STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

)

Petitioner, )

)

vs. ) Case No. 99-1710

)

TOLVE PRESENTATIONS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted on July 20, 1999, in Tallahassee, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: William N. Graham, Esquire

Office of General Counsel

Florida Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated Section 616.242(7)(a) and (19)(a)1.d, Florida Statutes (1997), by operating three amusement rides in the state without required inspections. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).

PRELIMINARY STATEMENT

By letter dated January 20, 1999, Petitioner notified Respondent that Petitioner intended to impose an administrative

fine against Respondent pursuant to Chapter 616, Part II, Florida Statutes (1998 Supp.). Respondent timely requested an administrative hearing.

On April 12, 1999, Petitioner referred the matter to the Division of Administrative Hearings ("DOAH") to conduct an administrative hearing. The matter was assigned to the undersigned and scheduled for hearing on July 20, 1999.

At the hearing, Petitioner presented the testimony of two witnesses and submitted three exhibits for admission in evidence. Respondent did not appear and did not submit any evidence.

The identity of the witnesses and exhibits, and any attendant rulings, are set forth in the transcript of the hearing filed on August 5, 1999. Petitioner timely filed its Proposed Recommended Order ("PRO") on August 12, 1999. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for permitting, inspecting, and regulating amusement rides in the state. Respondent owns and operates amusement rides in the state.

2. On November 24, 1998, an inspector for Petitioner inspected 14 amusement rides operated by Respondent at Our Lady of Guadalupe Church in Immokalee, Florida. The inspector did not inspect four additional rides because they were neither erected nor ready for inspection by the time the inspections of the 14 other rides were completed.

3. The four rides that were not inspected by Petitioner were the Flying Bobs, the Bumper Cars, the Tilt a Whirl, and the Sky Diver. The inspector informed Respondent that Respondent could not operate these four rides until an inspection was completed.

4. On November 28, 1998, Respondent operated A Flying Bobs, the Bumper Cars, and the Tilt a Whirl at Our Lady of Guadalupe Church in Immokalee, Florida in violation of Section 616.242(7)(a) and (19)(a)1.d. The violations are serious and constitute major violations. Operation of the rides without inspection presents a reasonable danger of injury or death.

5. The violations committed by Respondent were intentional violations. Petitioner had instructed Respondent not to operate the rides until they had passed inspection. Respondent has operated in the state for approximately four years, owns a number of rides, and knew or should have known of the inspection requirements and procedures applicable in Florida.

6. On November 27, 1998, Respondent had requested an inspection of the four rides not inspected on November 24, 1998. No inspectors were available. Respondent operated three of the rides on November 28, 1998, without the required inspections.

   
   

   CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. The parties received

   adequate notice of the administrative hearing. Section 120.57(1).

8. The burden of proof is on Petitioner. Florida Department of Transportation vs. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Petitioner must satisfy its burden of proof by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

9. Petitioner satisfied its burden of proof. The evidence was clear and convincing that Respondent operated three amusement rides on November 28, 1998, without required inspections in violation of Section 616.242(7)(a). An eyewitness rode on one of the rides and observed the other rides in operation.

10. Section 616.242(19)(a) authorizes Petitioner to suspend an amusement ride permit or inspection certificate for up to one year and impose an administrative fine not to exceed $2,500 per day for each violation of Section 616.242(7)(a). Petitioner seeks an administrative fine of $2,500 and suspension of Respondent's permit to operate the three rides at issue in this proceeding for one year. The fine and penalty are reasonable in light of the willful and intentional nature of the violation and the danger it presented to the public.

RECOMMENDATION

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

RECOMMENDED that Respondent enter a Final Order finding that on November 28, 1998, Respondent operated three amusement rides without inspection in violation of Section 616.242(7)(a), imposing an administrative fine of $2,500, and suspending Respondent's permit to operate those three rides in the state for one year.

DONE AND ENTERED this 1st day of September, 1999, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1999.

COPIES FURNISHED:

Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture

and Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0800

William N. Graham, Esquire Office of General Counsel Department of Agriculture

and Consumer Services Room 515, Mayo Building

Tallahassee, Florida 32399-0800

John Tolve, Jr.

Tolve Presentations, Inc.

269 Orient Way

Lyndhurst, New Jersey 07071

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 99-001710

Orders for Case No: 99-001710