Article 27. Carnival, Fair and Amusement Park Safety

Section 870-a. Legislative intent.

1. The purpose of this article is to guard against personal injuries in the assembly, disassembly and use of amusement devices, viewing stands and tents at carnivals, fairs and amusement parks to persons employed at or attending the same, and, in the event of a personal injury, to insure to the injured party the possibility of financial recovery as against the owner of the carnival, fair or amusement park where the injury occurred.

2. It is the intent of this article that such devices, viewing stands and tents shall be so designed, constructed, assembled or disassembled, maintained and operated as to prevent such injuries.

Section 870-b. Application.

1. This article applies to amusement devices, viewing stands and tents at carnivals, fairs and amusement parks where an admission or fee is customarily or usually charged located within the state, and to the managers of such devices, to the persons employed in connection with the same and to their employees.

2. This article shall not apply to single passenger, coin-operated, manually, mechanically or electrically operated rides, except where admission is charged for the use of the equipment, nor shall this article be construed so as to limit the right of any person to conduct any hotel, restaurant or eating place at any amusement park.

Section 870-c. Definitions.

As used herein, the following terms have the meanings indicated:

1. "Amusement device" means any contrivance that carries and conveys passengers along, around or over a fixed or restricted course or within a defined area for the purpose of amusing or entertaining its passengers, and which is of such nature that accidental personal injuries may be incurred in its assembly, disassembly or use.

2. "Amusement park" means a tract or area used principally as a permanent location for amusement devices or structures.

3. "Commissioner" means the commissioner of labor of the state.

4. "Carnival" means an itinerant enterprise consisting principally of temporary amusement devices or mechanical rides, acrobatic or magic shows, games, stunts or zoo animals operated to provide entertainment or amusement to the public.

5. "Fair" means an enterprise principally devoted to the exhibition of the products of agriculture or industry and at which amusement devices or temporary structures, viewing stands or tents are provided for use by the public.

6. "Owner" means a person, corporation, partnership or association who owns an amusement device, viewing stand or tent or in the event that the amusement device, viewing stand or tent is leased, the lessee.

7. "Permanent device" means a device which is used, or intended to be used, as an amusement device that is erected to remain a lasting part of the premises.

8. "Temporary device" means a device which is used as an amusement device that is regularly relocated from time to time with or without disassembly.

9. "Serious injury" means a personal injury which results in death; dismemberment; significant disfigurement; a compound or comminuted fracture; or permanent loss of use of a body organ, member, function, or system; or loss of consciousness.

10. "Injury" means any personal injury which results in medical treatment.

11. "Safety coordinator" means a person suited by training or experience and designated by the owner or operator of an amusement park, fair or carnival as being in charge of the safety of all amusement devices located at the park, fair or carnival.

12. "Viewing stand" means a bleacher, grandstand or similar structure used at carnivals, fairs and amusement parks for public occupation, which has a capacity of one hundred or more persons, and which is of such nature that accidental personal injuries may be incurred in its assembly, disassembly or use.

13. "Permanent stand" means a viewing stand that is erected to remain a lasting part of the premises.

14. "Temporary stand" means a viewing stand that is designed to be relocated from time to time with or without disassembly.

15. "Tent" means a tent which has a capacity of three hundred or more persons and which is used at carnivals, fairs and amusement parks.

16. "Permanent tent" means a tent that is erected to remain a lasting part of the premises.

17. "Temporary tent" means a tent that is regularly relocated from time to time.

Section 870-d. Issuance of permit.

No amusement device, viewing stand or tent may be operated in the state without a permit issued by the commissioner except as provided in section eight hundred seventy-m of this article. Such permits are not transferable and if any permit holder voluntarily discontinues operation of the amusement device, viewing stand or tent, all rights secured under the permit are terminated.

1. Before commencement of the operation of a permanent or temporary device, viewing stand or tent, the owner or lessee shall make written application to the commissioner for a permit to operate, which shall be accompanied by an annual non-refundable fee of one hundred dollars for each amusement ride device. The permit shall be valid for a period of one year.

