HOUSE BILL 469
54th legislature - STATE OF NEW MEXICO - first session, 2019
INTRODUCED BY
Linda M. Trujillo
AN ACT
RELATING TO AMUSEMENT RIDES AND DEVICES; REPEALING THE CARNIVAL RIDE INSURANCE ACT; ENACTING THE AMUSEMENT RIDE AND DEVICE SAFETY ACT; REQUIRING AMUSEMENT RIDE AND DEVICE CERTIFICATION WITH THE REGULATION AND LICENSING DEPARTMENT; REQUIRING PROOF OF INSURANCE; REQUIRING THIRD PARTY INSPECTIONS; PROVIDING FOR FEES; CREATING A FUND; PROVIDING ENFORCEMENT POWERS AND PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 57-25-1 NMSA 1978 (being Laws 1993, Chapter 284, Section 1) is repealed and a new Section 57-25-1 NMSA 1978 is enacted to read:
"57-25-1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Amusement Ride and Device Safety Act"."
SECTION 2. Section 57-25-2 NMSA 1978 (being Laws 1993, Chapter 284, Section 2, as amended) is repealed and a new Section 57-25-2 NMSA 1978 is enacted to read:
"57-25-2. [NEW MATERIAL] PURPOSE.--The purpose of the Amusement Ride and Device Safety Act is to guard against personal injuries or property damage during the assembly, disassembly, use and operation of amusement rides or devices used in amusement activities and to certify that amusement rides or devices are designed, constructed, assembled, disassembled or reassembled, maintained, inspected and operated in a manner that avoids injuries or property damage."
SECTION 3. Section 57-25-3 NMSA 1978 (being Laws 1993, Chapter 284, Section 3, as amended) is repealed and a new Section 57-25-3 NMSA 1978 is enacted to read:
"57-25-3. [NEW MATERIAL] DEFINITIONS.--As used in the Amusement Ride and Device Safety Act:
A. "aerial adventure course" means a patron participatory facility consisting of one or more elevated walkways, platforms, zip lines, nets, ropes or other elements that require the use of fall hazard personal safety equipment;
B. "amusement ride or device" means:
(1) a mechanical component or a combination of components that carry or convey a passenger on, along, around, through or over a fixed or restricted route or course or within a defined area for the purpose of giving the passenger amusement or excitement, including aerial adventure courses, zip lines, bungee jumping devices, activities using a belay or brake, kiddie rides, go carts, floating devices and water slides;
(2) a temporary or portable building, structure or part of a structure, including a rock-climbing face or wall used for the purpose of providing its users with amusement, excitement or to facilitate climbing, suspension or a similar activity, and including electrical or mechanical equipment if the equipment is an integral part of the activity; and
(3) a ride or device designed for one or more members of the public to use to bounce, climb, slide or interactively play upon that is made of flexible fabric or other flexible material, including trampoline facilities or a ride or device that, if inflatable, is kept inflated while in use and relies upon air pressure to maintain its inflation, including inflatable bounce houses or slides;
C. "approved inspector" means a third-party inspector registered with the department and qualified by training to conduct an inspection of an amusement ride or device for operation in this state;
D. "bungee jumping" means an activity in which an individual falls or jumps from a height above the ground, and in which, prior to the fall or jump, the individual is attached to an activity device, such as a cord, that prevents the individual from hitting the ground or other solid, semisolid, liquid or elastic surface;
E. "certification" means the department's written approval of an application to operate an amusement ride or device within this state;
F. "department" means the regulation and licensing department;
G. "independent inspection" means a physical examination of an amusement ride or device conducted by an approved inspector to determine whether an amusement ride or device is being constructed, assembled, maintained, tested, operated or inspected in accordance with the manufacturer's standards and criteria, or the insurer's standards, whichever is more stringent, and that determines the current operational safety of the amusement ride or device;
H. "information plate" means a manufacturer-issued plate permanently affixed to an amusement ride or device in a visible location that is designed to remain legible for the expected life of the amusement ride or device;
I. "inspection report" means a form approved by the department that is completed by an approved inspector and submitted to the department for each amusement ride or device inspection conducted by the approved inspector;
J. "operator" or "owner" means an individual or a person, or the individual's or person's agent, that owns or controls, or has the duty to control, the operation of an amusement ride or device, whether or not a fee is paid for such use, but does not include the passenger or patron using an amusement ride or device;
K. "operator inspection" means a physical inspection of an amusement ride or device conducted by the amusement ride or device owner or operator in accordance with the manufacturer's standards;
