19-005832 Department Of Agriculture And Consumer Services vs. Vladimir Magloire, D/B/A Adrenaline Fitness Studio Status: Closed Recommended Order on Monday, February 24, 2020.

Summary: Respondent offered health studio services for sale at an unregistered business location, in violation of section 501.015(1), Florida Statutes; recommend imposition of $1,000 fine.

S TATEMENT OF T HE I SSUE S

The issue s in this case are whether , as Petitioner has charged,

R espondent offered for sale training in a program of physical exercise , or

the right or privilege to use equipment in furtherance of a program of

physical exercise , at an unregistered business location , in violation of

section 501.015(1) , Florida S tatutes; and , if so, whether a penalty should be

imposed .

P RELIMINARY S TATEMENT

On September 12, 2019, Petitioner Department of Agriculture and

Consumer Services ("Department" ) issued an Administrative Complaint

against Respondent Vladimir Magloire ("Magloire") , charging him with

offering health studio services at an unregistered business location, in

violation of section 501.015(1) . Magloire timely requested a formal hearing t o

determine his substantial interests . The Department referred the matter to

DOAH on November 1, 2019 , and the undersigned scheduled the final

hearing for January 8, 2020.

The hearing took place as scheduled, with both parties present. The

Department call ed one witness, an investigator named Amanda Hazlett .

Petitioner's Exhibits A, B, C, D, E, and F were received in evidence . Magloire

testified on his own behalf and offered no exhibits.

The final hearing was recorded but not transcribed . The Department

timely filed a Proposed Recommended Order ahead of the deadline, which

was February 3, 202 0 . Magloire did not submit a proposed order .

U nless otherwise indicated, citations to the official statute law of the

State of Florida refer to Florida Statutes 201 9 .

F INDINGS OF F ACT

1 . The Department is the state agency responsible, among other things,

for administering the laws regulating health studios . For purposes of

circumscribing the Department’s jurisdiction, the term health studio “means

any person who is engaged in the sale of services for instruction, training, or

assistance in a program of physical exercise or in the sale of services for the

right or privilege to use equipment or facilities in furtherance of a program of

physical exercise. ” § 501.0125(1) , Fla. Stat.

2 . Ma gloire is a person who meets the definition of a “ health studio ”

subject to the Department’s regulatory jurisdiction.

3 . During the period from, roughly, December 2018 until December 2019,

Magloire operated a gym under the name “Adrenalin e Fitness,” which was

located at 3700 Northwest 124th Avenue, Coral Springs, Florida (the “Gym”) .

There is no dispute that Magloire allowed persons to use equipment or

facilities at the Gym for the purpose of physical exercise . It is also undisputed

that Magloire never registered the Gym with the Department , which would

have been required if the Gym were a “business location. ” See § 501.015, Fla.

Stat.

4 . A health studio constitutes a “business location” if “studio services” are

performed onsite . The term studio services “ means privileges or rights offered

for sale or provided by a health studio. ” § 501.0125(2), Fla. Stat.

5 . Magloire maintains that the Gym was a “private facility” where

services were not “offered for sale” to the public, but rather were made

available as a convenience to his personal friends and acquaintances . The

relevant distinction here, however, is not between private and public

facilities, per se, but between commercial and noncommercial gyms . A

homeowner who installs exercise equipment in his garage for personal use

and invites a few friends over for a workout once in a while does not thereby turn his home into a “business location. ” Magloire’s Gym did not involve this

kind of obviously personal , noncommercia l use.

6 . Magloire testified that many of the persons who worked out at the Gym

did not pay him with money for the privilege, although a few did ,

occasionally, tender cash ; the undersigned accepts this as true . Magloire

admitted, however, that he received other valuable consideration from

guests, such as services, in exchange for his letting them use the Gym’s

equipment and facilities .

7 . The undersigned determines as a matter of ultimate fact , based on clear

and convincing evidence, that the Gym constitut ed a “business location”

where “studio services” were “offered for sale.” Magloire , therefore , was

required to register the Gym with the Department pursuant to

section 501.015(1), which he failed to do, in violation of the law.

C ONCLUSIONS O F L AW

8 . DOAH has personal and subject matter jurisdiction in this proceeding

pursuant to sections 120.569 and 120.57(1), Florida Statutes .

9 . The Department charged Magloire, in his capacity as a health studio,

with the operation of an unregistered business location, in violation of

sect ion 501.015(1) .

10 . Section 501.015(1) provides that each health studio shall “[r] egister

each of its business locatio ns with the [D] epartment in a form and manner as

required by the [D] epartment .”

11 . A proceeding to impose discipline , such as this one, i s penal in nature .