2. No temporary device, viewing stand or tent shall be used at any time or location unless prior notice of intent to use same has been given to the commissioner. Notice of planned schedules shall (a) be in writing, (b) identify the temporary device, viewing stand or tent, (c) state the intended dates and locations of use, (d) be mailed to the commissioner at least fifteen days before the first intended date of use.

3. A permit to operate shall be issued to the owner or lessee of an amusement device, viewing stand or tent when:

(a) written application has been made to the commissioner;

(b) the amusement device, viewing stand or tent has passed all required inspections; and

(c) the liability insurance or bond required by section eight hundred seventy-f of this article has been met in the amount prescribed.

4. The commissioner may revoke any permit issued pursuant to this article if it is determined that an amusement device, viewing stand or tent is:

(a) being used or operated without the inspections required by section eight hundred seventy-e of this article; or

(b) being used or operated without the insurance or other security required by section eight hundred seventy-f of this article; or

(c) being used or operated with a mechanical, structural or design defect which presents an excessive risk of serious injury to passengers or members of the public.

5. Any other violation of this article may result in a revocation, provided that written notice of non-compliance is served upon the owner specifying any violation of this article and directing the owner to correct such violations within thirty days of receipt of such notice.

6. Nothing herein shall prevent an owner whose permit to operate an amusement device, viewing stand or tent has been revoked pursuant to this section from reapplying for a permit in accordance with this article.

Section 870-e. Inspections.

Before a permit may be issued as provided in section eight hundred seventy-d of this article, an inspection of the amusement device, viewing stand or tent shall be made in compliance with the procedures set by the commissioner. Such inspection shall have been conducted within one year prior to the permit application, unless such period shall have been extended by operation of subdivision four of this section.

1. In the case of a permanent device, viewing stand or tent, the amusement device, viewing stand or tent must be inspected by the commissioner or his authorized representative, or in the city of New York, by the building department, at the time of application for the initial permit. In the case of an amusement device deemed by the commissioner to normally be operated at speeds or with movements creating severe centrifugal forces, the owner or operator making the permit application for such device shall have available for inspection such recommended maintenance and safety schedules or requirements as are supplied by the manufacturer of the device. An initial operating permit shall not be granted in the absence of these documents. Thereafter, the amusement device, viewing stand or tent must be inspected at least annually by a licensed architect, professional engineer, qualified inspector of an insurance underwriter, or an inspector approved by the commissioner as a requirement for the issuance of each subsequent permit. Such inspection shall at minimum comply with the requirements of the commissioner, provided that for amusement devices, at the time of each such annual inspection, the owner or operator of such device shall have available for inspection such recommended maintenance and safety schedules or requirements as are supplied by the manufacturer of the device and shall have available documentation that such maintenance and testing as are called for by the device manufacturer have been performed during the term covered by the previous operating permit. No subsequent operating permit shall be granted in the absence of these documents. An affidavit of the annual inspection shall be filed with the commissioner.

2. In the case of a temporary device, viewing stand or tent, upon first entry into the state, the amusement device, viewing stand or tent must be inspected by the commissioner or his authorized representative for the permit to be issued. In the case of a temporary amusement device deemed by the commissioner to normally operate at speeds or with movements creating severe centrifugal forces the owner or operator making the permit application for such device shall have available for inspection such recommended maintenance and safety schedules or requirements as are supplied by the manufacturer of the device. An operating permit shall not be granted in the absence of these documents. Thereafter, the amusement device, viewing stand or tent must be inspected at least annually by a licensed architect, professional engineer, qualified inspector of an insurance underwriter, or an inspector approved by the commissioner as a requirement for the issuance of each subsequent permit. Such inspection shall at minimum comply with the requirements of the commissioner, provided that for amusement devices, at the time of each such annual inspection, the owner or operator of such device shall have available for inspection such recommended maintenance and safety schedules or requirements as are supplied by the manufacturer of the device and shall have available documentation that such maintenance and testing as are called for by the device manufacturer have been performed during the term covered by the previous operating permit. No subsequent operating permit shall be granted in the absence of these documents. An affidavit of the annual inspection shall be filed with the commissioner.

