95-005126
Department Of Agriculture And Consumer Services vs.
Bruce S. Beattie Ii, D/B/A Paradise Gym
Status: Closed
Recommended Order on Thursday, April 11, 1996.
Recommended Order on Thursday, April 11, 1996.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF AGRICULTURE AND )
13CONSUMER SERVICES, )
16)
17Petitioner, )
19)
20vs. ) CASE NO. 95-5126
25)
26S. BRUCE BEATTIE, II, )
31d/b/a PARADISE GYM, )
35)
36Respondent. )
38__________________________________)
39RECOMMENDED ORDER
41Pursuant to notice, a formal administrative hearing was held in this case
53on December 11, 1995, via video teleconference in Miami, Florida, and
64Tallahassee, Florida, before Patricia Hart Malono, a duly designated Hearing
74Officer of the Division of Administrative Hearings.
81APPEARANCES
82For Petitioner: Lawrence J. Davis, Senior Attorney
89Department of Agriculture and
93Consumer Services
95515 Mayo Building
98Tallahassee, Florida 32399-0800
101For Respondent: S. Bruce Beattie, II, Owner
108Paradise Gym
1101236 South Dixie Highway
114Coral Gables, Florida 33146
118STATEMENT OF THE ISSUE
122Whether the respondent is guilty of the violations alleged in the Notice of
135Intent to Impose Administrative Fine, and, if so, the amount of the fine which
149should be imposed.
152PRELIMINARY STATEMENT
154In a Notice of Intent to Impose Administrative Fine dated June 13, 1995,
167the Department of Agriculture and Consumer Services ("Department"), notified
178Bruce S. Beattie, II, 1/ that it intended to impose an administrative fine
191against the Paradise Gym for operating as a health studio without being
203registered as required by section 501.015, Florida Statutes. Mr. Beattie
213requested a formal administrative hearing, and the case was forwarded to the
225Division of Administrative Hearings for formal proceedings. By Notice of
235Hearing, this case was set for final hearing on December 11, 1995, via video
249teleconference.
250The Department was present in the video conference room at the Division of
263Administrative Hearings in Tallahassee, Florida. The Department called four
272witnesses: Joe Alexionok, a consumer consultant analyst with the Department;
282James R. Kelly, Director of the Division of Consumer Services; Gloria Van
294Treese, Chief of the Bureau of Consumer Protection; and Douglas Jennings, an
306investigator for the Department. The Department's Exhibits 1 through 29 were
317received into evidence. Mr. Beattie was present in the video conference room in
330the Ruth Rohde Building in Miami, Florida; a court reporter was also present at
344that location. Mr. Beattie testified in behalf of the Paradise Gym, as part
357owner. Respondent's Exhibit 1 was received into evidence.
365The transcript was filed, and the Department timely submitted a proposed
376recommended order. Rulings on the Department's proposed findings of fact are
387contained in the Appendix to this Recommended Order.
395FINDINGS OF FACT
398Based on the oral and documentary evidence presented at the final hearing
410and the entire record of this proceeding, the following findings of fact are
423made:
4241. The Department is the state agency charged with the administration of
436sections 501.012-.019, Florida Statutes, and is responsible for registering
445health studios. The Division of Consumer Services carries out this function.
4562. Mr. Beattie and his brother, Tim, are owners of the Paradise Gym, a
470health studio located at 1236 South Dixie Highway, Coral Gables, Florida. The
482gym has been in business since 1976 and in its present location for over six
497years.
4983. The Department contacted the Paradise Gym several times in 1992
509regarding the statutory requirement that it register as a health studio. The
521gym continued to operate without being registered, however. In the spring of
5331993, the Department obtained an injunction from the circuit court in Dade
545County, Florida, barring the gym from operating until it registered with the
557Department.
5584. On July 9, 1993, the Department conducted an on-site undercover
569investigation at the Paradise Gym and found that it was operating as a health
583studio in violation of the injunction. After the Department scheduled a
594contempt hearing, the Paradise Gym finally submitted a completed registration
604application. The gym was registered with the Department on December 6, 1993,
616and assigned registration number 02370.
6215. The annual registration for the Paradise Gym expired on December 6,
6331994. The Department sent the Paradise Gym a registration packet enclosed with
645a letter dated October 24, 1994. The packet contained a registration form, and
658the letter contained instructions to send the completed form to the Department
"670together with a copy of the membership contract currently in use and the annual
684registration fee of $300." (Emphasis in original.) The Department did not
695receive a response to the October 24 letter.
