STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )

) Case Nos. 99-1913

Petitioner, ) 99-2646

) 99-2647

v. )

) DODGE CITY PONY AND KIDDIE ) RIDES, INC., )

)

Respondent. )

)

FINAL ORDER

On March 29, 1999, May 24, 1999, and June 3, 1999, Petitioner filed Proposed Settlement Agreement and Administrative Complaints (each hereafter described as Complaint) charging Dodge City Pony and Kiddie Rides, Inc., with violations of

§616.242(7)(a) and (l9)(a)1.d., Florida Statutes.

The March 29, 1999 Complaint charged that on February 14, 19991 at the Calle Ocho (Eighth Street) Festival Respondent illegally operated four amusement rides (a Ferris Wheel, a Castlemania, a Circus Merry Go Round, and a Dinomania) owned by them which did not have inspection certificates and had not been inspected by Petitioner as required by s. 616.242(7)(a) and (19)(a)1 .d. This incident is hereafter referred to as "Calle Ocho," and was assigned DOAH Case No. 99-1913. It was ordered amended on October 26, 1999 to correct a scrivener's error to show the violation date as Sunday, March 24, 1999 and not February 14, 1999.

The May 24, 1999 Complaint charged that on May 15, 1999 at the Miramar Days Event (Mirarnar) Respondent illegally 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) owned by it which did not have inspection certificates and had not been inspected by Petitioner as required by s. 616.242(7)(a) and (19)(a)l.d. This incident is hereafter referred to as "Miramar," and was assigned DOAH Case No. 99-2647.

The June 3, 1999 Complaint charged that on May 29, 1999 at the Great Sunrise Balloon Race in Homestead, Florida Respondent

illegally operated three amusement rides (a Rock & Roll, a Frolic/Space Orbiter, and a Crazy Cars) owned by them which did not have inspection certificates and had not been inspected by Petitioner as required by s. 616.242(7)(a) and (19)(a)1.d. This incident is hereafter referred to as "Homestead," and was assigned DOAH Case No. 99-2646.

Case Nos. 99-1913, 99-2646, and 99-2647 were ordered

consolidated on July 8, 1999. On December 10, 1999, a formal hearing was held in the above-styled case, by video teleconference, with sites Tallahassee and Miami, Florida, before Administrative Law Judge William J. Kendrick, who issued his Recommended Order on February 29, 2000.

The Recommended Order upheld the charges of Petitioner with the following exceptions: (a) no violations of S. 616.242(7)(a), Florida Statutes, were found at Calle Ocho for the operation of Castlemania and Dinomania because such rides were held to be exempt under the provisions of s. 616.242(10)(a), Florida Statutes and (b) no violation of s. 616.242(7)(a), Florida Statutes, was found at Miramar for the operation of Dinomania because such ride was held to be exempt under the provisions of

1. 616.242(7)(a), Florida Statutes. This resulted in a total administrative fine of $27,500.00 being imposed, i.e., $2500 per violation (A Ferris Wheel and a Circus Merry Go Round at Calle Ocho for $5000; a Circus Merry-Go-Round, a Crazy Cars, a Kiddie Train, a Helicopters, a Rock and Roll, and a Giant Slide at Miramar for $15,000; and a Rock and Roll, a Frolic/Space Orbitor, and a Crazy Cars at Homestead for $7,500). The Administrative Law Judge also upheld the one year suspension sought by Petitioner for the rides he found to be in violation of the law.

   
   

   Petitioner" or "Department", submitted its exceptions to the Recommended Order related to the findings of fact, conclusions of law and recommended fine and penalties as they apply to the Dinomania and Castlemania operated at the Calle Ocho and Miramar. It stated that the Administrative Law Judge who held that Dodge City was entitled to an exemption for the Dinomania and the Castlemania was in error because such a conclusion was not based on competent substantial evidence and that the findings did not comply with the essential requirement of the law. It further stated that the conclusions of law related to the Dinomania and Castlemania should be rejected as the interpretation contained herein with regard to permissible exemptions under Section 616.242, Florida Statutes, is "as or more reasonable than the interpretation" provided by the Recommended Order and accordingly the total administrative fine should be increased to $35,000 and a final order should be entered suspending additional amusement rides, i.e., the Dinomania and Castlemania for a period of one year.

