STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case Nos. 99-1913

) 99-2646

DODGE CITY PONY AND KIDDIE RIDES, ) 99-2647

INC., )

)

Respondent. )

_ )

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on December 10, 1999, by video teleconference, with sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: William N. Graham, Esquire

Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

For Respondent: Thomas J. McCausland, Esquire

Law Office of Bohdan Neswiacheny

540 Northeast Fourth Street Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Department of Agriculture and Consumer Services (Department) filed three Administrative Complaints against Respondent, which charged it with various violations of Section 616.242, Florida Statutes. The first Administrative Complaint, as amended, (DOAH Case No. 99-1913), dated March 29, 1999, charged that:

On Sunday, March 14, 1999, at the Calle Ocho (Eighth Street) Festival, sponsored by the Kiwanis Club of Little Havana in Miami, Florida, an inspector from the Bureau of Fair Rides Inspection found Dodge City operating four amusement rides: a ferris wheel (USAID NO:3541), a Castlemania (USAID No:2835), a Circus Merry Go Round (USAID NO:4408) and a Dinomania (USAID NO:4057), which were owned by Dodge City. Said amusement rides did not have an inspection certificate and were not inspected by the Department as is required by Section 616.242(7)(a), Florida Statutes, in violation of Section 616.242(7)(a) and (19)(a)1.d., Florida Statutes.

The second Administrative Complaint (DOAH Case No. 99-2647), dated May 24, 1999, charged that:

On Saturday, May 15, 1999, at the Miramar Days Event in Miramar, Florida, Dodge City operated eight amusement rides: a Ferris Wheel, a Dinomania, a Circus Merry Go Round,

a Crazy Cars, a Kiddie Train, a Helicopters, a Rock and Roll, and a Giant Slide, all of which were owned by Dodge City. Said amusement rides did not have an inspection certificate and were not inspected by the Department as is required by Section 616.242(7)(a), Florida Statutes, in violation of Section 616.242(7)(a) and (19)(a)1.d., Florida Statutes.

Finally, the third Administrative Complaint (DOAH Case No. 99-2646), dated June 3, 1999, charged that:

On Saturday, May 29, 1999, at the Great Sunrise Balloon Race in Homestead, Florida, Dodge City operated three amusement rides: a Rock & Roll (USAID 05346), a Frolic/Space Orbiter (USAID 4407), and a Crazy Cars (USAID 04406), all of which were owned by Dodge City. Said amusement rides did not have an inspection certificate and were not inspected by the Department as is required by Section 616.242(7)(a), Florida Statutes, in violation of Section 616.242(7)(a) and (19)(a)1.d., Florida Statutes.

Respondent filed a request for hearing whereby it contested the material facts alleged in each Administrative Complaint and requested a formal hearing. Respondent also alleged that two of the rides at the Calle Ocho Festival (the Castlemania and Dinomania) were exempt pursuant to Section 616.242(10)(a)7, Florida Statutes; that the amusement rides at the Miramar Days Event were exempt pursuant to Section 616.242(7)(a)1, Florida Statutes; and that the amusement rides at the Homestead Event were exempt pursuant to Section 616.242(7)(a)2, Florida Statutes. Given Respondent's request for hearing, the

Department forwarded each complaint to the Division of Administrative Hearings (DOAH) for the assignment of an administrative law judge to conduct the hearing Respondent had requested, and upon filing with DOAH they were, as heretofore noted, assigned DOAH Case Nos. 99-1913, 99-2646, and 99-2647. By Order of July 8, 1999, the cases were consolidated.

At hearing, Petitioner (Department) called Jerry Allen Winters, John Castilonia, Gayle Gulotta, and Isadore F. Rommes, as witnesses, and Petitioner's Exhibits 1 through 11 and 13 through 16 were received into evidence. 1/ Respondent called Wallace Stevens and Eugene Daly, as witnesses, and Respondent's Exhibits 1 through 8 were received into evidence. 2/

A transcript of the hearing was filed on January 31, 2000, and the parties were initially accorded until February 10, 2000, to file proposed recommended orders; however, at the parties' request the time was extended to February 21, 2000.

Consequently, the parties waived the requirement that a recommended order be rendered within 30 days after the transcript has been filed. Rule 28-106.216(2), Florida Administrative Code. The parties elected to file such proposals and they have been duly considered.

FINDINGS OF FACT

The parties

1. Petitioner, Department of Agriculture and Consumer Services (Department), is a state agency charged with the duty and responsibility of regulating, permitting, and inspecting amusement rides, pursuant to the laws of the State of Florida, in particular, Section 616.242, Florida Statutes, and the rules promulgated pursuant thereto.

