06-001925 Department Of Agriculture And Consumer Services vs. Royal Fun Time, Inc. Status: Closed Recommended Order on Tuesday, August 22, 2006.

Summary: Respondent operated an amusement ride in a circumstance that presented serious risk of injury to patrons.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1925

)

ROYAL FUN TIME, INC. , )

)

Respondent . )

)

RECOMMEN DED ORDER

Pursuant to notice, a final hearing was held in this case

on July 12, 2006, in Orlando, Florida, before Susan B. Harrell,

a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: William N. Gr aham, Esquire

Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 Calhoun Street

Tallahassee, Florida 32399 - 0800

For Respondent: Patrici a Atkins, Qualified Representative

Royal Fun Time, Inc.

5770 West Irlo Bronson Memorial

Highway , No. 142

Kissimmee, Florida 34746

STATEMENT OF THE ISSUES

The issu es 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.

PRELIMINARY STATEMENT

On February 3, 2006, Petitioner, Department of Agriculture

and Consumer Aff airs (Department), filed an Administrative

Complaint against Respondent, Royal Fun Time, Inc. (Royal Fun

Time), alleging that Royal Fun Time violated Subsection

616.242(19)(a)1.b., Florida Statutes, by operating an amusement

ride in a manner or circumstanc e that presents a risk of serious

injury to patrons. Respondent requested an administrative

hearing, and the case was forwarded to the Division of

Administrative Hearings on May 26, 2006, for assignment of an

administrative law judge. The case was origin ally assigned to

Administrative Law Judge Daniel M. Kilbride, but was reassigned

to Administrative Law Judge Susan B. Harrell to conduct the

final hearing.

At the final hearing, the Department called the following

witnesses: Jennifer Christian De L or m e ; Jo seph Roland Ensminger,

Jr. ; Kevin Waters ; Allan Freeman Harrison ; and Lisa Ensminger.

Petitioner's Exhibits 1, 2, 3, 5, and 6 were admitted in

evidence.

At the final hearing , Royal Fun Time called Rick Gayhart

and Carlos Rivera as its witnesses. No ex hibits were submitted

in evidence for Respondent.

The one - volume of the Transcript of the final hearing was

filed on August 8, 2006. The parties agreed to file their

proposed recommended orders within ten days of the filing of the

Transcript. The Departm ent timely filed its Proposed

Recommended Order. As of the date of this Recommended Order,

Royal Fun Time had not filed a proposed recommended order.

FINDINGS OF FACT

1. Royal Fun Time operates a permanent amusement park at

Old Town Amusement Park (Old T own), 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 platfor ms. Once a person is

seated on the ride, a lap bar is place d across the seat to

prevent the rider from falling off the ride .

2. 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.

3. 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 M s. 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.

4. According to Mr. Gayhart, there is a blind s pot 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.

5. 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.

6. 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.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat.

8. The Department seeks to impose an admi nistrative fine

against Royal Fun Time; thus, the Department has the burden to

establish the allegations of the Administrative Complaint by

clear and convincing evidence. Department of Banking and

Finance v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 199 6).

The Department has alleged that Royal Fun Time violated

Subsection 616.242(19)(a)1.b., Florida Statutes, which provides

that the Department may fine the owner of an amusement ride up

to $2,500 per violation per day if the amusement ride has

operated " [i]n a manner or circumstance that presents a risk of

serious injury to patrons."

9. The Department has established by clear and convincing

evidence that Royal Fun Time did violate Subsection

616.242(19)(a)1.b., Florida Statutes. Mr. Gayhart did not

ensu re that all patrons were in their seats with the lap bars in

place before starting the ride. While Mr. Gayhart may not have

been able to see all the patrons because of a blind spot, Royal

Fun Time was aware of the blind spot and did not take measures

to c orrect the problem .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a f inal o rder 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 ENTER ED 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

123 0 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 .

ENDNOTE

1/ Unless othe rwise indicated, all references to the Florida

Statutes are to the 2005 version.

COPIES FURNISHED :

William N. Graham, Esquire

Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

Charles D. Hundley

Royal Fun Time, Inc.

5770 West Irlo Bronson Memorial

Highway, No. 129

Kissimmee, Florida 34746

Gary Conroy

Royal Fun Time, Inc.

5770 West Irlo Bronson Memorial

Highway, No. 142

Kissimmee, Florida 34746

Patricia Atkins, Qua lified Representative

Royal Fun Time, Inc.

5770 West Irlo Bronson Memorial

Highway , No. 142

Kissimmee, Florida 34746

Chris Green, Chief

Bureau of License and Bond

Division of Marketing

Department of Agriculture and

Consumer Services

407 South Calhou n Street, Mail Station 38

Tallahassee, Florida 32399 - 0800

Richard Ditschler, General Counsel

Department of Agriculture and

Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 0800

Honorable Charles H. Bronson

Commissi oner of Agriculture

D epartment of Agriculture and

Consumer Services

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.