96-003191 Department Of Agriculture And Consumer Services vs. Dodge City Pony And Kiddie Rides, Inc. Status: Closed Recommended Order on Thursday, May 1, 1997.

Summary: Company engaged in the rental of amusement devices fined for failure to have devices properly inspected and permitted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF )

AGRICULTURE AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3191

)

DODGE CITY PONY AND KIDDIE RIDES, )

INC., a Florida Corporation, )

)

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 February 26, 1997, in Miami, Florida.

APPEARANCES

For Petitioner: Isadore Rommes, 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 ISSUES

At issue is whether respondent committed the offenses

alleged in the administrative complaint and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By a three count administrative complaint dated June 6,

1996, petitioner charged respondent with violating the

provisions of Section 616.242, Florida Statutes. Count I

alleged that a "Dinomania" (a temporary amusement device or

attraction, as defined by section 616.242) had been operated by

respondent in the State of Florida from November 6, 1993,

through February 10, 1996, on 136 separate occasions without a

permit or the required inspections, in violation of Section

616.242(4)(a), (5)(a), (6) and (24)(a), Florida Statutes. Count

II alleged that on January 22, 1995, at Florida Bible Church,

respondent operated for public use six temporary amusement

devices or attractions which were not permitted or inspected, in

violation of Section 616.242(4)(a), (5)(a), (6), and (24)(a),

Florida Statutes. Count III alleged that on May 18, 1996,

respondent operated a temporary amusement device or attraction

(a "Super Slide") at Midway Ford, Miami, Florida, which was not

permitted or inspected, and while an Imminent Danger-Stop

Operation Order (a "red tag") was in effect, in violation of

Section 616.242(4)(a), (5)(a) and (h), and (6), Florida

Statutes.

Respondent filed its answer to the complaint contesting

certain factual allegations and alleged, as a defense to the

claimed violations, by avoidance or estoppel, that various

agency inspectors had, during the period of 1993 through August

1995, stated that temporary amusement devices used at "private

functions" did not require a permit or inspection. Respondent

further averred that the agency inspectors did not have

authority to "red tag" the Super Slide. Consequently, on July

8, 1996, petitioner referred the matter to the Division of

Administrative Hearings to conduct a formal hearing pursuant to

Section 120.57(1), Florida Statutes.

At hearing, petitioner called Ronald Stafford, Carols

Corvo, Ronald Brooks, Wallace Stevens, Randy Glenn, and Bradford

Mosher, as witnesses. Petitioner's exhibits 1-9 were received

into evidence. Respondent called Wallace Stevens, Thomas

Maxwell, Jeannine Stacy Young, Mitchell Williams, and Randy

Glenn, as witnesses. Respondent's exhibits 1-9 were received

into evidence at hearing and respondent's exhibit 10 (the

deposition of Dean A. Bennett taken March 12, 1997) was received

into evidence post-hearing. 1

The transcript of hearing was filed March 13, 1997, and the

parties were accorded, at their request, until April 3, 1997, to

file proposed recommended orders. Consequently, the parties

waived the requirement that a recommended order be rendered

within thirty days after the transcript has been filed. Rule

60Q-2.031, Florida Administrative Code . The parties elected to

file such proposals, and they have been duly considered in the

preparation of this recommended order.

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,

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.

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. 2

3. 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

4. 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."

5. 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

6. 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:

(24) This subsection establishes

permitting and inspection procedures for

companies engaged in the rental of amusement

devices and amusement attractions.

(a) 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).

(b) 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.

(c) 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

7. 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.

8. 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.

9. 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."

10. 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

11. 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.

12. 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."

13. 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.

14. 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.

15. 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

16. 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.

17. 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

18. 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

19. 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.

20. To support its argument, respondent points to the

provisions of subsection 616.242(4)(d), which provides:

(d) Permits and certificates to operate

shall be issued to the owner of an amusement

device or amusement attraction when:

1. Written application has been made to

the department.

2. The amusement device has passed all

required inspection.

3. 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.

21. 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."

CONCLUSIONS OF LAW

22. 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 (1996 Supp.).

23. Where, as here, the Department proposes to impose an

administrative fine, the Department bears the burden of proving

the charges contained in the administrative complaint by clear

and convincing evident. Section 120.57(1)(h), Florida Statutes

(1996 Supp.), 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).

