94-005426 Department Of Agriculture And Consumer Services vs. Martin A. Rivera, D/B/A Dance Concepts Status: Closed Recommended Order on Monday, March 27, 1995.

Summary: Evidence sufficient to show that Respondent should have registered as a ballroom dance studio but did not and was in violation of section 501.143(6)

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5426

)

MARTIN A. RIVERA, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of

Administrative Hearings, held a formal hearing in this matter on February 21,

1995, in Sarasota, Florida.

APPEARANCES

For Petitioner: John S. Koda, Esquire

Department of Agriculture

and Consumer Services

Room 515, Mayo Building

Tallahassee, Florida 32399-0800

For Respondent: Martin A. Rivera, Pro se

Post Office Box 657

Oneco, Florida 34264

STATEMENT OF THE ISSUE

Did Respondent Martin A. Rivera operate a "ballroom dance studio" as

defined in Section 501.143(2)(a), Florida Statutes, without being registered in

accordance with Section 501.143(3), Florida Statutes, and thereby violate

Section 501.143(6)(a), Florida Statutes?

PRELIMINARY STATEMENT

By letter dated July 26, 1994, the Department of Agriculture and Consumer

Services (Department) advised the Respondent of its intent to impose an

administrative fine for Respondent's failure to register Dance Concepts,

Stardust Ballroom (Dance Concepts) in accordance with Section 501.143(3),

Florida Statutes, and required the Respondent to register in accordance with

Section 501.143(3), Florida Statutes.

By letter dated September 2, 1994, the Respondent denied the allegations

in the Notice of Intent and advised the Department that Dance Concepts was no

longer in existence and was not doing business in the State of Florida. The

Respondent requested a hearing on the matter.

On September 28, 1994, the Department referred this matter to the Division

of Administrative Hearings (Division) for the assignment of a hearing officer

and the conduct of a formal hearing.

In support of the allegations contained in the Notice Of Intent To Impose

Administrative fine, the Department presented the testimony of Joseph Nicolosi.

Department's composite exhibit 1 was received as evidence. Respondent also

presented the testimony of Joseph Nicolosi. Respondent did not offer any

documentary evidence. The Respondent objected on religious grounds to taking an

oath before testifying. The undersigned explained that the Respondent could

testify if he affirmed to the truthfulness of the testimony to be given rather

than swearing under oath to tell the truth. Although the Respondent indicated

his desire to testify, he refused to declare that he would testify truthfully by

oath or affirmation as required by Section 90.605(1), Florida Statutes.

Therefore, the Respondent was not allowed to testify since he was incompetent to

testify.

The Respondent filed a Motion to Dismiss with the undersigned at the

beginning of the hearing. However, due to the lateness of filing the motion the

undersigned reserved ruling on the motion so as to give the Department and the

undersigned an opportunity to properly consider the motion. After reviewing the

motion, it is clear that the grounds alleged in support of the motion are

insufficient to support a dismissal. Therefore, the Respondent's Motion to

Dismiss is denied.

A transcript of the proceeding was filed with the Division on March 13,

1995. The Petitioner and Department timely filed their Proposed Recommended

Orders. A ruling on each proposed finding of fact submitted by the Petitioner

and Department has been made as reflected in an Appendix to the Recommended

Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the

hearing, the following relevant findings of fact are made:

1. The Department is the agency charged with the responsibility of

investigating and enforcing the provisions of Section 501.143, Florida Statutes,

and is delegated the authority to promulgate rules as may be necessary to carry

out the provisions of Section 501.143, Florida Statutes.

2. At all times material to this proceeding, Respondent Martin A. Rivera

owned and operated Dance Concepts located at 4818-14th Street W., Bradenton,

Florida.

3. Dance Concepts is situated in a shopping center type setting with a

large lighted sign indicating its name. Inside the building there is a foyer

area with a counter and a large room with an empty floor space similar to a

dance floor.

4. Dance Concepts did not have an occupational license and was not

required by Manatee County or the city of Bradenton to have an occupational

license.

5. Dance Concepts was not registered as a "ballroom dance studio" with

the Department under Section 501.143(3), Florida Statutes, at any time material

to this proceeding.

6. Lance Tomlin, Dance Studio Consultant, with the Department made an on-

site visit at Dance Concepts on January 28, 1994. Tomlin's report indicates

that Dance Concepts had been notified twice before concerning registration

without any response from Dance Concepts in regard to registration.

7. On March 14, 1994, Joseph Nicolosi, Investigator with the Department,

made an on-site visit at Dance Concepts to "shop the business" - not identify

himself so as to obtain information as a customer about what Dance Concepts

offered to the public.