2. Respondent, Dodge City Kiddie and Pony Rides, Inc., is a Florida corporation, with its principal place of business at 16330 Southwest 147th Avenue, Miami, Dade County, Florida.

3. Respondent owns, operates, and rents temporary amusement rides which are subject to inspection, testing, and permitting by the Department, pursuant to Section 616.242, Florida Statutes. These amusement rides, consisting primarily of small "kiddie" rides and attractions, are principally provided for private events, such as birthday parties and company picnics, which are not open to the general public. Occasionally, however, Respondent provides amusement rides for events that are open to the public.

   Industry regulation/safety standards for amusement rides

   
   

4. Section 616.242, Florida Statutes, establishes the inspection and permitting requirements for operation of

   temporary amusement rides in the state. Subsection 616.242(3), provides the following useful definitions:

   1. "Amusement ride" means any building, structure, or mechanical device or combination thereof through which a patron moves, walks, or is carried or conveyed on, along, around, over, or through a fixed or restricted course or within a defined area for the purpose of giving its patrons amusement, pleasure, thrills, or excitement.

      
      

      * * *

      
      

      1. "Kiddie ride" means an amusement ride designed primarily for use by patrons up to

         12 years of age.

      2. "Kiddie train" means a train designed as a kiddie ride which is operated on a flat surface or flat track, carries no more than

      14 patrons, and does not exceed a speed of 3 miles per hour.

      
      

      * * *

      
      

      (o) "Private event" means an event that is not open to the general public and where no admission is charged.

      
      

      * * *

      
      

      (s) "Temporary amusement ride" means an amusement ride that is regularly relocated, with or without disassembly.

      
      

5. Pertinent to this case, operation of any temporary amusement ride in this state without an "inspection certificate," which indicates that the amusement ride has undergone and passed the inspection required after setup, is prohibited unless the amusement ride is exempted. Section

616.242(7)(a), Florida Statutes. Exemption from the inspection required after setup is as follows:

. . . each temporary amusement ride must be inspected by the department in accordance with subsection (11), and must receive an inspection certificate each time the ride is setup or moved to a new location in this state unless the temporary amusement ride is:

1. Used at a private event;

2. Used at a public event when there are no more than three amusement rides at the event, and the capacity of each amusement ride at the event does not exceed eight persons;

   
   

   * * *

   
   

3. A kiddie train used at a public event if there are no more than three amusement rides at the event.

Section 616.242(7)(a), Florida Statutes. Also exempted from the permitting and inspection requirements of Section 616.242, are the following amusement devices:

1. . . . inflatable rides . . . ball crawls

   
   

   * * *

   
   

   7. Nonmotorized playground equipment that is not required to have a manager.

   
   

   Section 616.242(10)(a), Florida Statutes.

   
   

   The Calle Ocho Festival (DOAH Case No. 99-1913)

   
   

2. On Sunday, March 14, 1999, at the Calle Ocho (Eighth Street) Festival, a public event sponsored by the Kiwanis Club of Little Havana in Miami, Florida, Respondent operated four

   temporary amusement rides: a Little (Kiddie) Ferris Wheel, with a capacity of up to 10 persons (children); a Castlemania, with a capacity in excess of 8 persons; a Circus Merry-Go-Round, with a capacity of up to 8 persons; and a Dinomania, with a capacity in excess of 8 persons. Although each amusement ride had a current annual permit, Respondent had not requested or received an inspection by the Department prior to operation and the rides had not received an inspection certificate.

3. Regarding such failing, Respondent contends that the Castlemania and Dinomania (essentially identical amusement devices), are playhouses that contain two slides (tubes), a ball crawl and a rope climb, and are, as a "ball crawl" or "nonmotorized playgound equipment that is not required to have a manager," exempt from the permitting and inspections of Section 616.242, Florida Statutes. See Section 616.242(10)(2)(5), and (7), Florida Statutes. Consequently, Respondent asserts, it was not required to have a setup inspection or certificate for the Calle Ocho Festival because "there were no more than three amusement rides at the event [regulated by the Department] and the capacity of each amusement ride at the event . . . [did] not exceed eight persons."

4. Here, Respondent has offered compelling proof, and the Department has offered none to the contrary, that the Castlemania and Dinomania contain only a "ball crawl" and other

   "nonmotorized playgound equipment". Consequently, Respondent has demonstrated that such equipment was exempt from the permitting and inspection requirements of Section 616.242, Florida Statutes, and that (exempting those rides) it did not have in excess of three amusement rides at the event. 3/ Notwithstanding, since the capacity of the Little Ferris Wheel exceeded eight persons, Respondent was not exempted from the setup inspection or certificate requirements of Section 616.242(7), Florida Statutes, with regard to the Little Ferris Wheel and the Circus Merry-Go-Round.

