95-002964
Department Of Agriculture And Consumer Services vs.
Miami Fitness, Inc.
Status: Closed
Recommended Order on Friday, September 22, 1995.
Recommended Order on Friday, September 22, 1995.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8STATE OF FLORIDA, DEPARTMENT )
13OF AGRICULTURE AND CONSUMER )
18SERVICES, )
20)
21Petitioner, )
23)
24vs. ) CASE NO. 95-2964
29)
30MIAMI FITNESS, INC., )
34)
35Respondent. )
37__________________________________)
38RECOMMENDED ORDER
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.
71APPEARANCES
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
111STATEMENT OF THE ISSUES
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.
144PRELIMINARY STATEMENT
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.
342FINDINGS OF FACT
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.
1360CONCLUSIONS OF LAW
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
1574members.
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
1716distance.
171729. Section 501.0125(2), Florida Statutes, defines "health studio
1725services" as "privileges or rights offered for sale or provided by a health
1738studio."
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
1846Fitness.
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.
1870RECOMMENDATION
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.
2009___________________________________
2010SUSAN B. KIRKLAND
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.
2046APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2964
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
2075fact:
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
2122detail.
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
2233detail.
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
2547members.
25483. Paragraphs 16-17: Accepted in substance.
25544. Paragraph 18: Rejected as subordinate to the facts found.
2564COPIES FURNISHED:
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
2634NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
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.
- Date
- Proceedings
- Date: 10/23/1995
- Proceedings: Final Order filed.
- 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
- Judge:
- SUSAN BELYEU KIRKLAND
- Date Filed:
- 06/13/1995
- Date Assignment:
- 06/16/1995
- Last Docket Entry:
- 06/01/2009
- Location:
- Miami, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO