07-004527 Department Of Agriculture And Consumer Services vs. Fun Spot Of Florida, Inc. Status: Closed Recommended Order on Friday, February 29, 2008.

Summary: Petitioner failed to prove clearly and convincingly that Respondent failed to properly monitor the amusement ride.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES , )

)

Petitioner , )

)

vs. ) Case No. 07 - 4527

)

FUN SPOT OF FLORIDA, INC. , )

)

Respondent . )

)

REC OMMENDED ORDER

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

on January 4, 2008, in Orlando, Florida, before Jeff B. Clark,

an Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: William N. Graha m, Esquire

Department of Agriculture

and Consumer Services

Mayo Building , Suite 52 0

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

For Respondent: Robert W. Anthony, Esquire

Fassett, Anthony & Taylor, P.A .

1325 W est Colonial Drive

Orlando, Florida 32804

STATEMENT OF THE ISSUES

Whether Respondent committed violations of Subsection

616.242(19)(a), Florida Statutes (2006) , 1/ as alleged in the

Administrative Complaint dated August 23, 2007, and , if so, what

penalties, if any, should be imposed.

PRELIMINARY STATEMENT

On August 23, 2007, Petitioner, Department of Agriculture

and Consumer Services, mailed a letter to Respondent, Fun Spot

of Florida, Inc., regarding "Administrative Complaint and

Se ttlement Agreement AC Number A50008 " in which it was alleged

that on May 31, 2007, Respondent, violated of Subsection

616.242(19)(a)1.b., Florida Statutes, and rules promulgated as

authorized by Chapter 616, Florida Statutes, related to the

regulations gov erning amusement rides. Specifically, it was

alleged that on May 31, 2007, the following violations occurred:

Violation # 1

Section 616.242(19)(a)1.b., Florida

Statutes:

Operating an amusement ride in a manner or

circumstance that presents a risk of seri ous

injury to patrons, in that Respondent failed

to monitor every section of the go - cart

track "Commander Track" (USAID #05211)

during its operation, as required by Rule

5F - 08.015(4)(e), Florida Administrative

Code.

Violation # 2

Section 616.242(19)(a)1. b., Florida

Statutes:

Operating an amusement ride in a manner or

circumstance that presents a risk of serious

injury to patrons, in that Respondent failed

to monitor every section of the go - cart

track "Quad Helix Track" (USAID #05212)

during its operation , as required by Rule

5F - 08.015(4)(e), Florida Administrative

Code.

On September 9, 2007, Respondent requested an

administrative hearing. On October 2, 2007, Petitioner

forwarded the case to the Division of Administrative Hearings

for assignment of an Administrative Law Judge.

An Initial Order was sent to both parties on October 2,

2007. Based on the response of the parties to the Initial

Order, on October 15, 2007, the case was scheduled for f inal

h earing on December 5, 2007 , in Orlando, Florida. On

November 16, 2007, the parties jointly requested that the case

be continued and rescheduled. An Order Granting Continuance was

entered on December 3, 2007 , and the hearing was rescheduled for

January 4, 2008. The final hearing took place as scheduled on

January 4, 2008.

At the hearing, Petitioner presented the testimony of

Rick Soyars, and Allan Harrison. Petitioner offered

Petitioner's Exhibits 1 through 13 , which were received into

evidence and marked accordingly. Respondent presented the

testimony of John Arie, Terri Rock, Andre Corbin, Jennifer

Collier, Luis Garcia, and Mike Nuñez. Respondent also presented

Respondent's Exhibits 1 through 17 , which were received into

evidence. Official Notice was taken of Subsection

616.242(19)(a)1.b., Florida S tatutes, and Florida Administrative

Code Rule 5F - 8 . 015.

A two - volume Transcript was filed with the Clerk of the

Division of Administrative Hearings on January 24, 2008.

Respondent requested and received an extension to February 12,

2008, to file proposed recommended orders. Both parties timely

filed Proposed Recommended Orders.

All references are to 2006 Florida Statutes, unless

otherwise indicated.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing in this matter , the following Findings of Facts

are made:

1. Petitioner is the state agency responsible for

inspecting and regulating amusement rides pursuant to Section

616.242, Florida Statutes.

2. Respondent, a Florida corporation, owns and operates

the amusement ri des which are the subject of this administrative

action, specifically, two go - cart tracks known as the "Commander

Track" (USAID #05211) and the "Quad Helix Track" (USAID #05212).

3. During an unannounced inspection on May 31, 2007,

Petitioner's inspector observed that there was one attendant

assigned to the Commander t rack and there were two attendants

assigned to the Quad Helix t rack. These tracks are

interconnected in that they are laid out so that the tracks are

intertwined, but one cannot drive from one track to the other.

The Commander t rack is 590 feet long with a maximum speed of

11.61 mph. The Quad Helix t rack is 1575 feet long with a

maximum speed of 15.13 mph.

4. At the time of the inspection, Petitioner's inspector

felt that the monitoring procedures in place did not satisfy the

statutory requirement that the ride not be operated "in a manner

or circumstance that presents a risk of serious injury to

patrons."

5. There are a total of four tracks in Respondent's park;

all are to some degree intertwined or positioned close together.

On May 31, 2007, there were six specified track attendants on

duty that were positioned through the park and each attendant is

instructed to visually monitor the interconnected tracks.

6. May 31, 2007, was a Thur sday. The inspection occurred

prior to noon which was not a busy time at the park.

7. At the time of the inspection, there were eight

attendants operating other amusement rides in areas contiguous

to the Commander and Quad Helix tracks. All attendants i n the

park are equipped with two - way radio communications and are in

constant radio communication with each other as part of the

standard monitoring procedures.

8. Respondent's has implemented a procedure called the

"10 - 20" rule for monitoring its premis es. Literally, this means

that every ten seconds each attendant is to visually scan his

surrounding area and each attendant must be able to respond to

any area of the track within 20 seconds. Determining w hether

each attendant actually performs this safe ty ritual every ten

seconds is problematic ; the procedure does, however, serve to

remind each employee that a safety vigil must be constantly

maintained.

9. Respondent had electronic video monitoring throughout

the amusement park, and although no employe e is specifically

designated to constantly monitor the video screens, the screens

are located in an office that is regularly occupied.

10. There were a sufficient number of Respondent's

employees "on duty" and in position to monitor the Commander and

Quad Helix tracks at the time and date of the alleged violations

to e nsure that these amusement rides were operated in a manner

or circumstance that did not present a risk of serious injury to

patrons.

CONCLUSIONS OF LAW

11. The Division of Administrative Hea rings has

jurisdiction over the subject matter and of the parties.

§§ 120.569 and 1 20.57(1), Fla . Stat. (2007).

12. In the Administrative Complaint , the Department seeks

to impose an administrative fine of $1,000 for each of the two

alleged violations. A ccordingly, the Department must prove the

allegations in the Administrative Complaint by "clear and

convincing" evidence. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d. 932 (Fla. 199 6); and Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

13. In determining whether Respondent violated the

provisions of Section 616.242, Florida Statutes, 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

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

14. "Clear and convincing evidence" is a "level of proof"

that:

[E]ntails both a qualitative and

quantitative standard. The evidence must be

credible; the memories of the witnesses must

be clear and without confusion, and the sum

t otal of the evidence must be of sufficient

weight to convince the trier of fact without

hesitancy. Clear and convincing evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembere d; the testimony must be precise

and explicit and the witnesses must be

lacking in confusion as to the facts in

issue. 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.

In R e : Davey , 645 So. 2d 398, 404 (Fla. 1994); Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4 th DCA 1983).

15. Respondent has been charged with two violations as

stated in the Administrative C omplaint:

Violation # 1

Section 616.242(19)(a)1.b., Florida

Statutes:

Operating an amusement ride in a manner or

circumstance that presents a risk of serious

injury to patrons, in that Respondent failed

to monitor every section of the go - cart

track "Comma nder Track" (USAID #05211)

during its operation, as required by Rule

5F - 08.015(4)(e), Florida Administrative

Code.

Violation # 2

Section 616.242(19)(a)1.b., Florida

Statutes:

Operating an amusement ride in a manner or

circumstance that presents a risk o f serious

injury to patrons, in that Respondent failed

to monitor every section of the go - cart

track "Quad Helix Track" (USAID #05212)

during its operation, as required by Rule

5F - 08.015(4)(e), Florida Administrative

Code.

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

reads, as follows:

(a) The department may deny, suspend for a

period not to exceed 1 year, or revoke any

permit or inspection certificate. In

addition to denial, suspension, or

revocation, the department may impose an

administrativ e fine of up to $2,500 per

violation, per day, against the owner of the

amusement ride if it finds that:

1. An amusement ride has operated or is

operating:

* * *

b. In a manner or circumstance that

presents a risk of serious injury to

patrons ; . . . .

17. Florida Administrative Code Rule 5F - 8.015(4)(e) reads

as follows:

Every section of the track shall be

monitored during its operation. This shall

be done visually by attendants or by

electronic visual and audio means.

18. In the instant c ase, it can be argued that the tracks

in question were being electronically monitored, even though the

video screens themselves were not the subject of constant

attention. The evidence obviates the necessity of that

discourse , because Petitioner has faile d to carry the "clear and

convincing" burden of proo f. The evidence demonstrates that

there were sufficient attendants on duty and in appropriate

locations to monitor the tracks in question.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conc lusions of

Law, it is:

RECOMMENDED that Petitioner, Department of Agriculture and

Consumer Services, enter a final Order dismissing the

Administrative Complaint directed to Respondent, Fun Spot of

Florida, Inc., dated August 23, 2007.

DONE AND ENT ERED t his 29th day of February , 2008 , in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 306 0

(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 , 2008 .

ENDNOTE

1/ All references are to 200 6 Florida Statutes, unless

otherwise indicated.

COPIES FURNISHED :

Robert W. Anthony, Esquire

Fassett, Anthony & Taylor, P.A.

1325 West Colonial Drive

Orlando, Florida 32804

William N. Graham, Esquire

Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 Sou th Calhoun Street

Tallahassee, Florida 32399 - 0800

Honorable Charles H. Bronson

Commissioner of Agriculture

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Richard Ditschler, General Coun sel

Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.