or 486.081(1) . . . and Rules 64B17-3.001(3) and (4) or 64B17- 3.003 . . . in that the applicant does not possess credentials that are deemed equivalent to a bachelor's degree in physical therapy in the United States. At best the applicant's training is a six week lecture series that would constitute a continuing education course. It is not the length and content of a CAPTE approved bachelors or masters in science program in physical therapy that would be the bulk of the final year of training. Denial Order at 1. The actual basis for Respondent's denial has little to do with factual disputes concerning Petitioner's educational hours. As Respondent admits in its PRO: While there may be some factual disputes about Petitioner's educational hours, both in modules and clinical time, these are not really material facts for the [ALJ] to resolve. The real issue is the legal interpretation of . . . Sections 486.031 and 486.081. . . . Respondent's PRO at 5. The findings in paragraphs 12-15 of Respondent's PRO are not material to the real issue concerning the interpretation of Sections 486.031 and 486.081. Respondent does not approve the physical therapy program at the University of Antigua for the educational preparation of physical therapists within the meaning of Section 486.031(3)(a). The record does not show whether the United States Department of Education approves the program. Petitioner has received a diploma from a program in a foreign country within the meaning of Section 486.031(3)(b). The Foundation, as the appropriate agency identified by the Board, has determined that Petitioner possesses educational credentials required for the educational preparation of physical therapists in this country. Petitioner passed the Colorado PES exam in 1997. Petitioner passed a national examination approved by the Board to determine Petitioner's fitness to practice as a physical therapist within the meaning of Section 486.031(3)(a) and (b). Petitioner is entitled to licensure in Florida without examination, pursuant to Section 486.031(3)(c), as provided in Section 486.081. Petitioner passed the PES exam in 1997. The written examination taken by Petitioner for licensure in Colorado was an examination prepared under the auspices of the Professional Examination Services within the meaning of Rule 64B17-3.003. Respondent has long construed applicable Florida Statutes to require an applicant for licensure without examination to pass the requisite national examination and to meet those educational requirements approved by the Commission on Accreditation for Physical Therapy ("CAPTE") in accordance with the requirements of Section 486.031(3)(a). Respondent's legal interpretation of applicable statutes and rules is a legal interpretation rather than a matter within the ambit of agency expertise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's request for a license in Florida as a physical therapist pursuant to Sections 486.031(3)(b), 486.031(3)(c), and 486.081. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2000. COPIES FURNISHED: Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health Division of Medical Quality Assurance Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 William Large, General Counsel Department of Health Bin A02 2020 Capitol Circle, Southeast Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Ann Cocheu, Esquire Office of the Attorney General Administrative Law Section The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Wilson Jerry Foster, Esquire 1342 Timberlane Road, Suite 101A Tallahassee, Florida 32312-1775
The Issue The issue in this case is whether Ms. Nalda, a foreign trained applicant for licensure as a physical therapist by examination, has proven that she is eligible to sit for the licensure examination required by Section 486.031(3)(b), Florida Statutes (1935). In its preliminary action, the Board had indicated that Ms. Nalda has not presented evidence of educational credentials which are "deemed equivalent to a bachelor's degree in physical therapy in the United States" as required by Rule 21M-7.020, Florida Administrative Code (1966).
