95-002964 Department Of Agriculture And Consumer Services vs. Miami Fitness, Inc.
 Status: Closed
Recommended Order on Friday, September 22, 1995.

View Dockets  
Summary: Health studio to which memberships of defunct health studio were transferred were not of equal quality.







21Petitioner, )


24vs. ) CASE NO. 95-2964




35Respondent. )



40Pursuant to notice, the Division of Administrative Hearings, by its duly

51designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this

63case on August 22, 1995, in Miami, Florida.


72For Petitioner: Lawrence J. Davis

77Senior Attorney

79Department of Agriculture and

83Consumer Services

85Room 515, Mayo Building

89Tallahassee, Florida 32399-0800

92For Respondent: Lloyd B. Silverman, Esquire

982880 West Oakland Park Boulevard

103Number 103, Suite 201

107Fort Lauderdale, Florida 33311


115Whether Respondent, a health studio, provided its members a facility of

126equal quality, within five driving miles, at no extra cost, when Respondent's

138business ceased operations in February, 1995.


146By letter dated May 9, 1995, Petitioner, Department of Agriculture and

157Consumer Services (Department), notified Patty Kinast, President of Respondent,

166Miami Fitness, Inc. (Miami Fitness), that the Department had received claims

177against Miami Fitness' letter of credit and intended to make a demand under the

191terms of the security. Miami Fitness requested an administrative hearing, and

202the case was forwarded to the Division of Administrative Hearings on June 13,

2151995 for assignment to a Hearing Officer.

222At the final hearing, the Department called the following witnesses: Joe

233Alexionok, Karen Booher, Florence Brookmire, Lisa Hartman, Maria Ricco-Brizard,

242Karen Rosenfeld, Arlice Whiting-Larkin, Delilah Storey, Renay Rossi, and Mary Jo

253Weinberg. Department's Exhibits 1-27 were admitted in evidence.

261At the final hearing, Miami Fitness called the following witnesses: Jason

272Gonzalez, Anna Asavida, Carmen Dorrschuck, John Andrew Seymour, and Patti

282Kinast. Miami Fitness' Exhibits 1-9 were admitted in evidence.

291The parties agreed to file proposed recommended orders within ten days

302after the date of the filing of the transcript. The transcript was filed on

316September 5, 1995. The parties timely filed their proposed recommended orders.

327The parties' proposed findings of fact are addressed in the Appendix to this

340Recommended Order.


3451. Respondent, Miami Fitness, Inc. (Miami Fitness), advised Petitioner,

354the Department of Agriculture and Consumer Services (Department), by letter

364dated October 30, 1993, that Miami had purchased the assets of Body Mystique, a

378health studio, and would honor all of its memberships. Miami Fitness was to

391begin operations as of November 1, 1994.

3982. Miami Fitness registered with the Department as a health studio and

410posted an irrevocable standby letter of credit for $50,000. The letter of

423credit was amended on July 26, 1994, to extend the expiration date to October

43729, 1995.

4393. The purpose of the letter of credit is to protect the members of the

454health studio. Money would be available to compensate members if Miami Fitness

466went out of business or the members' contracts were not assigned to a facility

480of equal quality within a five mile radius of Miami Fitness. Refunds would be

494made on a pro rata basis.

5004. Body Mystique had been a women's only health studio as was it

513predecessor My Fair Lady. At one time Body Mystique had requested permission

525from the Department to turn the all women's facility into a coed health studio,

539but the Department denied the request. When Miami Fitness purchased Body

550Mystique, it continued to operate the facility as an all women health studio.

563The facilities occupied by Miami Fitness had been an all women's health studio

576for 23 years.

5795. Miami Fitness advertised and promoted the health studio as the "total

591fitness studio for women." It also advertised that its weight room was for

604women by stating: "Our weight training area is unique in that it is

617specifically designed for women."