24. Moreover, in determining whether respondent violated

the provisions of section 616.242, as alleged in the

administrative complaint, 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 is not reasonably proscribed by it."

Lester v. Department of Professional and Occupational

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

Article I, Section 18, of the Florida Constitution prohibits an

administrative agency from imposing a sentence of imprisonment

or "any other penalty except as provided by law." Consistent

with such provision, "case law reveals that an agency possesses

no inherent power to impose sanctions, and that any such power

must be expressly delegated by statute." Department of

Environmental Regulation v. Puckett Oil Co. , 577 So.2d 988, 992

(Fla. 1st DCA 1991).

25. Pertinent to this case, operation of any temporary

amusement device or attraction in the state without a "permit"

issued by the Department and without a "certificate to operate"

is, except as hereafter discussed, prohibited. Section

616.242(4)(a), Florida Statutes , "Permit" means "that document

which signifies that the amusement device or amusement

attraction has undergone and passed its annual inspection."

Section 616.242(3)(e), Florida Statutes . "Certificate to

operate" means "that document which indicates that the temporary

amusement device has undergone the inspection required after

setup." Section 616.242(3)(f), Florida Statutes .

26. The only exception to the foregoing requirement is

established by subsection 616.242(24) which establishes the

permitting and inspection procedures for companies, such as

respondent, as follows:

(24) This subsection establishes

permitting and inspection procedures for

companies engaged in the rental of amusement

devices and amusement attractions.

(a) 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).

(b) 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.

(c) 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.

27. Also pertinent to this case, subsection 616.242(5)(g)

and (h) provide:

(g) Upon proper presentation of

credentials, an authorized employee of the

department may enter unannounced and inspect

amusement devices at any time and in a

reasonable manner and has the right to

question any owner, manager, or agent of the

owner; to inspect, investigate, photograph,

and sample all pertinent places, areas, and

devices; and to examine and reproduce all

pertinent documents and records for the

purpose of enforcing this chapter. . . .

(h) An amusement device or an amusement

attraction that fails to pass an inspection

may not be operated for public use until it

has passed a subsequent inspection. If the

department or manager finds that an

amusement device or amusement attraction

presents an imminent danger, the department

shall issue an imminent danger order and

shall issue and attach a stop operation

order prohibiting the use of the device or

attraction. Such order may not be removed

until the device or attraction is made safe,

and may be removed only by the department.

28. Here, the proof demonstrated with the requisite degree

of certainty that, contrary to the provisions of subsections

616.242(4)(a), (5)(a), (6), and (24)(a), respondent operated a

temporary amusement device or attraction in the state on 136

separate occasions from November 6, 1993, through February 10,

1996, without a permit and without the inspections required for

a permit. Respondent's failure to request an inspection at the

time of setup (the "certificate to operate") was not, however,

shown to be contrary to the provisions of section 616.242 since,

as heretofore noted, the amusements were "used at a private

event for which no admission was charged." Section

616.242(24)(c), Florida Statutes .

29. The proof further demonstrated that, contrary to the

same provisions of law, respondent operated five temporary

amusement devices or attractions in the state, at Florida Bible

Church on January 22, 1995, without a permit and without the

inspections required for a permit. Respondent's failure to

request an inspection at the time of setup was not, however,

shown to be contrary to law since it was "a private event for

which no admission was charged." Section 616.242(24)(c),

Florida Statutes .

30. Finally, the proof demonstrated that, contrary to the

same provisions of law and subsection 616.242(5)(h), respondent

operated a temporary amusement device or attraction in the

state, at Midway Ford on May 18, 1996, without a permit, without

having passed the inspection required for a permit, and without

reinspection by the Department following issuance of a stop

operation order. Respondent's failure to request an inspection

at the time of setup was not, however, shown to be contrary to

law since, although a public event, there were not "more than

three amusement devices or amusement attractions or any

combination of both, or . . . the capacity of any amusement

device or amusement attraction at the event [did not] exceed[]

eight persons." Section 616.242(24)(b), Florida Statutes .

