The Issue The issues in this case are whether Respondent violated Subsection 616.242(19)(a)1.b., Florida Statutes (2005),1 and, if so, what penalty should be imposed.
Findings Of Fact Royal Fun Time operates a permanent amusement park at Old Town Amusement Park (Old Town), in Kissimmee, Florida. Among the amusement rides housed at Old Town is a ride named "Tilt-a-Whirl." The ride consists of cup-like seats on round platforms that are located on a round base. As the base turns, the seats will also turn on the platforms. Once a person is seated on the ride, a lap bar is placed across the seat to prevent the rider from falling off the ride. On January 16, 2006, Jennifer Christian DeLorme (Ms. DeLorme) visited Old Town with her friends, Joseph and Lisa Ensminger (Mr. and Ms. Ensminger). On the day of their visit, Rick Gayhart was operating the Tilt-a-Whirl. The proper procedure for operating the Tilt-a-Whirl requires the operator to make sure that each patron is seated with the lap bar in place before starting the ride. Ms. DeLorme and Ms. Ensminger bought tickets to ride the Tilt-a-Whirl. Ms. Ensminger got into a seat and urged Ms. DeLorme to find a seat near her. Ms. DeLorme slowly walked around the ride, apparently trying to decide which seat to take. As Ms. DeLorme was attempting to get into a seat, the ride started and dragged her, causing injuries to her elbow, abdomen, and back. People started screaming to stop the ride, and Mr. Gayhart stopped the ride. According to Mr. Gayhart, there is a blind spot on the Tilt-a-Whirl which prevents the operator from observing all the seats when the operator is starting the ride at the control panel. He could not see whether Ms. DeLorme was in her seat because of the blind spot. The management of Royal Fun Time was aware that a blind spot existed, but did not take measures to eliminate the spot. Such measures could have been as simple as placing a mirror near the control panel. After Mr. Gayhart stopped the ride, Mr. Ensminger requested that the manager be notified of the incident. Mike Rivera, an employee of Royal Fun Time, was called and came to the scene a short time later. He talked to Ms. DeLorme and her mother, who insisted that her daughter be taken to a hospital for her injuries. An ambulance was called, and Ms. DeLorme was transported to a hospital. While waiting to be taken to a hospital, Ms. DeLorme did not continue to patronize other rides in the park as claimed by Royal Fun Time. However, Ms. Ensminger did ride amusement rides in the park, while waiting for the ambulance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Royal Fun Time, Inc., violated Subsection 616.242(19)(a)1.b., Florida Statutes, and imposing an administrative fine of $1,000. DONE AND ENTERED this 22nd day of August, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 22nd day of August, 2006.
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).
Findings Of Fact 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. 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. 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. 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. 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. 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.
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
The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact The parties 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. 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. 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 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: "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. * * * "Kiddie ride" means an amusement ride designed primarily for use by patrons up to 12 years of age. "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. 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: Used at a private event; 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; * * * 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: . . . 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) 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. 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." 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) 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. 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 . . . . 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) 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. 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.
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.