7036. In a letter dated December 2, 1994, the Department notified the
715Paradise Gym that it must send the completed registration form and other
727documents within fifteen days of the date of the letter. The December 2 letter
741contained the warning that the gym must immediately cease "all non-exempt
752activities" until it came into compliance with the statutes governing health
763studios. The Department did not receive a response to the December 2 letter.
7767. On January 24, 1995, an employee of the Department telephoned Mr.
788Beattie and was told that the registration packet would be sent by January 27,
8021995, and that the application had not been mailed sooner because the gym's
815offices had flooded and suffered serious damage. The Department did not hear
827from Mr. Beattie until February 20, 1995, when it received the Paradise Gym's
840Application for Registration; Affidavit of Exemption from the requirement that a
851bond, Certificate of Deposit, or letter of credit be posted; and check in the
865amount of $300 for the annual registration fee. These documents were signed by
878Mr. Beattie on February 6, 1995.
8848. The gym's membership contract was not included with the registration
895materials, and the Department sent a letter to the Paradise Gym dated February
90821, 1995, stating that the Department could not process the application for
920registration until it received a copy of the contract. The Department received
932no response to the February 21 letter.
9399. In a letter dated March 21, 1995, the Department notified Mr. Beattie
952that the application for registration of the Paradise Gym was denied because the
965Department had not received a copy of the gym's membership contract. The letter
978contained a Notice of Rights and was sent via certified mail.
98910. The letter was received at the Paradise Gym, and the return receipt
1002signed, on March 27, 1995. The Department did not receive a response to the
1016letter, either in writing or by telephone, and the denial became final agency
1029action 21 days after it was received at the gym.
103911. On May 5, 1995, an investigator for the Department conducted an on-
1052site undercover inspection of the Paradise Gym. The inspection revealed that
1063the gym was operating as a health studio and was offering memberships payable
1076annually or by down payment and monthly installments.
108412. On June 13, 1995, the Department issued the Notice of Intent to Impose
1098Administrative Fine at issue in this case and sent it to Mr. Beattie via
1112certified mail. The notice included an offer to settle the matter upon payment
1125of an administrative fine of $3500. The Department did not receive a response
1138to the notice and did not receive a return receipt indicating that the notice
1152had been delivered.
115513. In late July, 1995, Douglas Jennings, an employee of the Department,
1167telephoned Mr. Beattie to inquire about his failure to respond to the notice.
1180Mr. Beattie stated that he had not received it, and Mr. Jennings sent him a copy
1196via certified mail. The notice was received at the Paradise Gym on August 3,
12101995, and the Department granted the request for hearing dated August 21, 1995.
122314. On September 19, 1995, Mr. Jennings received a telephone call from Mr.
1236Beattie in which he asked if the Department would drop the fine; on September
125022, 1995, the Department received a copy of a document bearing the logo of the
1265Paradise Gym and entitled "Waiver and Release from Liability and Indemnity
1276Agreement." The contents of this document were substantially different from the
1287contents of the document of the same title submitted in 1993 with the gym's
1301initial application for registration, although the consumer disclosures required
1310by statute remained the same.
131515. At hearing, Mr. Beattie explained his failure to submit the Paradise
1327Gym's membership contract until September 22, 1995. He asserted on the one hand
1340that there was no "membership contract" for the gym, just a waiver of liability,
1354and on the other hand that the Department had a copy of the Waiver and Release
1370from Liability and Indemnity Agreement he provided in 1993 with the gym's
1382original application for registration. He did not explain why the Paradise Gym
1394continued to operate after being notified in December 1994 that the gym could
1407not continue operating until it had registered with the Department or why the
1420gym continued to operate after March 21, 1995, when its application for
1432registration was denied.
143516. The Department has proven by clear and convincing evidence that the
1447Paradise Gym operated as a health studio without being registered with the
1459Department.
1460CONCLUSIONS OF LAW
146317. The Division of Administrative Hearings has jurisdiction over the
1473subject matter of this proceeding and the parties hereto pursuant to section
1485120.57(1), Florida Statutes.
148818. Sections 501.014 and .015, Florida Statutes, give the Department
1498responsibility for licensing and regulating health studios. Pursuant to the
1508grant of rulemaking authority in section 501.014(2)(a), the Department has
1518promulgated rules "to implement, enforce, and interpret" its duties under
1528sections 501.012-.019, Florida Statutes.