   Petitioner observed in its exceptions that the Recommended Order erred when it stated in pertinent part as follows:

   
   

   1. 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 playground 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.(Sic) 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."

   2. 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 playground 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. (Emphasis supplied)

      
      

   3. 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.

1. 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. (Calle Ocho event).

   
   

2. However, Respondent's operation of the Dinomania, without 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. (Miramar event).

Petitioner concluded in its exceptions that such constitutes a complete disregard of evidence submitted by the Petitioner on the issue of the exemption of the Dinomania and the Castlemania and a departure from the essential requirements of the law and that the findings of fact and conclusions of law that the Dinomania and Castlemania are exempt from setup inspections is contrary to law, contrary to the evidence of record, contrary to the Administrative Law Judges own prior ruling as contained in evidence of a prior proceeding, disregards principles of collateral estoppel, and usurps the rule making authority provided by law to the Department.

Petitioner then sought to demonstrate that the record reflects the following relevant testimony, evidentiary exhibits and transcript excerpts of the proceeding related to the Dinomania and Castlemania are in direct contradiction to the statement of the Administrative Law Judge "and the Department has offered none to the contrary." Those observations are contained at Items 1.-9. of Petitioner's Exceptions and are not repeated here.

Respondent, through its legal counsel, in its undated exceptions, raises four specific claims: (a) it claims that the Miramar Days Event was not a private event, (b) it claims that the Crazy Cars amusement ride operated at Homestead did not have a capacity of 12 persons (rather, it had a capacity of six or eight seats, (c) it claims that the Little Kiddie Ferris Wheel had a capacity of no more than eight persons, and (d) it claims that the administrative fine and suspension are excessive and would result in forcing Respondent to close its business.

Respondent's President, Wallace Stevens, subsequently submitted to the Commissioner of Agriculture a letter dated March 16, 2000, which did not formally reference this case by style or otherwise. It reiterated the issues raised in the formal exceptions filed by

Respondent's counsel and contended further that "the rides are too small and operate too slow to endanger the public" and "that there should only be one or two inspections a year." For purposes of this Final Order, this document shall be treated as additional exceptions.

After a complete review of the record, including the transcript of the hearing, the Department accepts the reasoning of the Administrative Law Judge, except for the conclusions reached with respect to the Castlemania and Dinomania rides. The Department furthermore rejects the additional non-repetitive exceptions. Amusement rides are a danger to the public, especially small children, regardless of the size or speed of the ride. Also, Respondent's desire for one or two inspections a year only would require legislative action. It therefore rejects the exceptions filed by Respondent and accepts generally those filed by Petitioner. While the Dinomania and Castlemania contain some equipment which may be found in playgrounds or equipment that may be specifically exempt, these isolated pieces of equipment are not the amusement ride. The amusement ride is the large mobile structure containing exempt and nonexempt components.

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." Section 616.242(3)(a), Fla. Stat. (1998 Supp.). The Dinomania and Castlemania meet the definition of an amusement ride because they are combination devices.

The Recommended Order holds that the Dinomania and Castlemania are nonetheless exempt from the setup inspection requirements because each is a "[n]onmotorized playground equipment that is not required to have a manager". Subsection 616.242(10)(a)7, Fla. Stat.(1998 Supp.). Subsection 616.242(10)(a)2, Fla. Stat.(1998 Supp.), states that "[a]ny playground operated by a school, local government, or business licensed under chapter 509" is exempt from regulation by the Department "if the playground is an incidental amenity in providing amusement, pleasure, thrills, or excitement." While the subsection does not define a playground. the common ordinary meaning would apply. It has been primarily defined as a piece of land used for and usually equipped with facilities for recreation especially for children." See Webster's Collegiate Dictionary, 10th Ed., P. 893. The amusement devices used by Respondent are not incidental amenities associated with any playground operated by a school, Local government, or business licensed under Chapter 509.