   The Miramar Days Event (DOAH Case No. 99-2647)

   
   

5. On Saturday, May 15, 1999, at the Miramar Days Event in Miramar, Florida, Respondent operated seven temporary amusement rides: a Dinomania, a Circus Merry-Go-Round, a Crazy Cars, a Kiddie Train, a Helicopters, a Rock and Roll, and a Giant Slide. Although each ride had a current annual permit, Respondent had not requested or received an inspection by the Department prior to operation and the rides had not received an inspection certificate.

6. Regarding the Miramar Days Event, Respondent concedes it operated the seven temporary amusement devices without a setup inspection or inspection certificate; however, it suggests it was exempt from such requirement because the event was "a private event," as opposed to a "public event." Section

   616.242(7)(a)1 and 2, Florida Statutes. Respondent bases such assertion on a conversation its President, Wallace Stevens, had with Gayle Gulotta, the Community Services Supervisor for the City of Miramar, who contracted Respondent's services. 4/ According to Ms. Gulotta, when she discussed the matter with Mr. Stevens, he did inquire as to whether it would be a public or private event, and she told him "it was a private event of the city," but "open to anybody in the city that wanted to participate." (Transcript, pages 65, 66, 70 and 71). Mr.

   Stevens' recollection was similar:

   
   

   . . . I said . . . is this a public or private event. She said private. I said, in other words somebody in the city of Sunrise . . . really is not supposed to come there. She said, that is right. It is for the people of our city . . . .

   
   

7. While Ms. Gulotta may have chosen to describe the Miramar Days Event as a "private event," it should not be subject to serious debate that an event, such as Miramar Days, open to or attended by the people of the community, rather than a private gathering (such as a birthday party or company picnic), is a "public event," 5/ and Mr. Stevens, as an owner and operator of amusement rides, could not have reasonably believed otherwise. Consequently, as a public event, the Circus Merry-Go-Round, Crazy Cars, Kiddie Train, Helicopters, Rock and Roll, and Giant Slide were not exempt for the inspection

   requirements of Section 616.242(7)(a), Florida Statutes; however, the Dinomania was exempt for reasons heretofore discussed.

   The Great Sunrise Balloon Race (DOAH Case No. 99-2646)

   
   

8. On Saturday, May 29, 1999, at the Great Sunrise Balloon Race in Homestead, Florida, a public event, Respondent operated three temporary amusement rides: a Rock and Roll, capacity 8 persons; a Frolic/Space Orbitor, capacity 8 persons; and a Crazy Cars, capacity 12 persons. 6/ Although each ride had a current annual permit, Respondent had not requested or received an inspection by the Department prior to operation and the rides had not received an inspection certificate.

9. Regarding the Great Sunrise Balloon Race, Respondent contends it was exempt from the requirements for setup inspections and inspection certificates because "Respondent operated only three amusement rides at the event and . . . the capacity of any amusement ride at the event did not exceed eight persons."7 (Respondent's Proposed Recommended Order, paragraph 7(2)). Here, the proof is compelling that the capacity of the Crazy Cars was 12 persons and, consequently, Respondent was not exempted from the inspection requirements of Section 616.242(7)(a), Florida Statutes, with regard to the three temporary amusement rides.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings. Sections 120.569 and 120.57(1), Florida Statutes.

11. Where, as here, the Department proposes to impose an administrative fine, the Department bears the burden of proving the charges contained in the Administrative Complaints by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes, and Department of Banking and Finance v. Osborne Stern

    and Co., 670 So. 2d 932 (Fla. 1996). "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 established." Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

12. Moreover, in determining whether Respondent violated the provisions of Section 616.242, as alleged in the Administrative Complaints, one "must bear in mind that it is, in effect, a penal statute . . . . This being true, the statute must be strictly construed and no conduct is to be regarded as included within it that it is not reasonably prescribed by it." Lester v. Department of Professional and Occupational

    Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

13. Pertinent to this case, operation of any temporary amusement ride in this state without an "inspection certificate," which indicates that the amusement ride has undergone and passed the inspection required after setup, is prohibited unless the amusement ride is exempted. Section 616.242(7)(a), Florida Statutes. Exemption from the inspection required after setup is as follows:

    . . . each temporary amusement ride must be inspected by the department in accordance with subsection (11), and must receive an inspection certificate each time the ride is setup or moved to a new location in this state unless the temporary amusement ride is:

    1. Used at a private event;

    2. Used at a public event when there are no more than three amusement rides at the event, and the capacity of each amusement ride at the event does not exceed eight persons;

       
       

       * * *

       
       

    3. A kiddie train used at a public event if there are no more than three amusement rides at the event.

       
       

       Section 616.242(7)(a), Florida Statutes. Also exempted from the permitting and inspection requirements of Section 616.242, are the following amusement devices:

       5. . . . inflatable rides . . . ball crawls

       
       

       * * *

       7. Nonmotorized playground equipment that is not required to have a manager.

       
       

       Section 616.242(10)(a), Florida Statutes.