153219. Section 501.015, Florida Statutes, states in pertinent part:
1541501.015 Health studios; registration requirement
1546and fees.--Each health studio shall:
1551(1) Register each of its business locations with
1559the department in a form and manner as required by
1569the department.
1571The Department has promulgated rule 5J-4.004, Florida Administrative Code, which
1581provides:
15825J-4.004 Registration. Any person who intends to
1589open or operate as a health studio shall, prior to
1599engaging in such activities, register with the
1606Department using Form 10300, Health Studio
1612Registration. . . .
161620. Section 501.019, Florida Statutes, authorizes the Department to impose
1626penalties on health studios which are not in compliance with the requirements of
1639sections 501.012-.019. Section 501.019 provides in pertinent part:
1647(4) The department may impose administrative
1653fines as prescribed below:
1657* * *
1660(c) For a violation of s. 501.015, a fine not
1670to exceed $100 per violation.
1675The Department has not promulgated any rules interpreting this statutory
1685provision.
168621. "Because the imposition of administrative fines . . . , like license
1698revocation proceedings, are penal in nature and implicate significant property
1708rights," the Department has the burden of proving the violation alleged in the
1721Notice of Intent to Impose Administrative Fine by clear and convincing evidence.
1733Department of Banking & Finance, Division of Securities & Investor Protection v.
1745Osborne Stern & Co., 21 Fla. L. Weekly S142, S143 (Fla. March 28, 1996).
175922. The Department has met its burden in this case by proving by clear and
1774convincing evidence that the Paradise Gym was operating in May 1995 without
1786being registered by the Department as required by section 501.015(1). 2/
179723. The Department presented considerable evidence detailing the
1805difficulties it has had over the years with the Paradise Gym. It has come
1819forward with persuasive evidence that Mr. Beattie d/b/a Paradise Gym has flouted
1831the registration requirements of sections 501.012-.019 both in 1992-1993 with
1841regard to the gym's initial registration and in 1994-1995 with regard to its
1854registration for 1994. The evidence demonstrates that Mr. Beattie submitted the
1865completed application for the gym's initial registration in 1993 only when the
1877gym was in jeopardy of being held in contempt of court for violating an
1891injunction barring it from operating without being registered; the evidence also
1902demonstrates that Mr. Beattie submitted the gym's membership contract in
1912September 1995 when the gym was in jeopardy of having an administrative fine
1925imposed for operating without being registered. The evidence is uncontroverted
1935that the Paradise Gym has operated as a health studio without being registered
1948and that Mr. Beattie has steadfastly refused to provide the Department with the
1961documents necessary for registration. Mr. Beattie offered no justification for
1971the gym's continuing to operate without being registered, and his explanation of
1983why he failed to provide the gym's membership contract to complete the 1994
1996registration application is not credible.
200124. The history of the Paradise Gym's relationship with the Department
2012justifies imposition of the maximum statutory penalty for operating without
2022being registered. The Department is authorized to impose an administrative fine
2033for the failure of a health studio to register in an amount "not to exceed $100
2049per violation," section 501.019(4)(c), Fla. Stat., and it may not impose a
2061penalty in excess of that specified by statute. See Florida League of Cities,
2074Inc. v. Administration Commission, 586 So. 2d 397, 412 (Fla. 1st DCA
20861991)(penalty imposed by agency must be supported by competent substantial
2096evidence and "within the statutory range as prescribed by law"). A health
2109studio which operates without being registered with the Department, in violation
2120of section 501.015(1), has committed one violation of section 501.015. The
2131maximum fine which can be imposed is $100. 3/
2140RECOMMENDATION
2141Based on the foregoing Findings of Fact and Conclusions of Law, it is:
2154RECOMMENDED that the Department of Agriculture and Consumer Services enter
2164a Final Order finding that the Paradise Gym violated section 501.015(1) by
2176operating without being registered with the Department and imposing an
2186administrative fine in the amount of $100.
2193DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of
2205April 1996.
2207___________________________________
2208PATRICIA HART MALONO
2211Hearing Officer
2213Division of Administrative Hearings
2217The DeSoto Building
22201230 Apalachee Parkway
2223Tallahassee, Florida 32399-1550
2226(904) 488-9675
2228Filed with the Clerk of the
2234Division of Administrative Hearings
2238this 11th day of April 1996.
2244ENDNOTES
22451/ On December 7, 1995, the Department filed a Motion to Amend Pleading to
2259correct Mr. Beattie's name from Bruce S. Beattie to S. Bruce Beattie. The
2272motion was unopposed and was granted at the hearing.