Findings Of Fact In April, 1975 Mrs. Wright, an inspector assigned to the District Office in Panama City inquired of her supervisor regarding outside employment and was told she had to obtain permission from Tallahassee. She subsequently telephone Jack Pelham in Tallahassee who advised her the department would have no objection if it did not interfere with her state duties, but she would have to send a request in writing stating the details of her outside employment. On April 25, 1975 she submitted a letter (Exhibit 4) stating she had accepted outside employment on weekends at an amusement park starting at 6:00 P.M. on Friday afternoon, and requested she be advised if the employment constituted a conflict of interest. No response was received indicating objection on behalf of the Department. Some time in early June Petitioner commenced working on week days in addition to weekends. No request for authority to so work was submitted by Petitioner. Department regulations and policy require prior approval for outside employment. During the period from June 6, 1975 through June 27, 1975 time sheets certified by Mrs. Wright showed she worked from 8:00 to 12:00 and 1:00 to 5:00 Mondays through Friday. Time sheets on June 30 and July 1st showed work hours from 8:00 to 12:00 and 12:30 to 4:30. On July 2 and 3 time sheets showed work from 8:00 to 12:30 and annual leave for 3 hours on July 2 and 8 hours on July 3rd. From July 7 through 10 time sheets showed hours worked from 7:15 to 12:15 and 12:45 to 3:45. From July 14 through 17 time sheets showed hours worked from 7:30 to 12:00 and 12:30 to 4:00. Time sheets from Miracle Strip Amusement Park showed that on June 6, 9, 12, 18, 20, 23, 25, 26 and 30 Mrs. Wright commenced work at 4:30 and on July 7, 8, 9, 10, 11, 16, and 17 she commenced work at 2:45 P.M. Copies of Department policy manual and personnel rules and regulations are available in the District Office out of which Mrs. Wright worked, but she was not furnished a copy of the policy manual until October, 1975 after the incidents herein involved. Testifying in her own behalf Petitioner contends that she signs most of the time sheets in blank and the secretary filled in the hours for her the same as she did for the other inspectors. She further contends that she was unaware that she needed approval for changing the hours of outside employment from the weekend to include weekdays; that she had worked overtime on many occasions for which she had not made a claim; that her supervisor told her he had no objection to her working outside so long as she put in 8 hours for the state; and that she could work early hours if she desired. Except for about 4 days in July she contended that each day she worked the full 8 hours required by the Department. With respect to those 4 days in July for which attendance sheets show less than 8 hours per day worked, she contends she asked if she could take leave and was told it wasn't necessary. Her supervisor has no recollection of such a request and no leave slips were presented to him for approval.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Respondent was certified as a law enforcement and correctional officer by the Criminal Justice Standards and Training Commission on June 26, 1979, and Respondent was issued certificate numbers 02-023577 and C-1097. At all times material to this proceeding, Respondent was a certified law enforcement and correctional officer and was employed as a deputy sheriff by the Columbia County Sheriff's Department holding the rank of lieutenant. Respondent had been employed by the Columbia County Sheriff's Office since 1975, except for the period from 1979 to 1981. The Respondent appeared and gave sworn testimony before the Grand Jury of the Third Judicial Circuit of Florida, in and for, Columbia County, Florida (Grand Jury) on February 15, 1984. On or about May 8, 1984, Respondent was interviewed by Special Agent Harry L. Peel of the Federal Bureau of Investigation and agents of the Florida Department of Law Enforcement (FDLE). Either before or during this interview, Respondent requested a polygraph examination which was administered by Peel. As a result of the polygraph examination, Respondent was told by Peel that he was apparently "forgetting something", and after further discussion with Peel and agents of FDLE, Respondent agreed to voluntarily go back before the Grand Jury and "straighten all this up." On May 9, 1984, Respondent appeared before the Grand Jury for the second time to give sworn testimony. Prior to testifying, Respondent was questioned by Eugene T. Whitworth, Assigned State Attorney, James R. Murray, Assigned Assistant State Attorney and Dan Clark, Assigned Assistant State Attorney as to Respondent's understanding that no "deal" had been made and that no immunity was attached to his testimony. It was then explained to Respondent by Whitworth, Murray and Clark that any determination of perjury charges in regard to Respondent's testimony before the Grand Jury would be "up to" the members of the Grand Jury. A review of Respondent's responses during this dialogue with different members of the Assigned State Attorney's Office shows that Respondent was concerned about his previous testimony before the Grand Jury on February 15, 1984 but that Respondent did not think he had lied during his previous testimony. Respondent felt that he had failed to tell the Grand Jury the "whole truth" in his previous testimony and that there may be inconsistencies between his previous testimony and the testimony he was prepared to give on May 9, 1984. Prior to testifying before the Grand Jury on May 9, 1984, Respondent was advised by Whitworth to call his attorney and discuss the probable consequences of testifying before the Grand Jury on May 9, 1984. After calling his attorney, the Respondent voluntarily testified before the Grand Jury. There was insufficient evidence to prove that Respondent had told Peel that he had lied to the Grand Jury in his previous testimony on February 15, 1984. The Respondent was assigned by Sheriff Spradley to the Wynnemore Farm's horse racing track (Track) after Jack Wynne, owner of the Track, complained about the Sheriff's Auxiliary not properly performing its duty at the Track