6216. Miami also promoted its wet area. One advertisement stated: "We have

633all the amenities that a woman needs: sauna, steamroom, eucalyptus room,

644showers, dressing area; and great aerobic classes on a suspended wood floor,

656with a fully equipped weight room and cardiovascular area specifically designed

667for women."

6697. The contracts between Miami Fitness and its members included a

680provision that the member may cancel and receive a refund if Miami Fitness

693closes and does not provide the member with "similar facilities of equal

705quality" within a five mile radius of the closed facility.

7158. On February 10, 1995, Joe Alexionok, a consumer services consultant

726with the Department, was notified that Miami Fitness had closed its doors. By

739letter dated February 26, 1995, Mr. Alexionok requested Miami Fitness to advise

751the Department whether Miami Fitness was going to provide services or make pro-

764rata refunds. By letter dated March 10, 1995, Patty Kinast, President of Miami

777Fitness, notified the Department that Miami Fitness had made an agreement with

789U.S. 1 Fitness to assume Miami Fitness memberships.

7979. Having determined that U.S. 1 Fitness was not a facility of equal

810quality, the Department sent certified letters to the bank holding the letter of

823credit and to Patty Kinast that the Department would make a demand upon the

837letter of credit to refund members who filed a complaint against Miami Fitness

850because U.S. 1 Fitness was not of equal quality.

85910. A notice was also published in the Miami Post advising that anyone

872having a claim against Miami Fitness must file the claim with the Department by

886September 30, 1995.

88911. U.S. 1 Fitness is a coed health studio which is located within a five

904mile radius of Miami Fitness. U.S. 1 Fitness does not have a sauna, steamroom

918or eucalyptus room.

92112. U.S. 1 Fitness has approximately 2,500 members with approximately 900

933active members. Miami Fitness had a membership of about 1,000 with

945approximately 400 members who were active.

95113. U.S. 1 Fitness' facility has approximately 11,000 square feet. Miami

963Fitness' facility had approximately 4,600 square feet.

97114. Miami Fitness was open during the following hours: Monday and

982Tuesday, 7:00 a.m. - 9:30 p.m.; Wednesday-Friday, 7:00 a.m - 9:00 p.m.;

994Saturday, 9:00 a.m. - 5:00 a.m.; and Sunday 10:00 a.m. - 5:00 p.m. U.S. 1

1009Fitness is open during the following hours: Monday-Friday, 5:00 a.m. - 11:00

1021p.m. and Saturday and Sunday, 7:00 a.m. - 8:00 p.m.

103115. U.S. 1 Fitness offers 38 exercise-type classes each week, including a

1043yoga class on Tuesday and Thursday mornings. Miami Fitness offered 32 exercise-

1055type classes each week with a yoga class on Tuesday and Thursday mornings and on

1070Wednesday evening. The yoga classes at U.S. 1 Fitness are taught by the same

1084instructor who taught morning yoga classes at Miami Fitness. U.S. 1 Fitness has

1097exercise classes which are equal in quality to those provided by Miami Fitness.

111016. As part of the agreement with U.S. 1 Fitness, Miami Fitness

1122transferred some of its equipment to U.S. 1 Fitness. U.S. 1 has equipment which

1136is newer than the Miami Fitness' equipment. U.S. 1 Fitness has as good or

1150better equipment than Miami Fitness did.

115617. U.S. 1 Fitness has babysitting services as did Miami Fitness. U.S. 1

1169Fitness' babysitting services are as good as or better than the babysitting

1181services at Miami Fitness.

118518. U.S. 1 Fitness is located in well-lighted shopping center area and has

1198as good or better security as Miami Fitness.

120619. After Miami Fitness closed, the Department received 12 written

1216complaints from Miami Fitness members. The majority of the complaints were

1227based on a lack of wet facilities at U.S. 1 Fitness and U.S. 1 Fitness not being

1244an all women's facility. Most of the complainants had joined Miami Fitness

1256because it was a women's only facility. They felt uncomfortable and self

1268conscious exercising in a coed facility. They liked the facility because it was

1281small, not crowded, and had a friendly, intimate atmosphere. At least two of

1294the complainants had visited U.S. 1 Fitness before signing up with Miami Fitness

1307and preferred Miami Fitness over U.S. 1 Fitness.