L. "person" means an individual, firm, partnership, corporation, company, association or other business entity; and
M. "superintendent" means the superintendent of regulation and licensing."
SECTION 4. Section 57-25-4 NMSA 1978 (being Laws 1993, Chapter 284, Section 4) is repealed and a new Section 57-25-4 NMSA 1978 is enacted to read:
"57-25-4. [NEW MATERIAL] CERTIFICATION REQUIRED--EXEMPTIONS.--
A. A person shall not operate an amusement ride or device that is subject to the provisions of the Amusement Ride and Device Safety Act without first obtaining certification from the department of each amusement ride or device as required pursuant to the Amusement Ride and Device Safety Act.
B. The provisions of the Amusement Ride and Device Safety Act shall not apply to:
(1) stationary coin-operated mechanical horse and mechanical rocket rides and other similar coin-activated or self-operated devices;
(2) non-mechanized playground equipment, including swings, seesaws, stationary spring mounted animal features, rider propelled merry-go-rounds, climbers, slides, swinging gates and physical fitness devices;
(3) live animal rides or live animal shows;
(4) climbing walls used for sport and fitness training located in educational facilities, gymnasiums, sport and public entity recreational facilities, or other facilities devoted to sport and recreational activities, training and instruction;
(5) skating rides, arcades, laser paintball games, bowling alleys, miniature golf courses, ball crawls, exercise equipment, jet skis, paddle boats, air boats, hot air balloons, whether tethered or untethered, batting cages, games and side shows; or
(6) an amusement ride or device operated at a private residence that is not open to the general public and not subject to a separate admission charge."
SECTION 5. Section 57-25-5 NMSA 1978 (being Laws 1993, Chapter 284, Section 5) is repealed and a new Section 57-25-5 NMSA 1978 is enacted to read:
"57-25-5. [NEW MATERIAL] ADMINISTRATION OF ACT.--
A. The department shall enforce and administer the provisions of the Amusement Ride and Device Safety Act.
B. The department shall adopt rules to carry out the provisions of the Amusement Ride and Device Safety Act."
SECTION 6. Section 57-25-6 NMSA 1978 (being Laws 1993, Chapter 284, Section 6) is repealed and a new Section 57-25-6 NMSA 1978 is enacted to read:
"57-25-6. [NEW MATERIAL] RIDE OR DEVICE CERTIFICATION REQUIREMENTS.--Prior to operating or leasing for use an amusement ride or device, an owner or operator shall obtain certification from the department for each amusement ride or device. The owner or operator shall provide to the department:
A. proof of liability insurance procured from an insurer licensed to transact business in this state for each amusement ride or device in an amount not less than one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) in the annual aggregate against liability for injury to persons or damage to property arising out of the operation of the amusement ride or device;
B. a certificate of insurance:
(1) stating that the insurance required pursuant to this section is in effect;
(2) naming the department as the certificate holder; and
(3) listing, by year, make, model and serial number, each amusement ride or device insured by the insurance policy required pursuant to this section; provided that, in the event of an addition or deletion of an amusement ride or device during the term of the policy, the change shall be shown on a change endorsement, a copy of which shall be submitted to the department;
C. a notice of cancellation not later than ten days prior to the effective date of the cancellation if an insurance policy required pursuant to this section is cancelled by either the insured owner or operator or the insurance provider; and
D. an inspection report obtained by an approved inspector for each amusement ride or device indicating:
(1) that the inspection was conducted in accordance with the current American society for testing materials international standards and with the national electrical code article 525 standards most recently adopted in this state;
(2) that the amusement ride or device was inspected within the twelve-month period prior to operation in this state;
(3) that the amusement ride or device was inspected each time the amusement ride or device was moved or reassembled; and
(4) whether any deficiencies noted by an inspector have been corrected."
SECTION 7. A new Section 57-25-7 NMSA 1978 is enacted to read:
"57-25-7. [NEW MATERIAL] TERM OF CERTIFICATION--RENEWALS.--
A. A certification issued pursuant to Section 57-25-6 NMSA 1978 shall be valid for one year from the date of issuance.
B. A certification pursuant to Section 57-25-6 NMSA 1978 that is not renewed on or before the expiration date shall expire. The owner or operator shall not operate the amusement ride or device within this state until the certification is renewed.
C. An owner or operator that operates an amusement ride or device without a valid certification is subject to the penalties provided in the Amusement Ride and Device Safety Act.
D. The department shall adopt and promulgate rules for renewal of an expired certification, including a late fee not to exceed twenty-five dollars ($25.00) for each amusement ride or device whose certification has expired."
SECTION 8. A new Section 57-25-8 NMSA 1978 is enacted to read:
"57-25-8. [NEW MATERIAL] ADDITIONAL INSPECTION REQUIRED BY OWNER OR OPERATOR.--The owner or operator of an amusement ride or device shall inspect the amusement ride or device each day that the amusement ride or device will be in operation before a member of the public is permitted access to the amusement ride or device. The owner or operator shall maintain a current log of the inspections and make the log available to the department or state or local law enforcement agencies during operating hours. The department may require reasonable supplemental inspections in addition to any required inspections to ensure the continued safety of an amusement ride or device, and may require that owner or operator have an inspector present at all times while amusement rides or devices are operating."
SECTION 9. A new Section 57-25-9 NMSA 1978 is enacted to read:
"57-25-9. [NEW MATERIAL] INFORMATION PLATE REQUIRED--CERTIFICATION STICKER REQUIRED.--For each amusement ride or device subject to the provisions of the Amusement Ride and Device Safety Act, an owner or operator shall ensure that the amusement ride or device:
A. has permanently affixed to its surface the correct manufacturer's information plate. The plate shall include:
(1) the serial number issued by the manufacturer as an identifying number or code;
(2) the amusement ride or device name and the manufacturer's name and address, including city, state and country;
(3) the model number, identifying number or code assigned to each manufactured amusement ride or device;
(4) the month and year of manufacture;
(5) the recommended operating speeds for the amusement ride or device, including maximum and minimum revolutions per minute, feet per second or miles per hour, as applicable;
(6) the direction of travel if the proper direction of travel is essential to the operation of the amusement ride or device, including a reference point for this designation;
(7) the maximum individual passenger weight capacity by passenger position and the maximum total weight capacity for all passengers; and
(8) the passenger capacity by maximum number of adult or child passengers per passenger position and per amusement ride or device; and
B. has affixed visibly to its surface a valid department-issued certification sticker. The certification sticker shall include all information required by rule, but at a minimum shall include the name of the owner or operator, the amusement ride or device serial number, the date of the most recent inspection and the name of the approved inspector that conducted the inspection."
SECTION 10. A new Section 57-25-10 NMSA 1978 is enacted to read:
"57-25-10. [NEW MATERIAL] INITIAL AND RENEWAL CERTIFICATION FEES.--An owner or operator of an amusement ride or device subject to the provisions of the Amusement Ride and Device Safety Act shall pay to the department a non-refundable initial certification and renewal fee not to exceed one hundred dollars ($100) per amusement ride or device."
SECTION 11. A new Section 57-25-11 NMSA 1978 is enacted to read:
"57-25-11. [NEW MATERIAL] APPROVED INSPECTORS--REGISTRATION--QUALIFICATIONS--REGISTRATION FEE.--The department shall issue an approved inspector registration to any person who submits a completed application accompanied by a registration fee not to exceed fifty dollars ($50.00), a current United States passport or state-issued driver's license or identification card and satisfactory evidence that the applicant holds:
A. a level I, II or III certification from the national association of amusement ride safety officials;
B. a level II or III certification from the amusement industry manufacturers and suppliers international;
C. a qualified inspector certification from the association for challenge course technology; or
D. a general qualified inspector status or other similar qualification from a nationally recognized organization approved by the department to conduct inspections of amusement rides or devices in accordance with industry standards and the manufacturer's recommendations and criteria."
SECTION 12. A new Section 57-25-12 NMSA 1978 is enacted to read:
"57-25-12. [NEW MATERIAL] FUND CREATED.--The "amusement ride and device safety fund" is created in the state treasury. The fund shall consist of all fees and penalties received by the department pursuant to the Amusement Ride and Device Safety Act. Money in the fund is appropriated to the department for the purpose of carrying out the provisions of the Amusement Ride and Device Safety Act. Money in the fund shall not revert to any other fund at the end of a fiscal year. Money in the fund shall be disbursed on warrants signed by the secretary of finance and administration pursuant to vouchers signed by the superintendent or the superintendent's authorized representative."