State ex rel. Vining v. Fla. Real Estate Comm'n , 281 So. 2d 487, 491

(Fla. 1 973) . Accordingly, the Department must prove the charges against

Magloire by clear and convincing evidence . Dep't of Banking & Fin., Div. o f

Sec. & Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 933 - 34

(Fla. 1996) (citing Ferris v. Turlington , 510 So. 2d 292, 294 - 95 (Fla. 1987));

Nair v. Dep't of Bus. & Prof'l Reg., Bd. of Med. , 654 So. 2d 205, 207 (Fla. 1st

DCA 1995).

12 . Regarding the standard of proof, in Slomowitz v. Walker , 429 So. 2d

797, 800 (Fla. 4th DCA 1983), the court developed a "workable definition of

clear and convincing evidence" and found that of necessity such a definition

would need to contain "both qualitative and quantitative standards. ” The

court held that:

[C] lear and convincing evidence requires that the

evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and

explicit and th e witnesses must be lacking in

confusion as to the facts in issue . The evidence

must be of such weight that it produces in the mind

of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations

sought to be establi shed.

Id . The Florida Supreme Court later adopted the Slomowitz court's

description of clear and convincing evidence . See In re Davey , 645 So. 2d 398,

404 (Fla. 1994) . The First District Court of Appeal also has followed the

Slomowitz test, adding the interpretive comment that "[a]lthough this

standard of proof may be met where the evidence is in conflict, … it seems to

preclude evidence that is ambiguous. ” Westinghouse Elec. Corp. v. Shuler

Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st D CA 1991), rev. denied , 599 So. 2d

1279 (Fla. 1992) (citation omitted).

13 . As reflected in the findings above, the Departmen t carried its burden

of proving, by clear and convincing evidence, that Magloire failed to register a

b usiness location , and thus th at he is guilty, as charged, of violating

section 501.015(1).

14 . Section 501.019(4)(a)1. authorizes the Department to “e nter an order

imposing one or more of the penalties set forth in

the [D] epart ment finds that a health studio ” has “[v]i olated or is operating

in violation of any of the provisions of ” part I of chapter 501 . Section

501.019(4)(b )2. provides that “[f]or a violation of s. 501.015 or s. 501.016,

[the Department may enter an order] imposing an administrative fine in the

Class II category pursuant to s. 570.971 for each violation. ”

15 . For a violation in the Class II category, “ a fine not to exceed $5,000

may be imposed. ” § 570.971(1)(b), Fla. Stat.

16 . Under the Department’s penalty guidelines, the failure to comply

with section 501.015(1) is classified as a “major violation. ” Fla. Admin. Code

R. 5J - 4.015 (8)(c) . “ Major violations shall result in the imposition of an

administrative fine of $1,000 to $5,000, denial, suspension, or revocation of

the license . ” Id .

17 . Th e Department inten ds to impose a fine of $1,000 , if Magloire is

found guilty . Because this sum is the minimum monetary penalty that will be

imposed for a major violation , and because the imposition of a fine is the least

restrictive sanction available with in the range of penalties that will be

imposed for a major violation, it is unnecessary to consider aggravating factors , which afford grounds for increasing a penalty .

18 . The mitigating factors, which might justify a reduction in the penalty,

are specifi ed in Florida Administrative Code Rule 5J - 4.015(5)(b) . Of these,

only one is present: “The violator has a low risk of, or did not result in, harm

to the public health, safety, or welfare. ” Consideration of this factor warrants

the imposition of a fine at the bottom of the range, i.e., $1,000, which is what the Department has urged.

R ECOMMENDATION

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

R ECOMMENDED that the Department of Agriculture and Consumer Services

enter a final order imposing a fine of $1,000 against Magloire for providing studio s ervices at an unregistered business location in violation of section

501.015(1) , Florida Statutes.

D ONE A ND E NTERED this 2 4 t h day of February , 2020, in Tallahassee, Leon

County, Florida.

J OHN G. V AN L ANINGHAM

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 2 4 t h day of February, 2020 .

C

OPIES F URNISHED :

Genevieve Hal 1 , Esquire

Amanda B. McKibben , Esquire

Department of Agriculture and Consu mer Services

40 7 Calhoun Street, Suite 520

Ta llahassee, Florida 3 2 399 - 0800

(eServed)

Vladimir Magloire

Adrenaline Fitness Studio

10370 Northwest 40th Place

Coral Springs, Florida 33065

(eServed)

Tom A. Steckler, Director

Division of Consumer Services

Department of Agriculture and

Consu mer Services

Mayo Building, Room 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

N OTICE O F R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order . Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.