131520. While Miami Fitness was operating, between 25 and 50 members regularly

1327used the wet facilities each week.

133321. U.S. Fitness 1 is not a facility of equal quality to Miami Fitness as

1348it relates to the wet area and the membership being exclusively women.


136322. The Division of Administrative Hearings has jurisdiction over the

1373parties to and the subject matter of this proceeding. Section 120.57(1),

1384Florida Statutes.

138623. The Department of Agriculture and Consumer Services, is the state

1397agency responsible for administering and enforcing the provisions of Sections

1407501.012-501.019, Florida Statutes, regulating health studio contracts.

141424. Section 501.107, Florida Statutes, requires health studio contracts to

1424have a provision for cancellation and refund if the health studio goes out of

1438business and fails to provide within 30 days a facility of equal quality located

1452within five driving miles of the closed health studio.

146125. A facility of equal quality is determined pursuant to Rule 5J-4.012,

1473Florida Administrative Code as follows:

1478(1) For purposes of Section 501.017,

1484Florida Statutes, and this chapter, the

1490Department shall consider the following

1495factors in determining equal quality

1500among health studios:

1503(a) A comparison of equipment, facilities

1509and health studio-related services offered or

1515available to members;

1518(b) The availability of the equipment and

1525facilities for use on the same days and times

1534by the consumers;

1537(c) The distance between the facilities.

1543(2) The Department shall consider the factors

1550listed above and make a determination of whether

1558a health studio is a facility of equal quality,

1567which determination shall apply to all applicable


157526. The exercise equipment at U.S. 1 Fitness is of equal quality with the

1589equipment which was offered at Miami Fitness. In fact, some of Miami Fitness'

1602equipment was transferred to U.S. 1 Fitness.

160927. With the exception of the wet area, the U.S. 1 Fitness physical

1622facility is of equal quality to Miami Fitness. U.S. 1 Fitness does not have a

1637sauna, steamroom or eucalyptus room; thus, the facility at U.S. 1 Fitness is not

1651of equal quality to the facilities at Miami Fitness. The availability of the

1664equipment and facilities for use on the same days and times by the consumers at

1679U.S. 1 Fitness is of equal value to Miami Fitness.

168928. The distance between Miami Fitness and U.S. 1 Fitness is less than

1702five miles; therefore, the two businesses are of equal value as it relates to


171729. Section 501.0125(2), Florida Statutes, defines "health studio

1725services" as "privileges or rights offered for sale or provided by a health


173930. Miami Fitness marketed itself as a women's only health studio. The

1751emphasis of its advertising was that the facility and the equipment were geared

1764for women. The majority of the women who filed written complaints were unhappy

1777because they joined Miami Fitness because it was for women only and they did not

1792want to work out in a coed facility. The restriction of memberships to women is

1807a health studio service as defined by Section 501.0125(2), Florida Statutes.

1818The members of Miami Fitness bought the privilege of working out with only

1831women. U.S. 1 Fitness is a coed facility and not of equal quality to Miami


184731. Considering the factors in Rule 5J-4.012, Florida Administrative Code,

1857U.S. 1 Fitness is not a facility of equal quality to Miami Fitness.


1871Based on the foregoing Findings of Fact and Conclusions of Law, it is

1884RECOMMENDED that a Final Order be entered finding that Miami Fitness, Inc.

1896did not provide its members with a facility of equal quality and that the twelve

1911written claims made by the members of Miami Fitness, Inc., because it was not a

1926facility of equal quality be certified as valid claims against the irrevocable

1938standby letter of credit given to the Department of Agriculture and Consumer

1950Services by Miami Fitness, Inc., and that any written claims filed on or before

1964September 30, 1995 by members on the basis their contracts were not assigned to

1978a facility of equal quality be certified as valid claims against the irrevocable

1991standby letter of credit.