which was being paid for by Wynne. On February 15, 1984 in response to questions concerning his knowledge of the unlawful gambling activity at the Track, Respondent "had thoughts about it, but could never prove it" and nobody approached him "to make any bets or nothing." Respondent "weren't sure there was anything illegal going on, other than hearing people talk on the streets." On May 9, 1984, in reference to the gambling activity at the track, Respondent testified that he told Sheriff Spradley at about the time he was assigned to the Track that "there may be a little gambling going on out there" and that Sheriff Spradley replied "to just keep the auxiliary up front" and "not to worry about the gambling because it wouldn't be that big or nothing like that." On February 15, 1984, Respondent was not positive that he had discussed the situation at the Track with Sheriff Spradley but, testified that "I might have. I'm not positive. I couldn't swear to that, but it seems that I did, that I might have went to him and told him that I thought there was a little bit of gambling...." And further testified that the Sheriff replied, "I'll get it checked into." However, Respondent did recall speaking to Felix Eades, Chief Investigator for the Sheriff's Office, before the arrests about the possibility of "some gambling going on" and that Eades' response was that he "would check into it, and it didn't sound like much to him neither." On May 9, 1984, while testifying before the Grand Jury, Respondent recalled a conversation with Sheriff Spradley wherein the Sheriff told Respondent that "there may be some gambling going" but for Respondent "to overlook it." On February 15, 1984 Respondent testified that it was not one of his responsibilities to inform Wynne of the presence of any law enforcement officers at the track who may be conducting an investigation. On May 9, 1984 Respondent testified that Wynne asked to be informed if the Respondent saw any investigators at the Track. Respondent did not inquire any further, and Wynne did not explain his reasons for wanting to know about the investigators. On February 15, 1984 Respondent could not recall any discussion with any one, including Wynne, before the arrests were made concerning an ongoing investigation of the activities at the Track. On May 9, 1984 Respondent recalled that he had informed Wynne about a week before the raid took place "that he was fixing to be raided." On February 15, 1984 Respondent could not recall any conversation with any member of the Sheriff's Office, particularly Wade Harris, in regard to being involved in a controlled substance violation such as removing contraband from the evidence room. On May 9, 1984 Respondent recalled a conversation wherein Harris told Respondent that Harris had removed marijuana from the evidence room, hauled it to Sisters Welcome Road and transferred the marijuana to Sheriff Spradley's car. Respondent also recalled a conversation with Harris wherein Harris and someone else raided a house in Ft. White, Florida to steal some marijuana. Although there were some discrepancies in Respondent's February 15, 1984 testimony when compared to his May 9, 1984 testimony, a review of the May 9, 1984 testimony shows that Respondent did not consider his February 9, 1984 testimony to be false but only a failure of "not coming in here the first time and telling everything." Respondent resigned from the Columbia County Sheriff's Office shortly after his appearance before the Grand Jury on May 9, 1984 and subsequently was hired by the Department of Corrections as a correction officer. During Respondent's tenure with the Department of Corrections he was given good performance ratings and promoted from a tower guard to being in charge of a dormitory with 172 inmates. Respondent is presently employed by L. J. Kennedy Trucking Company as shipping manager and has held that position for approximately 1 1/2 years. There is no evidence in the record that Respondent was ever charged with perjury before the Grand Jury. Respondent's testimony at the hearing that he had been truthful on both occasions but "remembered" a number of facts after he testified on February 15, 1984 and that he was "scared to death" was credible and consistent with his testimony before the Grand Jury.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Commission enter a Final Order dismissing the Administrative Complaint filed herein. Respectfully submitted and entered this 23rd day of July, 1987. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1987. COPIES FURNISHED: Rod Caswell, Director Criminal Justice Standards Training Commission Department of Law Enforcement Post office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Stephen A. Smith, Esquire 101 East Madison Street P. O. Box 1792 Lake City, Florida 32056-1792 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulinqs on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2.-3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 2. 5. Adopted in Finding of Fact 5. 6. Adopted in Finding of Fact 10. 7. Adopted in Finding of Fact 11. 8.-9. Adopted in Finding of Fact 10. 10. Adopted in Finding of Fact 11. 11. Adopted in Finding of Fact 12. 12. Adopted in Finding of Fact 12 in substance. 13.-14. Adopted in Finding of Fact 13. 15.-17. Adopted in Finding of Fact 14. 18. Adopted in Finding of Fact 15 in substance. Adopted in Findings of Fact 4 and 15 in substance. Rejected as not supported by substantial competent evidence in the record. Rulings on Supplemental Findings of Fact Submitted by Petitioner 1. Rejected as immaterial and irrelevant. 2.-3. Adopted in part in Finding of Fact 19, otherwise rejected as immaterial and irrelevant. 4.-6. Rejected as immaterial and irrelevant. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Finding of Fact 1. 2.-3. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in part in Findings of Fact 10 and 11, otherwise rejected as argument. Adopted in part in Findings of Fact 6 and 15, otherwise rejected as argument. Adopted in part in Findings of Fact 4, 6, 14, 15 and 19, in part, otherwise rejected as argument or as immaterial and irrelevant. Rejected as argument. Adopted in part in Findings of Fact 4 and 19, otherwise rejected as argument.