31. Having concluded that respondent failed to comply with

the prerequisites of section 616.242 prior to operation of

amusement devices or attractions in the state, it is necessary

to address what penalties, if any, may be imposed. In this

regard, subsection 616.242(4) accords the Department the

following

authority to impose sanctions: 9

(e) The department shall revoke any

permit issued under this chapter or impose

an administrative fine of up to $500 per

violation per day if it finds that the

amusement device or amusement attraction for

which it is issued is:

1. Being operated without the inspections

required by this section. . . .

32. Here, the proof demonstrated that the amusements

respondent operated on November 6, 1993, through February 10,

1996, on January 22, 1995, at Florida Bible Church, and on May

18, 1996, at Midway Ford, were operated without having undergone

and passed the inspection required by section 616.242 for

issuance of a permit. 10 The proof further demonstrated that the

amusement operated on May 18, 1996, at Midway Ford was operated

without the reinspection required by section 616.242 when a stop

operation order was in effect. Consequently, respondent has

been shown to have operated without the inspections required by

section 616.242 on each such occasion.

33. For the foregoing violations, the Department proposes

an administrative fine of $500 per violation per day for a total

fine of $71,500. Such fine is derived as follows: 136

violations based on the 136 separate occasions amusements were

operated on November 6, 1993, through February 10, 1995; 5

violations based on the five amusements that were operated on

January 22, 1995, at Florida Bible Church; and 2 violations

based on the operation of the amusement on May 18, 1996, at

Midway Ford, without having passed the inspection required for

issuance of a permit and without the reinspection.

34. The penalty proposed by the Department is within the

permissible range established by subsection 616.242(4)(e), and

given the record in this case 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).

Notwithstanding, based on the considerations which follow, it is

recommended that a penalty at less than the maximum allowed by

law be imposed.

35. With regard to the violations which occurred after

August 9, 1995, following respondent's admitted knowledge of the

requirements of law, an administrative fine of $500 per

violation per day is appropriate. Those violations total 23 in

number, and warrant an administrative fine of $11,500.

36. With regard to the remaining violations, which precede

that date and total 120 in number, a fine of $100 per violation

is more appropriate. Such assessment balances the Department's

need to assure compliance and to deter others in the industry

from similar activities, with the acceptance that,

notwithstanding respondent's failure to familiarize itself with

the law, every error does not warrant the extraction of the

maximum penalty. Consequently, for these violations, an

administrative fine of $12,000 is appropriate.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of May, 1997.

ENDNOTES

1/ Respondent's exhibits 3, 4, 5, and 6 were offered as

affidavits of inspection by Thomas Maxwell, P.E., of certain

amusement devices or attractions owned by respondent in September

1993 (exhibit 3), September 1994 (exhibit 4), May 1995 (exhibit

5), and September and October 1995 (exhibit 6). Respondent's

exhibit 5 does not, however, relate to respondent but to another

entity (Carnival USA).

2/ Mr. Wallace Stevens is the president, chief operating officer

and majority shareholder (90 percent) of respondent corporation.

Although respondent was incorporated in approximately 1989, Mr.

Stevens has been operating such business, apparently under a

different form of ownership, for approximately 33 years. [Tr.

pages 132 and 138.]

3/ Regarding the number of such events, the proof demonstrates

that respondent typically conducts 20 to 30 such events a day on

weekends, and, therefore, up to 60 inspections would be required

each weekend for that company alone.

4/ Section 616.091(2), Florida Statutes (1991), was recodified

at Section 616.0915, Florida Statutes, by Chapter 92-291, Section

91, Laws of Florida. Section 616.0915 was subsequently codified

at section 616.242.

5/ Moreover, were the conclusion to the contrary, the state

would still not be estopped from pursuing the violations. Austin

v. Austin , 350 So.2d 102, 105 (Fla. 1st DCA 1977),

("Administrative officers of the state cannot estop the state

through mistaken statements of the law."); and, Greenhut

Construction Co., Inc. v. Henry A. Knott, Inc. , 247 So.2d 517,

524 (Fla. 1st DCA 1971), ("Under no circumstances may the state

be estopped by the unauthorized acts or representations of its

officers"). Such proof might, however, be germane, if credited,

to an assessment of the appropriate penalty to be assessed.

6/ See endnote 5. Moreover, operators of a regulated business,

such as respondent, are charged with knowledge of the

requirements, as well as the prohibitions, of the laws to which

they are subject. See, Florida Board of Pharmacy v. Levin , 190

So.2d 768 (Fla. 1966), and Walden v. Department of Professional

Regulation , 568 So.2d 975 (Fla. 3d DCA 1990).