Findings Of Fact Ms. Nalda received her educational preparation in physical therapy in Bogota, Colombia. When she submitted her application for licensure by examination as a physical therapist, she also submitted an evaluation of her educational preparation in physical therapy performed by the International Education Research Foundation, Inc., dated December 5, 1983. It states in pertinent part: The Diploma is recognized as equivalent to a valid bachelor's degree in the United States. When Petitioner was first certified for examination by the Physical Therapy Council, the Council had misunderstood the meaning of the letters of evaluation it received from the International Education Research Foundation, Inc., such as the one quoted above. The letter did not state that the educational preparation under review was equivalent to a valid bachelor's degree in physical therapy in the United States, but the Council treated it that way. Due to this misunderstanding, the Council permitted Ms. Nalda to sit for the physical therapy examination three times, each of which she failed. The fourth time she applied for examination, she was denied the opportunity to be examined because the Council realized her educational credentials were not deemed equivalent to a valid bachelor's degree in physical therapy in the United States. Ms. Nalda requested a second evaluation from International Education Research Foundation, Inc., as well as an evaluation from another agency, International Consultants of Delaware, Inc. The Physical Therapy Council reviewed both of them. Neither evaluation deemed Petitioner's credentials to be equivalent to a valid bachelor's degree in physical therapy in the United States, and both identified specific deficiencies in her educational preparation. The September 24, 1986 evaluation of International Consultants of Delaware, Inc., states that Ms. Nalda lacks ten semester credits in humanities and two semester credits in natural sciences. A transcript from Miami Dade Community College dated May 6, 1967 (admitted into evidence without objection), shows that Ms. Nalda has completed three semester hours in English writing, twelve semester hours in elementary and intermediate Spanish, and three hours in general education biology. Ms. Nalda experienced significant delays in receiving communications from the office of the Physical Therapy Council, which caused her to make numerous telephone calls to the office to determine the status of her applications. Ultimately, she engaged an attorney to assist her in the licensure process. During the period from the date of her first application for licensure through the date of the hearing, Ms. Nalda submitted at least four applications for licensure. Those documents hear different last names and at least four different addresses. At no time did Ms. Nalda notify the Board that she had changed her address. The applications were treated as separate applications from different people. Although there were valid reasons for the different names appearing on Ms. Nalda's applications, due to her divorce and remarriage, the various forms of her name, the number of applications and the many addresses contributed to confusion on the part of the Board of Medical Examiners, Physical Therapy Council, and accounts for the difficulty she encountered in determining the status of her applications.
Recommendation It is RECOMMENDED that the licensure application of Myriam Nalda to sit for the licensure examination be GRANTED. DONE AND ORDERED this 17th day of July, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-2966 The following constitute my rulings on the proposed findings of the parties as required by Section 120.59(2), Florida Statutes (1985). Rulings on Proposed Findings of Fact Submitted by Petitioner The Petitioner's proposal is in narrative form, not in the form of Proposed Findings of Fact. I have generally accepted the proposals that evaluations of Ms. Nalda's educational credentials have been performed by the agencies identified in Rule 21M-7.020(3)(a) and (b), and that she has completed course work prescribed by an evaluation agency to render her degree equivalent to a bachelor's degree in physical therapy. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 1. Covered in Findings of Fact 1 and 2. Covered in Finding of Fact 2. Covered in Finding of Fact 3. Covered in Finding of Fact 4. Rejected as unnecessary. Covered in Finding of Fact 6. Covered in Finding of Fact 8. COPIES FURNISHED: Ms. Myriam Lucia Nalda Van B. Poole, Secretary 9115 Southwest 150th Ave Department of Professional Miami, Florida 33196 Regulation 130 North Monroe Street Patricia V. Russo, Esquire Tallahassee, Florida 32399-0750 Department of Legal Affairs The Capitol, Suite 1601 Joseph A. Sole, General Counsel Tallahassee, Florida 32399 Department of Professional Regulation Ms. Dorothy Faircloth 130 North Monroe Street Executive Director Tallahassee, Florida 32399-0750 Department of Professional Regulation Marcelle Flannigan, Director Board of Medicine Physical Therapy Council 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399 Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether the respondent is guilty of the violations alleged in the Notice of Intent to Impose Administrative Fine, and, if so, the amount of the fine which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with the administration of sections 501.012-.019, Florida Statutes, and is responsible for registering health studios. The Division of Consumer Services carries out this function. Mr. Beattie and his brother, Tim, are owners of the Paradise Gym, a health studio located at 1236 South Dixie Highway, Coral Gables, Florida. The gym has been in business since 1976 and in its present location for over six years. The Department contacted the Paradise Gym several times in 1992 regarding the statutory requirement that it register as a health studio. The gym continued to operate without being registered, however. In