SECTION 13. A new Section 57-25-13 NMSA 1978 is enacted to read:
"57-25-13. [NEW MATERIAL] ENFORCEMENT POWERS--WARNING-- IMMEDIATE TEMPORARY CESSATION OF OPERATION ORDERS.--
A. The department may issue a written warning to an owner or operator if:
(1) the department has reasonable cause to believe that the owner or operator is operating or leasing an amusement ride or device in this state without first obtaining certification from the department; or
(2) the owner or operator, if certified, has violated a certification requirement not posing an imminent threat of injury to persons or damage to property.
B. A written warning shall contain a maximum time within which the owner or operator must obtain certification from the department or submit proof that the violation of a certification requirement has been corrected.
C. It is a violation of the Amusement Ride and Device Safety Act and the department shall issue a written order for the immediate, temporary cessation of operation of an
amusement ride or device if the department determines that:
(1) the owner or operator does not hold a current policy of insurance;
(2) the owner or operator has not maintained inspections or obtained the proper certification of an amusement ride or device;
(3) an amusement ride or device is hazardous or unsafe or for any good cause within the meaning and purpose of the Amusement Ride and Device Safety Act, including failure to install or operate the amusement ride or device in compliance with the law or failure to comply with the minimum safety standards approved by the American society for testing materials international standards or the national electrical code; or
(4) the owner or operator has failed to submit proof that a violation has been corrected within the time allowed pursuant to a written warning issued pursuant to Subsection B of this section.
D. An owner or operator shall not resume operation of an amusement ride or device that is subject to an immediate cessation order until the department issues a finding that the condition causing the violation has been corrected."
SECTION 14. A new Section 57-25-14 NMSA 1978 is enacted to read:
"57-25-14. [NEW MATERIAL] APPROVED INSPECTOR DISCIPLINE--REGISTRATION--NOTICE--HEARING PROCESS.--An individual denied an approved inspector registration or an individual whose approved inspector registration is suspended or revoked is entitled to notice and an opportunity for a hearing in accordance with the provisions of the Uniform Licensing Act."
SECTION 15. A new Section 57-25-15 NMSA 1978 is enacted to read:
"57-25-15. [NEW MATERIAL] CIVIL ENFORCEMENT--INJUNCTION--PENALTIES.--
A. The department may apply for an injunction in any court of competent jurisdiction to enjoin any person from continuing to operate an amusement ride or device in violation of Subsection C of Section 57-25-13 NMSA 1978. The attorney general or the district attorney in the district in which the violation occurred shall represent the department.
B. Upon application to a court of competent jurisdiction for the proper determination and enforcement of any provision of the Amusement Ride and Device Safety Act, including actions for injunctions and mandamus, the court may issue an order to restrain a person temporarily from engaging in the prohibited activity, including an order not to move an amusement ride or device. The court shall hear the matter and, upon a preponderance of the evidence that the person is not in compliance with the provisions of the Amusement Ride and Device Safety Act, the court shall enjoin the person from engaging in the prohibited activity.
C. The local law enforcement agency shall have the authority to enforce the provisions of the Amusement Ride and Device Safety Act. An owner or operator who does not maintain the required liability insurance on an amusement ride or device, operates an amusement ride or device or authorizes the operation of an amusement ride or device that does not have insurance, does not annually have the amusement ride or device inspected or has not obtained the proper certification from the department as set forth in the Amusement Ride and Device Safety Act is guilty of a misdemeanor, and upon conviction, the court shall impose a fine of up to one thousand dollars ($1,000) per amusement ride or device for each day the ride or device was operated in violation of this subsection."
SECTION 16. A new Section 57-25-16 NMSA 1978 is enacted to read:
"57-25-16. [NEW MATERIAL] REQUIRED NOTIFICATION.--The owner or operator of an amusement ride or device shall notify the department, within such time and in such manner as established by rule regarding:
A. any injury caused by an equipment failure of an amusement ride or device;
B. the installation of any new amusement ride or device; and
C. the schedule for the location of the operation of amusement rides or devices."
SECTION 17. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2019.
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