2-a. Where such maintenance and safety schedules as are called for in subdivisions one and two of this section do not exist or are not available due to circumstances beyond the control of the owner or operator of an amusement device, the owner or operator shall, within six months of the discovery of the unavailability of such standards, submit to the commissioner a proposed schedule of maintenance for that amusement device consistent with the standards for the testing and maintenance of such devices established in accordance with the rules and regulations promulgated pursuant to subdivision six of this section and shall henceforth be the schedule with which the owner or operator must comply to qualify for annual operating permits.

2-b. None of the provisions contained in subdivision two-a of this section shall be interpreted as to prevent the owner or operator of an amusement device from receiving an annual permit to operate such device during the proposed maintenance schedule submission process described in such subdivision provided that such owner or operator meets all the requirements for an annual operating permit as they exist prior to the effective date of this subdivision.

2-c. The owner or operator of an amusement device shall conspicuously post a sign containing safety guidelines to be followed by patrons while on or in the amusement device and behavior or activities which are prohibited as threats either to the patrons themselves, other patrons or the general public. Such signs shall contain warnings that there are inherent risks in the participation in or on the amusement device, since it is recognized that participation in or on the device may be hazardous regardless of all feasible safety measures that can be undertaken by the device owner or operator; and that there is a duty for the patrons to become apprised of the warnings and the risks inherent in participation in or on the amusement device if the warnings are not obeyed. Prior to participating in or on such amusement device, patrons shall familiarize themselves with the posted safety warnings so that they may make an informed decision of whether to participate in or on the device notwithstanding the risks.

3. In the case of an amusement device, viewing stand or tent which is substantially rebuilt or substantially modified so as to change the structure, mechanism, or capacity of the device, viewing stand or tent, the owner or lessee shall give written notice to the commissioner who shall cause the device, viewing stand or tent to be inspected prior to the time in which it is put into operation and who shall cause any current permit to be updated so as to include any modifications made to the device, viewing stand or tent.

4. In the event an operator is unable to secure an inspection by his insurance carrier within one year from the date of the previous inspection, such previous inspection shall be deemed valid for purposes of this article for a period of thirty additional days, provided such operator made an inspection request to his insurance carrier at least sixty days prior to the inspection anniversary date.

5. No amusement device, viewing stand or tent which fails to pass an inspection shall be operated for public use until it has passed a subsequent inspection.

*6. The department shall operate, maintain and regularly update an internal electronic database recording the date of every inspection performed by the state pursuant to this section on each amusement device operated in this state, and a record of any amusement device which has had its permit revoked by the commissioner and the date of such revocation, the date when the permit for such amusement device is reissued, the safety record of each such device, including a record of any serious injury occurring on such device and the time and date of such injury. On or before February first each year, the department shall submit a report to the governor and the legislature on the safety record of the industry including any revoked permits of amusement devices and the safety records of serious injuries occurring on amusement devices in the state during the preceding calendar year.

*NB Effective upon an appropriation becoming law in fiscal year 2007

*NBThere are 2 sb 6's

*6. The commissioner shall, in consultation with the carnival, fair and amusement park safety advisory board as established under section eight hundred seventy-n of this article, as added by a chapter of the laws of two thousand six, establish rules and regulations providing standards for the design, manufacture, testing, inspection, quality assurance and terminology of amusement devices. The rules and regulations established pursuant to this subdivision shall be consistent with the national standards for amusement devices, as established by the American Society of Testing and Materials.

*NB There are 2 sb 6's

Section 870-f. Liability insurance.

Before the commissioner may issue a permit to the owner or lessee of an amusement device, viewing stand or tent, the owner or lessee of such device, viewing stand or tent shall furnish the commissioner with proof that he has purchased insurance or posted cash or other security in an amount not less than one million dollars per occurrence or a bond in an amount not less than two million five hundred thousand dollars in the aggregate against liability for injury to persons arising out of the use of the amusement device, viewing stand or tent. In the event such liability insurance is cancelled, the insurer shall give thirty days' prior notice of such cancellation to the commissioner.

Section 870-g. Reports of injuries.

1. The owner or lessee of any amusement device, viewing stand or tent which, during the course of its operation, is involved in an accident which results in an injury shall report such injury to the owner's or lessee's insurer.

2. The owner or lessee of any amusement device, viewing stand or tent which, during the course of its operation, is involved in an accident which results in a serious injury shall report such injury to the commissioner prior to the close of business of the commissioner's next business day.

3. When a serious injury occurs involving the operation of an amusement device, viewing stand or tent, the owner or lessee shall immediately shut down the device, viewing stand or tent from further use. (a) In the case of an amusement device, the device may not resume operation until the safety coordinator determines that the serious injury was not caused by a mechanical or structural defect in the amusement device; (b) In the case of a viewing stand or tent, the stand or tent may not be occupied again until the commissioner or the safety coordinator determines that the serious injury was not caused by a mechanical or structural defect in the viewing stand or tent.

4. If the safety coordinator determines that a serious injury was caused by a mechanical or structural defect, the device shall remain shut down until such repairs are completed and the device is deemed operational by a licensed architect, professional engineer, qualified inspector of an insurance underwriter or an inspector approved by the commissioner. An affidavit of such inspection and correction of defect shall be filed with the commissioner.

Section 870-h. Notice to owners.

The commissioner shall furnish to all owners, lessees and operators of amusement devices, viewing stands and tents notice of all rights and obligations prescribed under this article upon receipt of permit applications.

Section 870-i. Additional rule making.

The commissioner may make additional rules consistent with this article guarding against personal injuries in the assembly, disassembly and use of amusement devices, viewing stands and tents at carnivals, fairs and amusement parks to persons employed at or to persons attending the carnivals, fairs and amusement parks. Where the carnivals, fairs and amusement parks are located within the city of New York, the department of buildings of the city of New York may also make and enforce such additional rules.

Section 870-j. Civil penalties.

1. Any person who knowingly and willfully operates an amusement device, viewing stand or tent without any of the following:

(a) the permit required by section eight hundred seventy-d of this article; or

(b) the inspections required by section eight hundred seventy-e of this article; or

(c) the insurance or other security required by section eight hundred seventy-f of this article shall be subject to a civil penalty of not less than two thousand dollars, nor more than four thousand dollars, for each day the violation continues.

2. Any person who operates an amusement device, viewing stand or tent without any of the following:

(a) the permit required by section eight hundred seventy-d of this article; or

(b) the inspections required by section eight hundred seventy-e of this article; or

(c) the insurance or other security required by section eight hundred seventy-f of this article shall be subject to a civil penalty of not less than two thousand dollars, nor more than four thousand dollars.

3. The commissioner, in assessing penalties under subdivision one of this section, shall give due consideration to the appropriateness of the penalty with respect to the size of the owner's or lessee's business, the good faith of the owner or lessee and his history of previous violation.

4. Any operator of an amusement device who has been subject to a civil penalty imposed pursuant to this section relating to the operation of such amusement device on two or more occasions within any five year period of time shall not operate the amusement device in this state, and such device shall be taken out of service as soon as practicable. When an amusement device is taken out of service pursuant to this subdivision, the operator of such device shall sign an affidavit, in a form approved by the commissioner, that the amusement device was taken out of service and will remain out of service until such time as the commissioner determines that the amusement device meets all safety requirements established pursuant to this article. Any operator of an amusement device, which is sworn to have been taken out of service, who operates or allows to be operated such device, in violation of the operator's affidavit, shall be subject to a fine of ten thousand dollars.

Section 870-k. Criminal penalties.

1. (a) Any owner or lessee of an amusement device, viewing stand or tent who wilfully violates any provision of this article or any rule, regulation, standard or order promulgated pursuant to this article, and that violation causes physical injury to any member of the public exposed to the violation, is guilty of a class A misdemeanor and upon conviction shall be sentenced in accordance with the provisions of the penal law.

(b) Any owner or lessee of an amusement device, viewing stand or tent who wilfully violates any provision of this article or any rule, regulation, standard or order promulgated pursuant to this article, and that violation causes death or serious physical injury to any member of the public exposed to the violation, is guilty of a class E felony and upon conviction shall be sentenced in accordance with the provisions of the penal law.

(c) For the purposes of this subdivision, the term "physical injury" shall have the same meaning as that term is defined in subdivision nine of section 10.00 of the penal law and the term "serious physical injury" shall have the same meaning as that term is defined in subdivision ten of section 10.00 of the penal law.

2. A person who knowingly makes any false statement, representation, or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to this article, is guilty of a misdemeanor and upon conviction is subject to a fine of not more than two thousand five hundred dollars or imprisonment for not more than six months, or both.

3. Nothing contained in this section shall be construed to limit or preclude a prosecution under any provision of the penal law.

Section 870-l. Local regulations.

Nothing in this article shall be so construed as to prevent municipalities from enacting regulations more restrictive than the provisions set forth by this article.

Section 870-m. Exceptions.

(a) In the case of an amusement device, viewing stand or tent operated in a carnival, fair or amusement park located in a city having a population of over one million, a permit or license issued by such city shall satisfy the requirements of section eight hundred seventy-d of this article, provided that all the requirements for issuance of a permit by the commissioner have been satisfied.

(b) This article shall not apply to the use of a viewing stand or tent on any state or county fairgrounds or to the use of a viewing stand or tent owned, leased or operated by any bona fide religious, charitable, educational, fraternal, service, veteran or volunteer firemen organization; except that it shall apply to any private owner or lessee who operates an amusement device, viewing stand or tent on a state or county fairgound, or for or on behalf of such organization.

Section 870-n. Carnival, fair and amusement park safety advisory board.

1. To advise the commissioner in relation to industry standards for carnivals, fairs, amusement parks, amusement devices, tents and viewing stands, and his or her duties and powers pursuant to this article, there shall be established in the department an advisory board, to be known as the "carnival, fair and amusement park safety advisory board", consisting of eleven members to be appointed as follows: five members shall be appointed by the governor, two members shall be appointed by the temporary president of the senate, two members shall be appointed by the speaker of the assembly, one member shall be appointed by the minority leader of the senate, and one member shall be appointed by the minority leader of the assembly. The members of such advisory board shall each be a representative of amusement parks; operators of temporary amusement devices; businesses engaged in the rental of temporary amusement devices; manufacturers and suppliers of amusement devices, tents or viewing stands; or the general public. The governor shall appoint the chair of the board from amongst the members appointed by him or her.

2. Each member of the advisory board shall serve a term of five years, or until his or her successor is appointed; provided that of the members initially appointed to the advisory board: one member appointed by the governor and the member appointed by the minority leader of the assembly shall serve terms of one year; one member appointed by the governor and one member appointed by the temporary president of the senate shall serve terms of two years; one member appointed by the governor and one member appointed by the speaker of the assembly shall be appointed for terms of three years; one member appointed by the governor and one member appointed by the minority leader of the senate shall be appointed for terms of four years; and one member appointed by the governor, one member appointed by the temporary president of the senate and one member appointed by the speaker of the assembly shall be appointed for terms of five years. Any member of the board chosen to fill a vacancy occurring otherwise than by expiration of term shall be appointed for the unexpired term of the member who he or she is to succeed.

3. Each member of the advisory board shall serve without salary or other compensation, but shall be allowed necessary and actual transportation expenses incurred in the performance of his or her duties.

4. The advisory board shall consider all matters relating to the implementation of the provisions of this article and advise the commissioner with respect thereto, and on its own initiative may make recommendations to the commissioner as to any rules, regulations and statutes necessary to assure amusement park, carnival and fair safety.

5. The commissioner shall designate an officer or employee of the department to act as secretary to the advisory board, who shall not be a member of such board and who shall not receive any additional compensation therefor.

6. The advisory board may adopt by-laws to govern its own proceedings. The secretary of the board shall keep a complete record of all proceedings of the advisory board which shows the names of the members present at each meeting and every matter considered by the advisory board and the action taken thereon. Such records shall be filed in the office of the department.

Section 870-o. Amusement device and attraction awareness.

The department shall develop, establish and implement, in cooperation with the carnival, fair and amusement park safety advisory board established in section eight hundred seventy-n of this article, a program to educate and provide awareness to the public on the risks of amusement devices and attractions to both adults and children, and how adults can take steps to assure their own safety and the safety of children in their care. The program established pursuant to this section shall provide and disseminate guidelines for safety while riding or using amusement devices or attractions by adults, adolescents and children. Such program shall utilize written information provided to the public and the posting of conspicuous signs at carnivals, fairs and amusement parks, as required by law or regulation.