22812/ The Department notified Mr. Beattie in the June 13, 1995, Notice of Intent
2295to Impose Administrative Fine that it intended to impose an administrative fine
2307against the Paradise Gym because, "[a]s a result of its investigation, the
2319Department has determined that you are operating as a health studio without
2331being registered as required by Section 501.015, Florida Statutes." In its
2342Proposed Recommended Order, however, the Department states that the Paradise Gym
2353should be found guilty of violating section 501.015(1) because it was operating
2365without being registered, section 501.015(5) because it did not post a current
2377registration certificate in a prominent place in the facility, and section
2388501.015(6) because it did not include a registration number on its membership
2400contracts.
2401The Paradise Gym may be found guilty only of the offense alleged by the
2415Department in its charging document, that is, of operating as a health studio
2428without being registered. See Maddox v. Department of Professional Regulation,
2438592 So. 2d 717, 720 (Fla. 1st DCA 1991)(complaint must "make clear the nature of
2453the alleged violations and the statutory provisions allegedly violated"); see
2464also Kinney v. Department of State, Division of Licensing, 501 So. 2d 129, 133
2478(Fla. 5th DCA 1987); Wray v. Department of Professional Regulation, Board of
2490Medical Examiners, 435 So. 2d 312, 315 (Fla. 1st DCA 1983). The Department did
2504not specify in the Notice of Intent to Impose Administrative Fine any violations
2517of section 501.015 except the failure to register, and it did not request at the
2532hearing that it be allowed to amend the Notice to include violations of sections
2546501.015(5) and 501.015(6).
25493/ The Department has recommended that a $3500 administrative fine be imposed
2561against the Paradise Gym. Mr. Kelly, Director of the Department's Division of
2573Consumer Services, testified that this fine was within the range permitted by
2585section 501.019(4)(c), as that section is interpreted by the Department.
2595According to Mr. Kelly, the Department has "always interpreted $100 per
2606violation to [sic] $100 per day, otherwise, there is no incentive for someone to
2620get registered as required by law since the registration fee is $300."
2632The Florida Supreme Court in Osborne Stern equated the imposition of an
2644administrative fine to revocation of a license, holding that both are penal in
2657nature. 21 Fla. L. Weekly at S143. Therefore, statutes authorizing the
2668imposition of administrative fines "must be strictly construed, with any
2678ambiguity interpreted in favor of the licensee." Elmariah v. Department of
2689Professional Regulation, Board of Medicine, 574 So. 2d 164, 165 (Fla. 1st DCA
27021990).
2703The maximum fine specified in section 501.019(4)(c) is $100 "per violation"
2714of section 501.015. There are several distinct provisions of section 501.015
2725which may be violated, and section 501.019(4)(c) could be strictly construed as
2737implicitly limiting to $100 the maximum fine which can be imposed on a health
2751studio for a violation of section 501.015(1)(operating without being
2760registered), and for a violation of section 501.015(5)(failing to post current
2771registration certificate at the front desk), and for a violation of section
2783501.015(6)(failing to include registration number on membership contracts).
2791There is, however, no explicit guidance in the statute as to what
2803constitutes a "violation" of section 501.015. If this lack causes section
2814501.019(4)(c) to be ambiguous, the ambiguity must be construed in favor of the
2827health studio. Accordingly, the statute must be interpreted to mean that $100
2839is the maximum administrative fine which may be imposed against a health studio
2852for violating section 501.015(1) by operating without being registered. It must
2863also be noted that a health studio is required to register and pay the $300
2878registration fee in addition to paying the administrative fine and that the
2890Department has available the alternative civil remedies set out in section
2901501.019(3), some of which it used against the Paradise Gym in 1993 when it was
2916operating in violation of the section 501.015(1) registration requirement.
2925In support of its interpretation of section 501.019(4)(c) to allow the
2936imposition of the maximum fine for each day a health studio operates without
2949being registered, the Department relies on the interpretation of the statutes
2960dealing with solicitation of charitable contributions contained in the
2969Recommended Order in Department of Agriculture & Consumer Services v. United
2980Rainbow Foundation, Inc., DOAH Case No. 92-5344 (April 26, 1993). In that case,
2993the hearing officer construed the following provisions as permitting the
3003imposition of a $1,000 administrative fine for each day on which an unregistered
3017charitable organization collected contributions:
3021496.419 Powers of the department [of Agriculture].--
3028* * *
3031(4) The department may enter an order imposing one or more of the
3044penalties set forth in subsection (5) if the department finds that a charitable
3057organization, . . . has:
3062(a) Violated or is operating in violation of any of the provisions of ss.