       
       

14. Here, with regard to DOAH Case No. 99-1913, the proof demonstrated with the requisite degree of certainty, that on March 14, 1999, at the Calle Ocho Festival, Respondent operated two temporary amusement rides (a Little Ferris Wheel and a Circus Merry-Go-Round) without having undergone and passed the inspection required after setup. Moreover, given the nature of the event (public) and the capacity of the Little Ferris Wheel (10 persons), Respondent was not exempted from the requirement for a setup inspection. However, Respondent's operation of the Castlemania and Dinomania, without a setup inspection, did not violate the provisions of Section 616.242(7)(a), Florida Statutes, because such rides were exempt under the provisions of Subsection 616.242(10)(a), Florida Statutes.

15. With regard to DOAH Case No. 99-2647, the proof demonstrated with the requisite degree of certainty, that on May 15, 1999, at the Miramar Days Event, Respondent operated six temporary amusement rides (a Circus Merry-Go-Round, a Crazy Cars, a Kiddie Train, a Helicopters, a Rock and Roll, and a Giant Slide) without having undergone and passed the inspection required after setup. Moreover, given the nature of the event (public) and the number of amusement rides (six), Respondent was

    not exempted from the requirement for setup inspections. However, Respondent's operation of the Dinomania, without inspection, did not violate the provisions of Section 616.242(7)(a), Florida Statutes, because such ride was exempt under the provisions of Subsection 616.242(10)(a), Florida Statutes.

16. Finally, with regard to DOAH Case No. 99-2646, the proof demonstrated with the requisite degree of certainty, that on May 29, 1999, at the Great Sunrise Balloon Race, Respondent operated three temporary amusement rides (a Rock and Roll, a Frolic/Space Orbitor and a Crazy Cars) without having undergone and passed the inspection required after setup. Moreover, given the nature of the event (public) and the capacity of the Crazy Cars (12 persons), Respondent was not exempted from the required setup inspections.

17. Having concluded that Respondent failed to comply with prerequisites of Section 616.242(7)(a), Florida Statutes, prior to operation of amusement rides in the state, it is necessary to address what penalties, if any, should be imposed. In this regard, Subsection 616.242(19) accords the Department the following authority:

    1. The department may deny, suspend for a period not to exceed 1 year, or revoke any permit or inspection certificate. In addition to denial, suspension, or revocation, the department may impose an

       administrative fine of up to $2,500 per violation, per day, against the owner of the amusement ride if it finds that:

       1. An amusement ride has operated or is operating:

    
    

    * * *

    
    

    d. In violation of this section or any rule adopted under this section . . . .

    
    

18. For the violation shown, the Department proposes an administrative fine of $2,500 per violation, per day, as well as a one-year suspension of the permit or inspection certificate for each amusement ride that was operated without a setup inspection. Such proposal would result in an administrative fine for the Calle Ocho Festival of $5,000 (based on two rides: the Little Ferris Wheel and the Circus Merry-Go-Round), an administrative fine for the Miramar Days Event of $15,000 (based on six rides: the Circus Merry-Go-Round, the Crazy Cars, the Kiddie Train, the Helicopters, the Rock and Roll, and the Giant Slide), and an administrative fine for the Great Sunrise Balloon Race of $7,500 (based on three rides: the Rock and Roll, the Frolic/Space Orbitor, and the Crazy Cars) or a total administrative fine of $27,500. Additionally, under the Department's recommendation, the permits for eight of Respondent's amusement rides (the Little Ferris Wheel, the Circus Merry-Go-Round, the Crazy Cars, the Kiddie Train, the

    Helicopters, the Rock and Roll, the Giant Slide, and the Frolic/Space Orbitor) would be suspended for one year.

