About Me

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I am a consultant and general counsel to International Ride Training LLC as well as a practicing attorney in Avon, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.

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Wednesday, August 10, 2011

Why Our Founding Fathers Would Have Been Against Federal Amusement Ride Regulation (Had They Known What Amusement Rides Were)

This morning, upon returning to my office from a few days off to visit with long-lost friends at my twenty-year high school reunion, I came across an article in USA Today with the rather misleading headline “Carnival Ride Safety Varies By State.”  I note that the headline is misleading because it erroneously implies that the article will discuss varying levels of ride safety itself in various states, i.e. that rides located in one state are inherently “more safe” than the same ride located in another state or that ride injuries or deaths are higher or lower in one state than another.  However, that is not at all what the article is about.  Really, the article focuses not on safety per se, but on the now familiar and oft discussed “patchwork” of state amusement ride regulations that consequently result in varying levels of inspections and oversight between the various states when it comes to inflatable and amusement ride regulation.  The article, as others have before, implies that this lack of regulatory uniformity somehow means that amusement rides in states with higher levels of oversight are more safe than rides with lesser inspection or reporting requirements.  Of course, no data is cited that would show that to be true.  Moreover, after reading this article, I had to wonder why the amusement industry so often is singled out for its “patchwork” regulatory oversight when, in reality, state-by-state regulation is, by design of our founding fathers, the rule rather than the exception in the United States.

A core tenant of our country’s Constitution is the notion of federalism.  In a nutshell, the founding fathers were very concerned that the United States not become a country where all power is relegated to a centralized and all-powerful government.  To avoid that, the framers of our Constitution set forth specific powers that the federal government had (things like taxing, the military, and regulation of interstate commerce) and left all the unenumerated powers to the individual states.  The notion of federalism means that we respect the states’ rights to set their own policies, to make their own decisions as to what issues are important to their residents, and that the federal government should not interfere with those policy decisions (even though it often does).  And it is because of this core tenant that the laws and regulations pertaining to innumerable facets of everyday life vary considerably depending on what state you happen to be in at any given time.

To illustrate,

  • Driving regulations vary considerably from state to state.  Some states, like Hawaii, have a maximum speed limit of 60 miles per hour while others, such as Montana, Nebraska, and Kansas, allow drivers to drive as fast as 75 miles per hour.   Drunk driving laws also vary considerably with some states considering a driver drunk with only a .2% blood alcohol level while other states do not consider a driver legally impaired until the blood alcohol level is greater than .8%. 
  • Attorneys are subject to varying oversight depending on the state in which they practice.  Some states require attorneys to complete minimum annual levels of continuing legal education while other states have no such requirements.  Some states require attorneys to have graduated from ABA-accredited law schools while some do not.  Even basic education and demonstrated competency in professional ethics varies from state to state – some states require minimum passing scores on a multi-state professional ethics examination and some states merely require that lawyers pass a course on the subject in law school.
  • Product liability laws vary greatly from state to state.  Some states, like Oregon, limit the liability of a manufacturer for product liability claims to a set number of years after the product was manufactured regardless of when the product causes an injury while other states, like Massachusetts, have no such statutory limitation.

These and other examples of varying regulations reflect important state-level policy considerations in the same way that varying amusement ride regulations do.  Does it mean that Hawaii cares more about automobile safety than Montana merely because Hawaii requires cars to be driven more slowly?  Not necessarily.  It could simply mean that Hawaii has a greater need for more stringent regulation because it has smaller roads that are more difficult to navigate at high speeds and therefore its legislature believes that a lower speed limit will help reduce the likelihood of accidents.  Montana, which is home to far more open space and a vast interstate highway system may not share the same policy concern and therefore its level of regulation varies accordingly. 

The same is true of the amusement ride industry and it is why state-level regulation makes imminently good sense.  State-by-state regulation, the basis for the much decried “patchwork” of regulations, allows individual states to assess their needs with respect to amusement regulation and to decide whether (and how much) taxpayer money should be devoted to the issue.   Consequently, some states, typically those with a large number of amusement rides like Ohio, California, and New Jersey, have made a policy decision that it would be in the best interests of their residents to have sophisticated and comprehensive amusement regulations in place.  Conversely, other states, typically those with fewer amusement rides such as Alabama, Mississippi, and Montana, have made the policy decision that amusement regulations are not in the best interests of their residents. 

Does this mean that those states without high levels of regulation are wrong or that rides in those states are less safe?  Not necessarily.  Federalism means that we must respect Montana's policy choice against amusement regulation to the same degree as we respect Massachusetts' choice in favor of it.  The lack of regulation in Montana may simply reflect the reality that state amusement oversight is not a high priority given the relatively few number of amusement rides in the state.  If the residents of Montana collectively decide that greater regulation is needed, they have the power of their vote to enact regulations that reflect their will – just as other states have done. 

So, while some in the media and certain members of Congress, such as Representative Edward Markey of Massachusetts, repeatedly state the need for greater federal oversight of fixed-site amusement rides (mobile rides are already subject to CPSC oversight), lacking from any of their discussion or talking points is an appreciation for the individual state policies reflected in the patchwork of regulations that our Constitutional system demands that we respect.  Everyone seems comfortable respecting our nation’s core belief in federalism when it comes to speed limits, attorney qualifications, and (to a lesser degree) tort law, but for some reason this is not the case when it comes to amusement regulation.  It should be.      

1 comment:

  1. Here is an interesting problem to consider regarding Federal oversight of amusement rides. In 2008 there was a catastrophic failure of a YO YO Ride at a fair in Calaveras County, CA. Cal DOSH investigated and the CPSC jumped in and cajoled the manufacturer into fixing the problem and issuing a recall. It turns out there was an identical YO YO Ride accident in 2006 at a Six Flags park in Texas. CPSC has no oversight on fixed amusement rides. They can only step in if there is a major failure of a portable amusement ride. If CPSC had been authorized to take action in 2006 the accident in 2008 would most likely not have happened. I know the Calaveras YO YO Ride case intimately because I was providing expert services for an attorney representing one family of plaintiffs. That case settled. I am not necessarily in favor of Federal Oversight. The majority of the States have adopted the ASTM F 24 Committee Standards as the basis for enforcement of their inspection. The enforcement field is not exactly level but the States are getting there. High quality inspector training is also a factor in leveling the playing field.


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