8. Upon entering the foyer area Nicolosi noticed there were several Dance

Concepts business cards and Dance Concepts calendars of events for the month of

March, 1994, (calendar of events) located on the counter. Nicolosi picked up a

business card and a calendar of events. Nicolosi noticed that there were

several persons in large room. Before Nicolosi left Dance Concepts those

persons observed earlier in the large room were dancing on what appeared to be a

large dance floor. Nicolosi did not determine from any of those persons whether

they had purchased dance studio lessons or dance studio services from the

Respondent.

9. After picking up the business card and calendar of events, Nicolosi

identified himself and asked to speak with the Respondent. Nicolosi explained

to Respondent the need to register Dance Concepts as a ballroom dance studio.

The unrebutted testimony of Nicolosi was that Respondent denied the need for

Dance Concepts to register with the Department as a ballroom dance studio,

explaining that Respondent only charged enough to pay the rent and that

Respondent did not advertise. Nicolosi left a Department registration packet

with the Respondent and advised the Respondent to register Dance Concepts with

the Department.

10. Respondent did not register Dance Concepts with the Department. On

July 26, 1994, the Department issued a Notice of Intent to Impose Administrative

Fine.

11. The calendar of events, indicates that Dance Concepts offers the Cha

Cha, Mambo, Samba, and the Paso Doble which are dances that are included in the

definition of "ballroom dance" as defined in Rule 5J-8.002(1), Florida

Administrative Code. In addition, the calendar of events indicates that there

is a "Newcomers Group" for Cha Cha, Mambo and Paso Doble dances and a "Advanced

Group" for Samba, Cha Cha, Mambo and Paso Doble dances.

12. The calendar of events also indicates that on each Thursday evening

of the month of March, 1994 (3rd, 10th, 17th, 24th and 31st), from 8:30 p.m.

until 10:30 p.m. that there would be a public dance party for which there was a

charge of $7.00. Additionally, the calendar of events indicates that there

would be a "Student Party" each Friday evening from 8:30 p.m. until 10:00 p.m.

13. While the calendar of events is insufficient, in and of itself, to

show that Respondent had, at any time material to this proceeding, engaged in

the sale of ballroom "dance studio lessons" as that term is defined in Section

501.143(2)(b), Florida Statutes, the unrebutted testimony of Nicolosi

establishes that Respondent engages in the sale of "dance studio lessons" as

that term is defined in Section 501.143(2)(b), Florida Statutes, even if the

amount charged is only enough to pay the rent. In addition, the calendar of

events establishes that Respondent had, at times material to this proceeding,

engaged in the sale of dance studio services as that term is defined in Section

501.143(2)(c), Florida Statutes, by the Respondent's participation in the Public

Dance Party for which there was a charge of $7.00.

14. There was sufficient evidence to establish facts to show that

Respondent: (a) had engaged in the sale of dance studio lessons and dance studio

services as those terms are defined in Section 501.143(2)(b)(c), Florida

Statutes. However, there was no evidence that Respondent had entered into

contracts for future dance studio lessons or dance studio services as those

terms are defined in Section 501.143(2)(b) and (c), Florida Statutes, with any

person.

15. The Respondent does not come within the exemptions set forth in

Section 501.143(11), Florida Statutes.

16. Dance Concepts' location is specifically used for dance studio

lessons and dance studio services and whatever dance studio lessons or dance

studio services that are provided by Dance Concepts are provided at Dance

Concepts' location.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, this proceeding pursuant to Section

120.57(1), Florida Statutes.

18. The burden of proof is on the party asserting the affirmative of an

issue before an administrative tribunal. Florida Department of Transportation

v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 2d DCA 1981). To meet this burden

the Department must establish facts upon which the allegations of misconduct

are based by a preponderance of the evidence. The Department has met its burden

in this regard.

19. Pertinent to this case, Section 501.143(2),(3),(4),(6),(7),(11) and

(12), Florida Statutes, provide:

(2) DEFINITIONS. - For purposes of this

section, the term:

(a) "Ballroom dance studio" means any person that:

1. Engages in the sale of ballroom dance studio

lessons or services which are provided at a location

specifically used for dance studio lessons or

services; or

2. Secures floor space at a registered ballroom

dance facility or other facility which is not used

primarily for rendering dance studio lessons or

services and enters into contracts for future dance

studio lessons or services.

(b) "Dance studio lessons" include instruction,

training, or assistance in dancing and the use of

ballroom dance studio facilities.

(c) "Dance studio services" include membership

in any group, club, or association formed by a

ballroom dance studio, participation in dance

competitions, dance showcases, trips, tours,

parties, and other organized events.

(d) "Department" means the Department of

Agriculture and Consumer Services.

(e) "Enforcing authority" means the Department

of Agriculture and Consumer Services or the

Department of Legal Affairs.

* * *

(3) REGISTRATION OF BALLROOM DANCE STUDIOS. -

(a) Each owner or operator of a ballroom

dance studio shall annually register with the

department no later than October 1, . . .

(b) Each person applying for or renewing a

local occupational license to engage in business

as a ballroom studio must exhibit an active

registration certificate from the department

before the local occupational license may be

issued or reissued under Chapter 205.