The Issue At issue is whether respondent committed the offenses alleged in the administrative complaint and, if so, what penalty should be imposed.
Findings Of Fact The parties Petitioner, Department of Agriculture and Consumer Services (Department), is a state agency charged with the duty and responsibility of regulating, permitting, and inspecting, inter alia, amusement devices and attractions, and the prosecution of administrative complaints pursuant to the laws of the State of Florida, in particular Section 616.242, Florida Statutes, Chapter 120, Florida Statutes, and the rules promulgated pursuant thereto. 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.2 Respondent owns, operates, and rents temporary amusement devices and attractions which are subject to inspection, testing and permitting by the Department, pursuant to Section 616.242, Florida Statutes. Such devices consist primarily of small "kiddie" rides, although respondent does own, operate and rent larger amusement devices such as the Super Slide. These amusements are principally provided for private events, such as birthday parties, company picnics and school carnivals, which are not open to the general public and at which no admission is charged. Occasionally, however, respondent provides amusement devices for "fund raiser type carnival" events that are open to the general public. Industry regulation Prior to July 1, 1992, Section 616.091(2), Florida Statutes, prohibited the operation of temporary amusement devices, such as those operated by respondent, without a "permit" and a "certificate to operate." At the time, there was apparently some disagreement as to whether the law was intended to cover companies, such as respondent, who engaged in the rental of amusement devices or attractions to predominantly small private events. Indeed, as discussed more fully infra, the Department apparently interpreted the law at the time as not requiring permits or inspections of amusements operated by companies, such as respondent. Moreover, the requirement that the Department inspect each device after setup, incident to the issuance of a "certificate to operate," was apparently impractical given the number of such events and the Department's limited personnel.3 Consequently, effective July 1, 1992, Chapter 92-291, Section 91, Laws of Florida, created Subsection 616.0915(24), Florida Statutes, now codified at subsection 616.242(24).4 That subsection expressly addressed the permitting and inspection requirements placed on rental companies, such as respondent, as follows: This subsection establishes permitting and inspection procedures for companies engaged in the rental of amusement devices and amusement attractions. All companies engaged in the rental of amusement devices and amusement attractions shall make application to the department for permits to operate pursuant to this section. Once the annual inspection is completed and the application is approved, amusement devices and amusement attractions owned or operated by rental companies shall be subject to inspection and regulation as specified in paragraphs (b) and (c). Rental companies operating amusement devices or amusement attractions singularly, or jointly with an amusement device or amusement attraction company, at a public event are subject to onsite inspections and issuance of a certificate to operate, pursuant to this section, at that particular event when there are at the event more than three amusement devices or amusement attractions or any combination of both, or when the capacity of any amusement device or amusement attraction at the event exceeds eight persons. Any amusement device or amusement attraction used at a private event for which no admission is charged must comply with all requirements of this section. However, such amusement device or amusement attraction does not have to be inspected by the department at the time of setup. With such amendment, the Legislature clearly expressed its intent that all amusement devices operated by companies, such as respondent, must comply with the "permit" requirements of section 616.242, but were excused or exempt, under certain circumstances, from the requirements for a "setup" inspection and a "certificate to operate" at each event. The violations From November 6, 1993, through February 10, 1996, on 136 separate occasions (separate days or events), respondent rented and operated a temporary amusement device or attraction known as Dinomania that was not permitted as required by law, and that had not undergone the inspection required for permitting. Additionally, the Dinomania had not undergone an onsite inspection following setup and had not been issued a certificate to operate; however, the proof demonstrates, more likely than not, that its use on each occasions was at a private event for which no admission was charged. On January 22, 1995, respondent rented and operated five temporary amusement devices or attractions that were not permitted as required by law, and that had not undergone the inspection required for permitting. The devices or attractions were also not inspected following setup and had not been issued a certificate to operate; however, again, the occasion was most likely a private event at which no admission was charged. On May 3, 1996, Department inspectors, at respondent's request, appeared at respondent's premises