1995DONE AND ENTERED this 25th day of September, 1995, in Tallahassee, Leon

2007County, Florida.



2013Hearing Officer

2015Division of Administrative Hearings

2019The DeSoto Building

20221230 Apalachee Parkway

2025Tallahassee, Florida 32399-1550

2028(904) 488-9675

2030Filed with the Clerk of the

2036Division of Administrative Hearings

2040this 25th day of September, 1995.


2053To comply with the requirements of Section 120.59(2), Florida Statutes

2063(1993), the following rulings are made on the parties' proposed findings of


2076Petitioner's Proposed Findings of Fact.

20811. Paragraphs 1-14: Accepted in substance.

20872. Paragraph 15: Rejected as unnecessary detail.

20943. Paragraphs 16-21: Accepted in substance.

21004. Paragraph 22: The first, fifth, sixth, seventh, ninth, and eleventh

2111sentences are accepted in substance. The remaining is rejected as unnecessary


21235. Paragraph 23: The first, fourth, and sixth sentences are accepted in

2135substance. The remaining is rejected as unnecessary detail.

21436. Paragraph 24: The first, fourth, fifth and sixth sentences are

2154accepted in substance. The remaining is rejected as unnecessary detail.

21647. Paragraph 25: The first, second, third, sixth, and eleventh sentences

2175are accepted in substance. The remaining is rejected as unnecessary detail.

21868. Paragraph 26: Rejected as unnecessary.

21929. Paragraph 27: Accepted in substance.

219810. Paragraph 28: The first, third, sixth, and seventh sentences are

2209accepted in substance. The eighth sentence is rejected as not supported by

2221the greater weight of the evidence. The remaining is rejected as unnecessary


223411. Paragraph 29: The first, third, fourth, fifth, seventh, eighth, and

2245fourteenth sentences are accepted in substance. The remaining is rejected as

2256unnecessary detail.

225812. Paragraph 30: The first and third sentences are accepted in

2269substance. The second sentence is rejected as unnecessary detail.

227813. Paragraph 31: Accepted in substance.

228414. Paragraph 32: The first and third sentences are accepted in

2295substance. The remaining is rejected as unnecessary detail.

230315. Paragraph 33: The last sentence is rejected as unnecessary. The

2314remainder is accepted in substance.

231916. Paragraph 34: Rejected as unnecessary.

232517. Paragraph 35: Accepted in substance.

233118. Paragraph 36: The fourth sentence is accepted in substance. The

2342remaining is rejected as unnecessary detail.

234819. Paragraphs 37-40: Rejected as subordinate to the facts found.

235820. Paragraph 41: The third, fourth, eighth, ninth and tenth sentences

2369are accepted in substance. The fifth sentence is accepted in substance as it

2382relates to equipment and number of classes but not as to atmosphere. The

2395remainder is rejected as unnecessary.

240021. Paragraphs 42-43: Rejected as unnecessary.

240622. Paragraph 44: The fifth sentence is accepted in substance. The

2417remainder is rejected as unnecessary.

242223. Paragraph 45: The first, fourth, sixth, seventh, eighth, eleventh,

2432and twelfth sentences are accepted in substance. The ninth sentence is

2443rejected as it relates to those women who filed complaints because U.S. 1

2456Fitness was coed. The remainder is rejected as unnecessary detail.

246624. Paragraph 46: Rejected that the facilities were comparable.

247525. Paragraph 47: Accepted in substance except U.S. 1 Fitness had 38

2487classes. 26. Paragraph 48: Accepted in substance.

2494Respondent's Proposed Findings of Fact.