3076496.401-496.424 or of the rules or orders issued thereunder;
3085* * *
3088(5) Upon a finding as set forth in subsection (4), the department may
3101enter an order doing one or more of the following:
3111(a) Imposing an administrative fine not to exceed $1,000 for each act or
3125omission which constitutes a violation of ss. 496.401-.424 or a rule or order.
3138The language in section 496.419(5) is substantially different from the
3148language in section 501.019(4)(c), and the interpretation of section
3157496.419(5)(a) to permit imposition of the maximum fine for each day on which an
3171unregistered charitable organization solicits contributions does not support the
3180Department's interpretation that section 501.019(4)(c) likewise permits
3187imposition of the maximum fine for each day on which a health studio operates
3201without being registered.
3204APPENDIX
3205The following rulings are made on the petitioner's proposed findings of
3216fact:
3217Paragraphs 1, 3-4, 8-14, 16-24, and 27-31: Adopted and incorporated in
3228substance but not verbatim in paragraphs 2-14.
3235Paragraphs 6, 7, and 15: Accepted but not incorporated in the findings of
3248facts because subordinate to the facts as found or unnecessary to resolution of
3261the issues presented.
3264Paragraph 5: Rejected as not supported by competent evidence and as
3275unnecessary.
3276Paragraphs 2, 25 and 26: Adopted and incorporated in substance but not
3288verbatim in paragraphs 2, 11 and 12 except to the extent proposed findings of
3302fact are subordinate or unnecessary.
3307The respondent did not submit proposed findings of fact and conclusions of
3319law.
3320COPIES FURNISHED:
3322S. Bruce Beattie, II, Owner
3327Paradise Gym
33291236 South Dixie Highway
3333Coral Gables, Florida 33146
3337Lawrence J. Davis, Senior Attorney
3342Department of Agriculture and
3346Consumer Services
3348515 Mayo Building
3351Tallahassee, Florida 32399-0800
3354Richard Tritschler, General Counsel
3358Department of Agriculture and
3362Consumer Services
3364The Capitol, PL-10
3367Tallahassee, Florida 32399-0810
3370The Honorable Bob Crawford
3374Commissioner of Agriculture
3377The Capitol, PL-10
3380Tallahassee, Florida 32399-0792
3383NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
3389All parties have the right to submit written exceptions to this recommended
3401order. All agencies allow each party at least ten days in which to submit
3415written exceptions. Some agencies allow a larger period within which to submit
3427written exceptions. You should contact the agency that will issue the final
3439order in this case concerning agency rules on the deadline for filing exceptions
3452to this recommended order. Any exceptions to this recommended order should be
3464filed with the agency that will issue the final order in this case.
- Date
- Proceedings
- Date: 10/04/1996
- Proceedings: (Petitioner) Consent Order; Joint Settlement Stipulation for Consent Order filed.
- Date: 07/17/1996
- Proceedings: Final Order filed.
- Date: 04/25/1996
- Proceedings: Petitioner`s Exceptions filed.
- Date: 01/05/1996
- Proceedings: Petitioner`s Proposed Recommended Order filed.
- Date: 01/04/1996
- Proceedings: (Transcript) filed.
- Date: 12/12/1995
- Proceedings: Post Hearing Order sent out.
- Date: 12/11/1995
- Proceedings: (Petitioner) Notice of Complying With Request filed.
- Date: 12/07/1995
- Proceedings: (Petitioner) Motion to Amend Pleading filed.
- Date: 11/29/1995
- Proceedings: (Petitioner) Exhibits filed.
- Date: 11/27/1995
- Proceedings: (Petitioner) Notice of Filing Discovery filed.
- Date: 11/14/1995
- Proceedings: Notice of Hearing sent out. (Video Hearing set for 12/11/95; 9:30am;Tallahassee & Miami)
- Date: 11/14/1995
- Proceedings: Order of Prehearing Instructions sent out.
- Date: 11/02/1995
- Proceedings: (Petitioner) Joint Response to Initial Order filed.
- Date: 10/27/1995
- Proceedings: Initial Order issued.
- Date: 10/24/1995
- Proceedings: Agency Action Letter; Agency referral letter; Request for Administrative Hearing, letter form filed.
Case Information
- Judge:
- PATRICIA M. HART
- Date Filed:
- 10/24/1995
- Date Assignment:
- 10/27/1995
- Last Docket Entry:
- 10/04/1996
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO