HOUSE BILL 493
53rd legislature - STATE OF NEW MEXICO - first session, 2017
INTRODUCED BY
Jane E. Powdrell-Culbert
AN ACT
RELATING TO TRADE PRACTICES; PROVIDING FOR INCREASED OVERSIGHT OVER AMUSEMENT RIDES AND DEVICES TO SAFEGUARD AGAINST PERSONAL INJURIES AND PROPERTY DAMAGE; REPEALING A SECTION OF THE NMSA 1978 EXEMPTING NONPROFIT ORGANIZATIONS FROM COMPLIANCE WITH AMUSEMENT RIDE AND DEVICE CERTIFICATION REQUIREMENTS; PROVIDING PENALTIES; MAKING TECHNICAL AND CONFORMING CHANGES.
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 amended to read:
"57-25-1. SHORT TITLE.--[This act] Chapter 57, Article 25 NMSA 1978 may be cited as the "[Carnival] Amusement Ride [Insurance] and Device Safety Act"."
SECTION 2. A new section of the Amusement Ride and Device Safety Act is enacted to read:
"[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 and use of amusement rides or devices and to certify that amusement rides or devices are designed, constructed, assembled or disassembled, maintained, operated and inspected to avoid injuries or property damage."
SECTION 3. Section 57-25-2 NMSA 1978 (being Laws 1993, Chapter 284, Section 2, as amended) is amended to read:
"57-25-2. DEFINITIONS.--As used in the [Carnival] Amusement Ride [Insurance] and Device Safety Act:
A. "[carnival] amusement ride or device" means [any]:
(1) a mechanical device, aquatic device or combination of devices, including a vehicle or boat, that carries or conveys passengers on, along, around, through or over a fixed or restricted route or course or within a defined area for the purpose of giving its passengers amusement, pleasure, thrills or excitement; including ziplines, bungee jumping facilities and state fair rides, but does not include playground equipment, a single-passenger, coin-operated device secured by a stationary foundation or a small promotional event or operation consisting of fewer than six kiddie rides designed for children twelve years of age or younger, including merry-go-rounds;
(2) a mechanical or manual piece of equipment made for a specific purpose, that when used or operated for its specific purpose allows a person to participate in an activity for thrill, pleasure, climbing, suspension or a similar activity and that, without the use or operation of the equipment, the person could not typically participate in the activity;
(3) a building, structure or part of a structure, including a rock climbing face, wall or facility, used for the purpose of providing its users with amusement, pleasure, thrill or excitement or facilitating climbing, suspension or a similar activity, and includes electrical or mechanical equipment if such equipment is an integral part of the structure; or
(4) a ride or device designed for individuals to use to bounce, climb, slide or interactively play upon that is made of flexible fabric or material, is kept inflated while in use and relies upon air pressure to maintain its inflation;
B. "approved inspector" means an individual who is registered with the department to inspect amusement rides or devices;
C. "bungee jumping" means an activity in which an individual falls or jumps from a height above the ground, 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, water or other solid, semi-solid, liquid or elastic surface;
D. "certification" means the department's approval of the operation of an amusement ride or device;
[B.] E. "department" means the regulation and licensing department;
[C.] F. "inspection" means a physical examination of [a carnival ride] an amusement ride or device by an approved inspector [of the regulation and licensing department] prior to [issuing] the issuance of a certificate of inspection [including] or certificate of reinspection;
G. "local entity" means a private or public person that has legal control of the property on which an amusement ride or device is operated, including the state fair commission, a municipal park commission or a private landowner;
[D.] H. "operator" means a person actually engaged in or directly controlling the operation of [a carnival] an amusement ride or device; and
[E.] I. "owner" means a person, including the state or any political subdivision of the state, [who] that owns or leases [a carnival ride] an amusement ride or device for use in an enterprise or at an event, whether or not a fee is paid for such use."
SECTION 4. Section 57-25-3 NMSA 1978 (being Laws 1993, Chapter 284, Section 3, as amended) is amended to read:
"57-25-3. CERTIFICATION REQUIRED--LIABILITY INSURANCE REQUIRED--CERTIFICATE OF INSPECTION REQUIRED--[CARNIVAL RIDE INSURANCE FUND CREATED] APPROVED INSPECTOR REQUIREMENTS.--
A. No person, owner or operator of an amusement ride or device shall operate the amusement ride or device without first obtaining certification from the department. Certification shall be based upon submissions to the department of a properly completed application, proof of insurance, a certificate of inspection and payment of the certification fee. For each amusement ride or device certified by the department, the department shall issue a certification sticker that shall be displayed on the amusement ride or device.
B. No person shall operate [a carnival] an amusement ride or device without a policy of insurance in an amount not less than three million dollars ($3,000,000) in the aggregate against liability for injury to persons or damage to property arising out of the operation of the [carnival] amusement ride or device. The policy shall be procured from an insurer licensed to transact business in this state as verified by the office of superintendent of insurance.
[B. Either] C. A copy of the policy furnished to the insured or a certificate stating that the insurance required by this section is in effect shall be filed with the department and [a] the local [government] entity.
[C.] D. The policy shall contain a schedule listing by name, year, make, model and serial number each [carnival] amusement ride or device insured by the policy. In the event of additions or deletions of [carnival] amusement rides or devices during the policy terms, such changes shall be shown on a change endorsement, a copy of which shall be submitted to the department and the local [government] entity. The policy shall list the department as the certificate holder.
[D.] E. In the event of policy cancellation by either the insured owner or operator or the insurance company, the insured shall furnish notice of the cancellation to the department and the local [government] entity not later than ten days prior to cancellation. Cancellation of an insurance policy shall immediately suspend an amusement ride or device's certification and operation of the amusement ride or device shall cease until certification is reinstated by compliance with the requirements of the Amusement Ride and Device Safety Act.
[E. No person, owner or operator of a carnival ride shall operate any carnival ride without obtaining]
F. A certificate of inspection shall be obtained for each amusement ride [by] or device from an approved inspector [of the department or its designee and filing the certificate of inspection] and shall be filed with the department and the local [government] entity. The inspection shall be consistent with the current American society for testing materials international standards and the national electrical code article 525 standards. The owner or operator shall annually have each [carnival] amusement ride or device inspected and annually file the certificate of inspection. The certificate of inspection shall state that the [carnival] amusement ride or device operator or owner has had the [rides] amusement ride or device independently inspected by [a national amusement ride safety official class 1, 2 or 3] an approved inspector within twelve months of the operation of the amusement ride or device within the state and whether any deficiencies noted by the [engineer] approved inspector have been corrected. [In addition]
G. The owner or operator of the amusement ride or device shall inspect the ride or device each day the ride or device is [operated] in operation before any member of the public is permitted [to board] access to the ride or device. The owner or operator shall keep a current log of such inspections, which shall be available for review by state or local enforcement officials during operating hours.
H. The department may require reasonable supplemental inspections in addition to any required inspections to ensure the continued safety of an amusement ride or device, including a requirement to have an inspector on the premises for the duration of an event using the amusement ride or device.
[F.] I. The insured shall pay to the department a [fifty dollar ($50.00) per carnival ride per inspection filing fee with the department.
G. The "carnival ride insurance fund" is created in the state treasury. The fund shall consist of all filing fees received by the department pursuant to the Carnival Ride Insurance Act. Money in the carnival ride insurance fund is appropriated to the department for the purpose of carrying out the provisions of the Carnival Ride Insurance Act. The fund shall not be expended for any purpose other than carrying out the provisions of the Carnival Ride Insurance Act.] sixty-five-dollar ($65.00) filing fee per amusement ride or device.
J. A person holding one or more level I, level II or level III amusement ride and device inspector certifications issued by the national association of amusement ride safety officials shall register with the department to become an approved inspector by submitting proof of certification to the department on a form approved by the department along with a thirty-five-dollar ($35.00) filing fee. The department shall issue a certificate of registration to an approved inspector."
SECTION 5. Section 57-25-4 NMSA 1978 (being Laws 1993, Chapter 284, Section 4) is amended to read:
"57-25-4. PENALTY.--
A. The department or its authorized representative may issue a written order for the immediate, temporary cessation of operation of [a carnival] an amusement ride or device if it has been determined that the owner or operator has not acquired or maintained a current policy of insurance; [or] has not maintained inspections or obtained the proper department certification of [his carnival rides] the amusement ride or device; or it is determined after inspection that the 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 American society for testing materials international standards or the national electrical code. The operation of [the] an amusement ride or device shall not resume until the requisite insurance is in effect, inspections have been made and the requisite certificates have been filed with the department [and the local government entity] or the hazardous or unsafe condition is remedied to the satisfaction of the superintendent of regulation and licensing.
B. The department may appear in its own name in the district court of Santa Fe county or any other county having jurisdiction to prevent violations or to enforce the provisions of the [Carnival] Amusement Ride [Insurance] and Device Safety Act, the orders, rules and regulations, codes and minimum standards made pursuant to [this] that act by injunction, mandamus or any other proper legal proceeding without bond, including an order not to move the [carnival] amusement ride or device.
C. The local law enforcement agency shall have the authority to enforce the provisions of the [Carnival] Amusement Ride [Insurance] and Device Safety Act. [Any] A person who does not maintain liability insurance on [a carnival] an amusement ride or device, operates [a carnival] an amusement ride or device or authorizes the operation of [a carnival] an amusement ride or device that does not have insurance, does not annually have [his carnival rides] the amusement ride or device inspected or does not file the proper certificates as set forth in the [Carnival] Amusement Ride [Insurance] 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) a day for the operation of each ride or device.
D. A person is subject to a civil penalty not to exceed one thousand dollars ($1,000) per amusement ride or device for each day of noncompliance with any provision of the Amusement Ride and Device Safety Act or rules promulgated pursuant to the act. All civil actions shall comply with the procedures set out in the Uniform Licensing Act."
SECTION 6. Section 57-25-5 NMSA 1978 (being Laws 1993, Chapter 284, Section 5) is amended to read:
"57-25-5. LIABILITY--LIMITATIONS.--No provision of the [Carnival] Amusement Ride [Insurance] and Device Safety Act shall be construed to place any liability on the state or on the department with respect to any claim by any [person] individual, firm or corporation relating to [a carnival] an amusement ride or device or to any injury or damages arising from [a carnival] an amusement ride or device."
SECTION 7. A new section of the Amusement Ride and Device Safety Act is enacted to read:
"[NEW MATERIAL] AMUSEMENT RIDE AND DEVICE SAFETY FUND.--The "amusement ride and device safety fund" is created in the state treasury. The fund shall consist of all filing fees received by the department pursuant to the Amusement Ride and Device Safety Act. Money in the amusement ride and device safety fund is appropriated to the department for the purpose of carrying out the provisions of the Amusement Ride and Device Safety Act. The fund shall not be expended for any purpose other than carrying out the provisions of the Amusement Ride and Device Safety Act."
SECTION 8. REPEAL.--Section 57-25-6 NMSA 1978 (being Laws 1993, Chapter 284, Section 6) is repealed.
SECTION 9. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2017.
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