24991. Paragraphs 1-14: Accepted in substance.

25052. Paragraph 15: The first sentence is accepted. The second sentence is

2517rejected to the extent that it implies that the wet facility at Miami Fitness

2531was not a reason for choosing Miami Fitness and was not used or enjoyed by it


25483. Paragraphs 16-17: Accepted in substance.

25544. Paragraph 18: Rejected as subordinate to the facts found.


2566Lawrence J. Davis, Esquire

2570Office of the General Counsel

2575Florida Department of Agriculture

2579& Consumer Services

2582The Capital, Mayo Building, Room 515

2588Tallahassee, Florida 32399-0800

2591Lloyd B. Silverman, Esquire

25952800 West Oakland Park Boulevard, Suite 201

2602Oakland Park, Florida 33311

2606Honorable Bob Crawford

2609Commissioner of Agriculture

2612The Capitol, PL-10

2615Tallahassee, Florida 32399-0810

2618Richard Tritschler

2620General Counsel

2622Department of Agriculture

2625and Consumer Services

2628The Capitol, PL-10

2631Tallahassee, Florida 32399-0810


2640All parties have the right to submit written exceptions to this recommended

2652order. All agencies allow each party at least ten days in which to submit

2666written exceptions. Some agencies allow a larger period within which to submit

2678written exceptions. You should contact the agency that will issue the final

2690order in this case concerning agency rules on the deadline for filing exceptions

2703to this recommended order. Any exceptions to this recommended order should be

2715filed with the agency that will issue the final order in this case.

Select the PDF icon to view the document.
Date: 06/01/2009
Proceedings: Final Order filed.
Date: 10/23/1995
Proceedings: Final Order filed.
Date: 10/17/1995
Proceedings: Agency Final Order
Date: 10/17/1995
Proceedings: Agency Final Order
Date: 10/17/1995
Proceedings: Recommended Order
Date: 09/22/1995
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 8/22/95.
Date: 09/18/1995
Proceedings: Amended Certificate of Service filed. (for Agri. Proposed Recommended Order)
Date: 09/14/1995
Proceedings: Respondent Findings of Fact filed.
Date: 09/13/1995
Proceedings: Department's Proposed Recommended Order filed.
Date: 09/05/1995
Proceedings: Transcript of Proceedings filed.
Date: 08/24/1995
Proceedings: Post-Hearing Order sent out.
Date: 08/18/1995
Proceedings: (Joint) Prehearing Statement w/cover letter filed.
Date: 08/16/1995
Proceedings: (Lloyd B. Silverman) Exhibits filed.
Date: 08/10/1995
Proceedings: (Respondent) Notice of Filing Discovery; Discovery Witness List filed.
Date: 08/08/1995
Proceedings: Unilateral Prehearing Stipulation As to Petitioners List of Exhibits and Witness List filed.
Date: 07/21/1995
Proceedings: (Petitioner) Notice of Filing Discovery filed.
Date: 07/11/1995
Proceedings: Order of Prehearing Instructions sent out.
Date: 07/11/1995
Proceedings: Notice of Hearing sent out. (hearing set for 8/22/95; 2:00pm; Miami)
Date: 07/11/1995
Proceedings: Respondent`s Response to Initial Order filed.
Date: 07/10/1995
Proceedings: Respondent`s Response to Initial Order filed.
Date: 06/27/1995
Proceedings: Order Granting Extension of Time and Notice of Ex Parte Communication sent out.
Date: 06/26/1995
Proceedings: Letter to SBK from P. Kinast (RE: response to Initial Order) filed.
Date: 06/22/1995
Proceedings: (Petitioner) Joint Response to Initial Order filed.
Date: 06/16/1995
Proceedings: Initial Order issued.
Date: 06/13/1995
Proceedings: Agency referral letter; Petition for Formal Proceedings Form; Agency Action letter filed.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Miami, Florida

Related DOAH Cases(s) (1):

Related Florida Statute(s) (4):

Related Florida Rule(s) (1):