to permit a temporary amusement known as a "Super Slide," USA ID Number 264. At the time, inspection revealed certain defects or deficiencies, and an "Imminent Danger - Stop Operation Order" ("red tag") was issued and attached to the attraction. The order provided: The above identified amusement device or amusement attraction is not in compliance with Section 616.242(5)(h) F.S., manufacturer's specifications or ASTM Standards. The amusement device or amusement attraction failed to pass inspection for the above reasons and must be reinspected by the department prior to opening to the public. Subsection 616.242(5)(h), further provides: "[s]uch order may not be removed until the device or amusement attraction is made safe, and may be removed only by the department." On May 18, 1996, respondent, pursuant to a contract with Midway Ford, rented and operated the Super Slide, USA ID Number 264, at 8155 West Flagler Street, Miami, Florida. At the time, the Super Slide was not permitted, had not been reinspected by the Department, and someone, other than the Department, had removed the "red tag." The Super Slide had also not been inspected following setup and had not been issued a certificate to operate before operations began; however, although the event was open to the public, the proof failed to demonstrate that there were "three or more amusement devices or amusement attractions or any combination of both, or . . . the capacity of any amusement device or amusement attraction at the event exceeds eight persons." Respondent's defense In response to the showing that respondent rented and operated an unpermitted amusement device or attraction on 136 separate occasions (separate dates or events) between November 6, 1993, and February 10, 1996, as well as five unpermitted amusement devices or attractions at Florida Bible Church on January 22, 1995, petitioner contends it should be excused for such conduct or, stated differently, the Department should be estopped from pursuing such violations, because various Department inspectors had told respondent's principal, Mr. Stevens, on a number of occasions between 1993 and August 1995, that amusement devices and attractions rented or operated for private events did not have to be permitted or inspected. Consequently, according to Mr. Stevens, in reliance on that information, he took no action to permit the amusement devices or attractions he used for private events until August 9, 1995, when he claims the inspectors first advised him that all amusement devices or attractions had to be permitted. The Department denies that any representations suggesting that amusement devices or attractions rented or operated for private events did not require permitting, and contends there is no excuse for respondent's omissions. Regarding the events of August 9, 1995, the proof demonstrates that on that date Department inspectors made an unannounced inspection of the amusement devices and attractions present at respondent's business location. At the time, a number of items were found to lack current annual inspections or permits and were "red tagged." According to respondent's principal, Mr. Stevens, he protested the Department's action at the time because the equipment was destined for private, as opposed to public events, and he felt it unfair that he was just being advised that all equipment, whether for public or private use, required a permit. According to Mr. Stevens, he could not secure the required inspections and permits until October 1995, and the Department's action would seriously affect his business. Therefore, according to Mr. Stevens, the Department removed the "red tag" and acquiesced in his operation until the end of October 1995. At that time, according to Mr. Stevens, his amusement devices and attractions were properly permitted. The Department denies that it removed the "red tags" and acquiesced in respondent's operation of unpermitted equipment at private events until the end of October 1995, and further denies respondent was in compliance thereafter. Addressing first respondent's compliance post-October 1995, the parties' stipulation and the proof demonstrate otherwise. Rather, the proof demonstrates that from November 5, 1995, through February 10, 1996, on 13 separate occasions (separate days or events) respondent rented and operated a temporary amusement device or attraction (the "Dinomania") that was not permitted as required by law, and that had not undergone the inspection required for permitting. Also, on May 18, 1996, respondent operated the Super Slide at Midway Ford without a current permit. Given the proof, there is no explanation or excuse for respondent's conduct regarding those events. With regard to respondent's contention that Department inspectors had advised its principal at various times during the years 1993 to August 1995 that amusement devices and attractions destined for private events did not require permitting, as well as its contention that the Department acquiesced in such use through October 1995, it is found that such assurance or conduct post-July 1, 1992, is most unlikely, given the clear wording of the statute regulating those events. Consequently, considering that factor and the testimony, respondent's contention, and the proof offered to support it, is rejected as unpersuasive.5 Notwithstanding, the proof did demonstrate