(4) CONTRACT REQUIREMENTS. - Every contract

for ballroom dance studio services or lessons

shall be in writing and shall be subject to

this section. . . .

(6) PROHIBITED PRACTICES. - It is a violation

of this section for any person:

(a) To conduct business as a ballroom dance

studio without registering annually with the

department.

* * *

The department may employ investigators and

conduct investigations of violations of this section.

(7) PENALTIES; REMEDIES. - The following

penalties and remedies are available for enforcement

of the provisions of this section.

* * *

(b) The department may impose an administrative

fine not to exceed $5,000 per violation.

(11) EXEMPTIONS. - This section does not apply to:

(a) Governmental and bona fide tax-exempt not-

for-profit entities.

(b) Contracts for ballroom dance studio services

or lessons entered into prior to October 1, 1992.

(12) RULEMAKING AUTHORITY. - The department

shall promulgate such rules as may be necessary

to carry out the provisions of this section.

(Emphasis supplied)

20. In furtherance of its legislative delegated authority under Section

501.143(12), Florida Statutes, the Department adopted Rules 5J-8.002 and 5J-

8.003, Florida Administrative Code, which provide:

5J-8.002 Definitions. The definitions contained

in Section 501.143(2), Florida Statutes, and

the following shall apply:

(1) Ballroom dance - includes, but is not

limited to, one or more of the following dances:

Bolero, Cha Cha, Foxtrot, Mambo, Merengue, Paso

Doble, Polka, Quickstep, Rumba, Swing, Viennese

Waltz, Waltz.

* * *

(3) Person - means any individual, group of

individual, firm, independent contractor,

association, corporation, partnership, joint

venture, sole proprietorship or any other entity.

5J-8.003 Registration.

(1) Any person who intends to open or operate

as a dance studio, shall prior to engaging in

such activity, register with the Department. . . .

* * *

(4) No person shall engage in the sale of any

ballroom dance studio activities or provide ballroom

dance studio services in this state prior to

obtaining written authorization issued by the

Department to conduct such activity or provide

such service.

21. It is clear that Respondent did offer dance studio lessons and dance

studio services as those terms are defined in Section 501.143(2)(b)(c), Florida

Statutes. It is equally clear that the Respondent had engaged in the sale of

dance studio lessons and dance studio services under Section 501.143(2)(a)1.,

Florida Statutes. Therefore, since the Respondent is not exempt from

registering under Section 501.143(11), Florida Statutes, his failure to register

under Section 501.143(3), Florida Statutes, and Rule 5J-8.003, Florida

Administrative Code, is a violation of Section 501.143(6)(a), Florida Statutes,

and subject to an administrative fine in accordance with Section 501.143(7)(b),

Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

recommended that the Department enter a Final Order finding that Respondent

Martin A. Rivera violated Section 501.143(6)(a), Florida Statutes, and imposing

an administrative fine of $500 upon the Respondent for such violation. In

reaching the conclusion that a $500 administrative fine was sufficient for the

violation, the undersigned takes into consideration that Dance Concepts is no

longer in business, only one registration year was involved, there was no

monetary loss suffered by any consumer (customer) and that the purpose of

imposing a fine is to bring about compliance, not retaliation.

RECOMMENDED this day 27th of March, 1995, at Tallahassee, Florida.

___________________________________

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of March, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5426

The following constitutes my specific rulings, pursuant to Section

120.59(2), Florida Statutes, on all of the proposed findings of fact submitted

by the parties in this case.

Department's Proposed Findings of Fact.

1. Proposed findings of fact 1 through 9 are adopted in substance as

modified in Findings of Fact 1 through 16.

Respondent's Proposed Findings of Fact.

1. Proposed findings of fact 1 through 3 are a mixture of fact and

argument which Respondent alleged in his Motion to Dismiss, which was denied.

These proposed findings of fact are rejected as not being relevant or material

or unnecessary along with being rejected as argument.

2. Proposed finding of fact 4 is neither material nor relevant.

3. Proposed finding of fact 5 is rejected as legal argument, but see

paragraph 19 under Conclusions of Law.

4. Proposed finding of fact 6 is neither material nor relevant.

5. Proposed finding of fact 7 is not supported by the record.

6. Proposed findings of fact 8 and 10 are neither material nor relevant.

7. Proposed findings of fact 9 and 11 are rejected as being argument.

COPIES FURNISHED:

John S. Koda, Esquire

Department of Agriculture

and Consumer Services

Room 515, Mayo Building

Tallahassee, Florida 32399-0800

Mr. Martin A. Rivera

Post Office Box 657

Oneco, Florida 34264

Honorable Bob Crawford

Commissioner of Agriculture

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler, Esquire

General Counsel

Department of Agriculture

The Capitol, PL-10

Tallahassee Florida 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should consult with the agency that will issue the

final order in this case concerning their 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.