19. The penalty proposed by the Department is within the permissible range established by Subsection 616.242(19)(a) and given the record in this case, which demonstrates that for each event inspections were unquestionably required, the proposed penalty has not been shown to be arbitrary, capricious, or an abuse of the Department's discretion. See Florida Real Estate Commission v. Webb, 367 So. 2d 201 (Fla. 1978), and Lee v. Division of Florida Land Sales and Condominiums, 474 So. 2d 282 (Fla. 5th DCA 1985). Consequently, there being no apparent reason to deviate from the Department's recommendation, its proposed penalty is accepted as appropriate. Walker v. Department of Business and Professional Regulation, 23 Fla. L. Weekly D292 (Fla. 5th DCA 1998)(Penalty imposed was within agency's statutory authority and would not be disturbed.)

RECOMMENDATION

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

RECOMMENDED that a final order be rendered adopting the foregoing findings of fact and conclusions of law, and which, for the violations found, imposes an administrative fine in the total sum of $27,500 and suspends the permits for eight of Respondent's amusement rides (the Little Ferris Wheel, the

Circus Merry-Go-Round, the Crazy Cars, the Kiddie Train, the Helicopters, the Rock and Roll, the Giant Slide, and the Frolic/Space Orbitor) for one year.

DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

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 29th day of February, 2000.

ENDNOTES

1/ The admissibility of Petitioner's Exhibit 8 was taken under advisement. Upon reflection it is received into evidence over Respondent's objection. Petitioner's Exhibit 12 was rejected.

2/ Respondent's Exhibits 1 through 8 were marked for identification at hearing and Petitioner was accorded an opportunity to review the exhibits post-hearing and to raise any objections it might have to their admissibility. Petitioner raised objection to Respondent's Exhibits 1, 2 and 8. That objection was overruled and Respondent's Exhibits 1 through 8 were received into evidence.

3/ There was testimony offered that there was another amusement event operated by Sunshine Amusements at the Calle Ocho Festival; however, the nature of the amusement(s) they operated or their number is not of record. Consequently, it cannot be resolved with any degree of certainty that, counting the rides

offered by Sunshine Amusements, the total capacity at the event exceeded three rides.

4/ Notably, Respondent provided similar services in each of the preceding four years.

5/ Where as here, the legislature has not defined the words used in a phrase, the language should usually be given its plain and ordinary meaning. Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So. 2d 1351 (Fla. 1984). The American Heritage Dictionary of the English Language, New College Edition (1979) defines "public" as "Of, concerning, or affecting the community or the people . . . Maintained for or used by the people or community: a public park . . .

Participated in or attended by the people or community a public worship . . . Connected with or acting on behalf of the people, community, or government, other than private matters or interests "

6/ At hearing, Mr. Steven's testified that the capacity of the rides he operates is limited by the horsepower of the motors used to operate them (1/4 to 1 horsepower), as well as the weight of the children, and that the capacity of the Rock and Roll, Frolic/Space Orbitor, and Crazy Cars are less than eight persons. (Transcript, pages 112, 113, 123, and 124.) In contrast, Jerry Winters, an Inspection Specialist with the Department, was of the view that the capacity of the Rock and Roll was 8 persons, the capacity of the Space Orbitor was 16 persons, and the capacity of the Crazy Cars was 12 persons. (Transcript, pages 27 and 28.) Here, it is unnecessary to resolve whether the capacity of the Space Orbitor was more than

8 people since Mr. Winters' testimony, as well as the objective proof, demonstrates that the capacity of the Crazy Cars was 12 persons. (Petitioner's Exhibit 10G, Respondent's brochure depicting the Crazy Cars.) Mr. Winters' testimony regarding the capacity of the Little Ferris Wheel at the Calle Ocho Festival has also been credited as most consistent with the objective proof. (Petitioner's Exhibit 10A.)

7/ Of course, notwithstanding Respondent's characterization, the exemption is not based on the number of rides operated by the Respondent. Rather, the temporary amusement ride is exempt from inspection only if "used at a public event when there are no more than three amusement rides at the event, and the capacity of each ride at the event does not exceed eight persons." Here, there was already another ride (a Kiddie Ferris Wheel) owned by a different operator setup and operating when

Respondent arrived at the event. Therefore, even if the capacity of all of Respondent's rides had not exceeded eight persons, Respondent still would not have been exempt from the inspection requirements of Section 616.242(7)(a), Florida Statutes, and to have setup its three rides in the presence of a fourth ride was, at best, reckless.

COPIES FURNISHED:

William N. Graham, Esquire Department of Agriculture and

Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Thomas J. McCausland, Esquire Law Office of Bohdan Neswiacheny

540 Northeast Fourth Street Fort Lauderdale, Florida 33301

Honorable Bob Crawford Commissioner of Agriculture 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 H. Hyatt, Chief Bureau of License and Bond

Department of Agriculture and Consumer Services

Mayo Building, Room 508 Tallahassee, Florida 32399-0800

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: 99-002647

Orders for Case No: 99-002647