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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Friday, September 6, 2013

In Favor Of Federal Amusement Oversight? Why Pennsylvania Proves It Won't Work

In the weeks following the tragic death of Rosy Esparza on the Texas Giant at Six Flags Over Texas, there has been a great deal of debate and scrutiny of amusement regulation, or lack thereof, at the state and federal level in United States.  One state, though, has emerged as the poster-child for "what's wrong with amusement regulation" in this country - Pennsylvania.  Research conducted by Pittsburgh-based PublicSource has revealed holes and systemic weaknesses in Pennsylvania's amusement industry oversight - holes and systemic weaknesses that should be fixed.  But beyond the obvious issues raised by the PublicSource investigation, I think the experience in Pennsylvania must be viewed as a microcosm for the problems that would certainly be encountered if federal oversight of the amusement industry were to become a reality.

So what is going on in Pennsylvania?  On paper, Pennsylvania appears to have a robust amusement oversight program.
  • Pennsylvania grants broad authority to the Pennsylvania Department of Agriculture to set safety standards for the operation of amusement rides, issue notices for violations of the standards set, establish record keeping and reporting procedures for amusement ride operators, issue subpoenas for documents and testimony in an amusement ride investigation, and to generally adopt whatever rules and regulations are necessary to oversee the operation of amusement rides in Pennsylvania. 
  • Pennsylvania has a legislatively created Amusement Ride Safety Advisory Board to advise and consult on state amusement regulation, consisting of ten Governor-appointed members representing carnival owners, fixed park operators, county fairs, safety officials, and the general public. 
  • Pennsylvania requires all amusement rides to be inspected by a state-certified qualified inspector on a monthly basis or, for travelling shows, at each new location the ride is set up.  Amusement operators must file affidavits with the State after each inspection to document that the inspections have been done. 
  • State officials are authorized to shut down rides for safety issues and to keep them shut down until the ride is certified safe by a qualified inspector and the operator's insurer. 
  • The law also requires amusement operators to report serious injuries or deaths to the state and the ride manufacturer within 48 hours of the accident, and to retain three years of up-to-date maintenance and inspection records for each ride operated. 
  • Violations of the Pennsylvania Ride Inspection Act can result in civil and criminal penalties, including jail time.
So what's the problem?  On paper, this is exactly the kind of stringent regulation that proponents of greater amusement industry oversight would seem to want.  The problem lies in the fist two words of the previous sentence:  "on paper."  According to the research done by PublicSource:

State records show that more than half of Pennsylvania’s permanent parks and water parks did not turn in all of their 2012 reports -- affidavits in which certified inspectors attest that they’ve performed the inspections required by law. The agency had no reports at all for 12 of the state’s 117 permanent parks and water parks PublicSource analyzed.

 Pennsylvania seems to be a case where the rules don't necessarily match the reality.  The legislature has set up an aggressive program for amusement oversight, but any rule is only as good as its enforcement.  And that appears to be the problem in Pennsylvania.  According to PublicSource, the Pennsylvania Department of Agriculture's "enforcement actions are scant. Even parks that have repeatedly failed to turn in safety inspection reports seldom pay fines, and rides are rarely shut down."

Now, some of you may be wondering why I, of all people, am highlighting an obvious example of the shortcomings of state-run oversight.  After all, I have not been silent in the past in my opposition to federal oversight of the amusement industry and have advocated for the efficacy of state-run regulation.  Doesn't Pennsylvania's example undermine exactly what I have previously espoused?  I don't think so.  I've said it before:  I'm not against amusement industry regulation.  I am against amusement industry regulation that won't work.  And  I actually think the experience in Pennsylvania proves my point precisely.

The problems in Pennsylvania show exactly what can, and will, happen when the realities of government budgets and public policy priorities meet the well-intentioned efforts of legislators who only bear responsibility for creating programs to appease their constituency, but who have no responsibility for actually running them on a daily basis.  What do I mean?  Well, for starters, it appears clear that the problems with Pennsylvania's oversight do not result from regulatory apathy, but from the budgetary limitations of the agency charged with the task of oversight.   According to the Pennsylvania Budget and Policy Center, a nonpartisan, statewide policy research project that provides independent analysis of state tax, budget, and related policy matters, "2012 mark[ed] the fifth straight year of cuts to state services."  The PBPC states that, as a result of these state-level budget cuts, Pennsylvania's "children are being taught in more crowded classrooms, college students are paying higher tuition, and women and children are being denied healthcare."

These cuts have undoubtedly impacted Pennsylvania's ride safety program as well.  According to PublicSource, in 2009 there were seven state certified ride inspectors in Pennsylvania.  In 2012, that number had been reduced to four.  Put another way, whereas in 2009, an inspector in Pennsylvania had responsibility for approximately 115 amusement ride operators, today the four remaining inspectors have responsibility for approximately 200 operators each.   At that level of staffing, Pennsylvania simply can't keep up with what the regulations demand.

And therein lies the inevitable problem with federal oversight.  Put aside for the moment my fervent belief that a federal regulatory system is ill-advised given the particularly local nature of the amusement industry.  Forget for a minute that I just think it patently unfair that citizens of states with little or no amusement ride presence should have to foot the bill to support oversight of amusements in other states.  Let's concentrate on the realities of the federal government for a minute.  The financial woes of the United States dominate virtually every conversation in Washington these days.  Budget cuts at the federal level have:

These, and others just like them, are serious problems in need of real solutions.  Unfortunately, underlying them all is money.  There just isn't enough to accomplish everything we would like to accomplish as a nation.  Now, ask yourself, how would a federal amusment ride regulatory program fit into a federal budget that is already full of underfunded programs - most of which carry far more social gravitas than the amusement industry.  Are we really to believe that the federal government will invest the money necessary to inspect the tilt-a-whirl set up by a travelling show every week or two when it can't afford to spend money keeping cancer patients alive?  Would anyone really want it to?  Given the choice between air-traffic control improvements or federalized inspections of roller coasters, is there anyone (aside, perhaps, from Senator Ed Markey) who would choose roller coasters?

It's one thing for legislators, like Senator Markey, to speak out in the media about the need for federal oversight or to propose legislation that might implement it.  It is another thing entirely to have a workable program.  Pennsylvania is proof that even the best programs can fall short if they are not given the funding and policy support necessary to implement them.  Given the state of our country today, I see no reason to believe that a federal oversight program, shoehorned into a federal budget overflowing with important and woefully underfunded programs, would be any different.

1 comment:

  1. The Public Source "investigation" is flawed in the fact that they have no understanding of how the parks operate daily/seasonally. they have only "Gleaned" a database looking for inconsistencies they can parade before a rabid news machine.
    I too have an extensive Amusement Industry resume, and work professionally in the state of Pennsylvania.
    One simple explanation for parks missing "some" reports is seasonal fluctuations in equipment operating. If a Park only operates part of their equipment for post season events (Halloween) they will only submit reports for equipment operating at that time. A park could appear to have not inspected 1/2 their equipment during that time period
    Another situation that occurs is a ride that has experienced a malfunction that requires parts from Europe may be idle in excess of 30 days and can not be inspected due to it's non operational status. If it can not operate it can not be inspected.
    There is no provision in the Pennsylvania system to denote these 2 conditions.
    The Public Source Investigation also does not allow for these conditions. Some Pennsylvania ride operators have had their reputations damaged by this careless sensationalism.


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