the spring of 1993, the Department obtained an injunction from the circuit court in Dade County, Florida, barring the gym from operating until it registered with the Department. On July 9, 1993, the Department conducted an on-site undercover investigation at the Paradise Gym and found that it was operating as a health studio in violation of the injunction. After the Department scheduled a contempt hearing, the Paradise Gym finally submitted a completed registration application. The gym was registered with the Department on December 6, 1993, and assigned registration number 02370. The annual registration for the Paradise Gym expired on December 6, 1994. The Department sent the Paradise Gym a registration packet enclosed with a letter dated October 24, 1994. The packet contained a registration form, and the letter contained instructions to send the completed form to the Department "together with a copy of the membership contract currently in use and the annual registration fee of $300." (Emphasis in original.) The Department did not receive a response to the October 24 letter. In a letter dated December 2, 1994, the Department notified the Paradise Gym that it must send the completed registration form and other documents within fifteen days of the date of the letter. The December 2 letter contained the warning that the gym must immediately cease "all non-exempt activities" until it came into compliance with the statutes governing health studios. The Department did not receive a response to the December 2 letter. On January 24, 1995, an employee of the Department telephoned Mr. Beattie and was told that the registration packet would be sent by January 27, 1995, and that the application had not been mailed sooner because the gym's offices had flooded and suffered serious damage. The Department did not hear from Mr. Beattie until February 20, 1995, when it received the Paradise Gym's Application for Registration; Affidavit of Exemption from the requirement that a bond, Certificate of Deposit, or letter of credit be posted; and check in the amount of $300 for the annual registration fee. These documents were signed by Mr. Beattie on February 6, 1995. The gym's membership contract was not included with the registration materials, and the Department sent a letter to the Paradise Gym dated February 21, 1995, stating that the Department could not process the application for registration until it received a copy of the contract. The Department received no response to the February 21 letter. In a letter dated March 21, 1995, the Department notified Mr. Beattie that the application for registration of the Paradise Gym was denied because the Department had not received a copy of the gym's membership contract. The letter contained a Notice of Rights and was sent via certified mail. The letter was received at the Paradise Gym, and the return receipt signed, on March 27, 1995. The Department did not receive a response to the letter, either in writing or by telephone, and the denial became final agency action 21 days after it was received at the gym. On May 5, 1995, an investigator for the Department conducted an on- site undercover inspection of the Paradise Gym. The inspection revealed that the gym was operating as a health studio and was offering memberships payable annually or by down payment and monthly installments. On June 13, 1995, the Department issued the Notice of Intent to Impose Administrative Fine at issue in this case and sent it to Mr. Beattie via certified mail. The notice included an offer to settle the matter upon payment of an administrative fine of $3500. The Department did not receive a response to the notice and did not receive a return receipt indicating that the notice had been delivered. In late July, 1995, Douglas Jennings, an employee of the Department, telephoned Mr. Beattie to inquire about his failure to respond to the notice. Mr. Beattie stated that he had not received it, and Mr. Jennings sent him a copy via certified mail. The notice was received at the Paradise Gym on August 3, 1995, and the Department granted the request for hearing dated August 21, 1995. On September 19, 1995, Mr. Jennings received a telephone call from Mr. Beattie in which he asked if the Department would drop the fine; on September 22, 1995, the Department received a copy of a document bearing the logo of the Paradise Gym and entitled "Waiver and Release from Liability and Indemnity Agreement." The contents of this document were substantially different from the contents of the document of the same title submitted in 1993 with the gym's initial application for registration, although the consumer disclosures required by statute remained the same. At hearing, Mr. Beattie explained his failure to submit the Paradise Gym's membership contract until September 22, 1995. He asserted on the one hand that there was no "membership contract" for the gym, just a waiver of liability, and on the other hand that the Department had a copy of the Waiver and Release from Liability and Indemnity Agreement he provided in 1993 with the gym's original application for registration. He did not explain why the Paradise Gym continued to operate after being notified in December 1994 that the gym could not continue operating until it had registered with the Department or why the gym continued to operate after March 21, 1995, when its application for registration was denied. The Department has proven by clear and convincing evidence that the Paradise Gym operated as a health studio without being registered with the Department.
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 finding that the Paradise Gym violated section 501.015(1) by operating without being registered with the Department and imposing an administrative fine in the amount of $100. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of April 1996. PATRICIA HART MALONO 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 11th day of April 1996.