that prior to the amendment of July 1, 1992, the law was apparently not so clear, and the Department apparently interpreted the law as exempting operators, such as respondent, since Mr. Lowell Parrish, then the Department's Chief, Bureau of Fair Rides Inspecting, advised Mr. Stevens that permits were not required for private events. With the change in the law, and Mr. Ronald Safford's appointment as Bureau Chief in December 1992, however, permits have been required. Given such proof, and Mr. Steven's apparent sincerity regarding his understanding (until August 9, 1995) of the requirements placed on his operations, a likely explanation for respondent's failure to perceive a need to permit its amusements is misunderstanding. For example, it is possible that inspectors advised Mr. Stevens that the Department did not need to inspect amusements destined for private events. Such advice was accurate, as to setup inspections, but Mr. Stevens may have erroneously assumed, consistent with the practice under the former law, that inspection and permitting was also not required. Whether such was or was not the source of Mr. Stevens understanding is, however, speculative. Moreover, if it occurred, Mr. Stevens reliance or assumption was not well founded.6 In this regard, it is observed that since at least 1991 the Department, on an annual basis, has provided all traveling amusement operators, including respondent, with permit application forms, a copy of Section 616.242, Florida Statutes, and a copy of Rule 5F-8, Florida Administrative Code. While Mr. Stevens acknowledges receipt of such materials, he frankly admits he never read the law. Such failure by the owner of a regulated business, evidences recklessness or indifference. Moreover, the provision of section 616.242 relating to respondent's business, subsection (24), is brief, and no reasonable person could read it and fail to grasp its requirements.7 In response to the showing that respondent rented and operated a Super Slide on May 18, 1996, at Midway Ford that had not been reinspected by the Department following the attachment of an "Imminent Danger - Stop Operation Order" ("red tag"), respondent concedes such conduct violated the provisions of subsection 616.242(5)(h), Florida Statutes. [Respondent's proposed recommended order, at conclusions of law, paragraph 7.]8 However, with regard to the additional violation claimed, that the Super Slide was operated without a current permit, respondent contends it is not guilty of such violation because the Department was without authority to deny its permit on May 3, 1996, the day of the inspection. To support its argument, respondent points to the provisions of subsection 616.242(4)(d), which provides: Permits and certificates to operate shall be issued to the owner of an amusement device or amusement attraction when: Written application has been made to the department. The amusement device has passed all required inspection. The liability insurance or bond has been met in the amount prescribed. Here, respondent contends it had applied for the permit renewal, the amusement device had passed all "required inspections" [i.e., it had been inspected by a professional engineer and a nondestructive test had been performed, as required by subsection 616.242(5)(c)], and the required insurance or bond had been posted. Consequently, respondent concludes the Department was compelled to issue the permit, notwithstanding the perceived deficiencies, and it should not be considered guilty of having operated the equipment without a permit on May 18, 1996. Having considered respondent's argument, it must be concluded that it is without merit. First, the equipment was not shown to have "passed all required inspections," simply because an affidavit of annual inspection by a professional engineer was presented, as well as evidence of a nondestructive test. Subsection 616.242(5)(c) requires that the inspection performed by the professional engineer "shall, at a minimum, comply with the requirements of the department." Such requirements include the following provisions of Chapter 5F-8, Florida Administrative Code: 5F-8.0051 Inspection Standards. For an amusement attraction or amusement device to comply with ASTM Committee F-24 Standards each component or element of the amusement attraction or amusement device must comply with ASTM Committee F-24 Standards. The amusement attraction or amusement device shall not fail to pass inspection solely because a nonessential or ornamental component is inoperative or in disrepair. 5F-8.006 Issuance of Permits. Permits shall be issued when the provisions of s. 616.242(4)(d), Florida Statutes, and this chapter have been met. Here, the amusement device was found not to comply with section 616.242(5)(h), manufacturer's specifications or ASTM Standards. Consequently, the Department was not obligated to permit the equipment. Indeed, it would be rather incongruous to compel the Department to permit equipment it had found on inspection to "present[] an imminent danger" where the purpose of subsection 616.242 is to "guard against personal injuries in the . . . use of amusement devices."
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 imposing an administrative fine against respondent in the sum of $23,500.DONE AND ENTERED this 1st day of May, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1997.