The Administrative Law Judge in his Recommended Order did set out why he departed from his prior adjudication with respect to the Dinomania that it requires a permit inspection and a setup inspection. A conclusion that the Dinomania and Castlemania contained only a "ball crawl" and other "nonmotorized playground equipment," where the uncontroverted testimony established that the equipment was contained in a large structure with railings on a mobile platform with wheels designed for transporting over the public roads of the state is clearly erroneous and departs from established agency policy with regard to such nonmotorized combination amusement rides.

The Recommended Order also conflicts with and usurps the rule making authority of the Department as contained in Section 616.242(10)(b), F.S., which states:

The department may, by rule, establish exemptions from this section for nonmotorized or human-powered rides or coin-actuated amusement rides.

The Recommended Order fails to recognize that rule making with respect to "nonmotorized" amusement rides is solely within the authority of the Department. Absent rule making on any combination "nonmotorized" amusement ride, such rides are not exempt and require permit inspection as well as setup inspections.

The Administrative Law Judge has impliedly rejected the interpretation given by the Department to the exemption granted by Section 616.242(1 0)(a)7, Florida Statutes. The interpretation give by the Department to this section as to the scope of the exemption is, contrary to the opinion of the Administrative Law Judge, adequately supported by the record and is a reasonable interpretation. See Ganson v. State, Dept. of Admin., 554 So. 2d 516 (Fla. 1st DCA 1989).

Respondent's claims that the Dinomania and Castlemania are exempt are not supported by the record and these rides cannot be reasonably considered playground equipment. All of Respondent's rides are designed for mobile transport and may become unsafe while being transported to the event site.

The Recommended Order overturns the statutory interpretation given by the Department to the exemption stated in

§616.242(10)7, F.S., that playground equipment is of the type normally affixed to a playground, i.e., merry-go-round, slide, etc. The Dinomania and CastLemania are unique structures manufactured by Respondent and are only found at events when

rented from Respondent. The interpretation given by the agency of the scope of the exemption under §616.242(10)7, F.S., is reasonable. The failure of the Administrative Law Judge to defer to the Department's interpretation of the scope of the exemption was error. See Republic Media, Inc. v. Dept. of Transp., 714 So. 2d 203 (Fla. 5th DCA 1998).

The total administrative fine should be increased to

$35,000 and a final order should be entered suspending all of the cited amusement rides, including Ferris Wheel, Circus Merry Go Round, Crazy Cars, Kiddie Train, Helicopters, Rock and Roll, Giant Slide, Frolic/Space Orbitor, Dinomania and Castlemania, for a period of one year.

Accordingly, it is ordered and adjudged that:

1. An administrative fine in the total sum of $35,000 be imposed;

   
   

2. The administrative fine in the total sum of $35,000 shall be paid within fifteen (15) days of this order; and

   
   

3. The Ferris Wheel, Circus Merry Go Round, Crazy Cars, Kiddie Train, Helicopter, Rock and Roll, Giant Slide, Frolic/Space Orbitor, Dinomania, and Castlemania rides be suspended from use for one year from the date of this order.

DONE AND ORDERED this 25th day of April, 2000 at Tallahassee, Florida.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

BY: TERRY L. RHODES

Assistant Commissioner

Florida Department of Agriculture and Consumer Services

Filed with the Agency Clerk this 25th day of April, 2000.

HARRY C. BOSEMAN

Agency Clerk

ENDNOTE

1/ This was later corrected to March 24, 1999 by an Order dated October 26, 1999.

Copies to:

Division of Administrative Hearings William N. Graham, Esquire

Thomas J. McCausland, Esquire Richard D. Tritschler, Esquire

Docket for Case No: 99-002646

Orders for Case No: 99-002646