7/ In reaching the foregoing conclusion, that post-July 1, 1992,

there was no uncertainty in the Department regarding the

requirement that all temporary amusement devices and attractions,

whether destined for public or private events, must be permitted,

the testimony of Thomas Maxwell, and the deposition testimony of

Judy Sweeney, Peter Herzig, Sandra Phillips and Dean Bennett has

not been overlooked. With regard to Mr. Maxwell and Mr. Bennett,

it appears the source of their information was Mr. Stevens and

not a reading of the law or contact with the Department.

Moreover, Mr. Bennett, who was most similarly situated in terms

of his business operations to respondent than the other

operators, apparently had his equipment inspected and permitted

through his insurance company, but did not have setup inspections

for private events. [Respondent's exhibit 10, pages 13-16, 19

and 20.] Such conduct was consistent with the law. As for Ms.

Sweeney, Mr. Herzig and Ms. Phillips, they were not similarly

situated to respondent, could offer no specific instances of

comments by Department employees post-July 1, 1992, that would

create confusion, as suggested by respondent, and apparently

never read the law. If they were confused or there was any

"confusion in the industry" it resulted from ignorance or lack of

inquiry, as the provisions of 616.242(24) are clear and

unambiguous, and not from any representations of the Department

or its employees.

8/ In respondent's proposed findings of fact, at paragraph 8, it

suggests that "[o]n May 3, 1996, the Super Slide should not have

been inspected by [Department inspectors]." Such finding is

apparently proposed to support respondent's position, at hearing,

that the inspection was improper, therefore, the "red tag" was

unauthorized and hence there could be no "red tag" violation for

operating the equipment at Midway Ford. Given respondent's

concession in its conclusions of law, it has apparently

reevaluated its prior position. Indeed, given the provisions of

subsection 616.242(5)(g) and (h), such position was unsound.

Respondent also suggests in its proposed findings of fact

that all deficiencies discovered on the May 3, 1996, inspection

had been repaired/corrected prior to the May 18, 1996, event at

Midway Ford. The proof is to the contrary; however, it is not

germane to the charges at issue.

9/ The full authority for the Department to impose sanctions, as

established by subsection 616.242(4), is as follows:

(e) The department shall revoke any permit

issued under this chapter or impose an

administrative fine of up to $500 per

violation per day if it finds that the

amusement device or amusement attraction for

which it is issued is:

1. Being operated without the inspections

required by this section;

2. Being operated without the insurance

required by this section;

3. Being operated with a mechanical,

structural, or electrical defect which

presents a risk of serious injury to

passengers; or

4. Being operated after the device or

attraction has been involved in an accident

resulting in a death or serious injury.

(f) Any other violation of this section

may result in a revocation of the permit or

certificate to operate or both, or

imposition of an administrative fine of up

to $500 per violation per day, if written

notice of noncompliance is served upon the

owner specifying the violation and directing

the owner to correct the violations within

30 days after receipt of the notice. If the

owner and the department fail to agree that

the violation referred to in this paragraph

has in fact been corrected, the department

shall give notice of and provide a hearing

for the owner to determine whether

compliance has in fact been met.

However, subsections 616.242(4)(e)2-4 and (f) are not pertinent,

or were not shown to be pertinent, to the charges in this case.

10/ As heretofore noted, subsection 616.242(4) prohibits the

operation of any temporary amusement device or attraction in the

state without a "permit" issued by the Department. A

prerequisite to the issuance of such permit is the requirement

that the amusement undergo and pass an inspection. Sections

616.242(1)(e), (4)(d), (5), and (24)(a), Florida Statutes .

Consequently, it cannot be subject to serious debate that the

Legislature intended that inspection was required before any

amusement could operate in the state. Under subsections

616.242(4)(e), it is the failure to undergo and pass such

inspection that subjects the operator to penalties not, per se,

the failure to secure a permit.

COPIES FURNISHED:

Isadore Rommes, Esquire

Department of Agriculture

and Consumer Services

Mayo Building, Room 515

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

The Capitol, Plaza Level 10

Tallahassee, Florida 32399-0810

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.