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Weak SD carnival safety laws written largely by industry and lawmaker who owns amusement parks

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South Dakota laws that are supposed to make amusement rides safer do little more than make operators safer from lawsuits, a Journal review has found.

Most of the laws on the books resulted from 2014 legislation that started as a safety crusade but was overtaken by a lawmaker who owns amusement parks — state Rep. Al Novstrup, R-Aberdeen — and by his industry colleagues.

Those and other findings — including flimsy inspection rules and virtually no state oversight of paperwork — are the result of a Journal review of the state’s amusement-ride laws that came after a summer rife with accidents around the nation, including the Aug. 7 decapitation of a 10-year-old boy on a water slide in Kansas and a recent ride problem at a fair on the Rosebud Indian Reservation.

South Dakota’s 2014 legislation was motivated by an accident the previous summer in Sisseton, S.D., where two girls were stuck upside down for more than an hour on a carnival ride.

After the incident, it came to light there were no laws requiring inspections of carnival rides in South Dakota; the state only required carnival operators to have insurance. At the time, South Dakota was one of an estimated 15 states without any inspection requirements.

Then-Rep. Steve Hickey, R-Sioux Falls, took up the cause and got a bill drafted to require inspections. That attracted the attention of Novstrup, who is a stockholder in three of the four Thunder Road parks in the Dakotas.

‘Novstrup’s bill’

Novstrup distinguishes his small parks from larger amusement parks by referring to them as “family entertainment centers.” They mainly feature go-karts and other attractions such as arcades, mini-golf, batting cages, bumper boats and bungee trampolines.

But the Sioux Falls Thunder Road facility, in which Novstrup has ownership, includes a tilt-a-whirl and a roller-coaster, rides more commonly associated with carnivals. Novstrup has acknowledged his hope of growing the facility into a larger amusement park.

So, when Novstrup learned of Hickey's draft legislation to regulate amusement rides, Novstrup was immediately concerned.

“I very quickly heard about this and got a copy emailed to me and saw some things in it that were over-regulation,” Novstrup said in March 2014 during recorded public remarks in the state Senate chamber. “And so I contacted the good representative and said, ‘Can we compromise on this? Can we work toward an equitable solution for everybody?’ And he was very willing to do that.”

To help shape and draft the legislation, Novstrup brought in representatives of two amusement industry organizations, the Outdoor Amusement Business Association and the International Association of Amusement Parks and Attractions. Novstrup’s son, David, who is also a state lawmaker, and is the general manager and co-owner of the Thunder Road park in Aberdeen, said he additionally contributed to the drafting of the bill.

What emerged was a piece of legislation with three main parts:

  • A requirement for annual inspections of rides by certified amusement-ride inspectors;
  • A requirement for daily inspections of rides by inspectors, carnival operators or their employees; and
  • A list of rider responsibilities in a section titled "Rider Obedience."

Novstrup called the bill a “three-legged stool.” Sen. Scott Parsley, D-Madison, thought the stool was crooked, owing to the longer length of the rider-obedience portion. That section included 557 words of new regulations on riders, while the bill’s other seven sections contained a combined 374 words of new regulations on operators.

The rider-obedience section exhaustively explains 10 things that riders should not do, and the section ends with language explaining that any violation of the rules by riders “may be used as evidence of contributory negligence in any civil case asserting amusement ride or operator liability.” In other words, the law spells out things that can be used against riders in court if they sue a carnival or amusement-park company.

"That does remove some of our liability," Novstrup acknowledged during one of the bill's legislative hearings.

Parsley wondered why a bill that was supposedly intended to make rides safer for riders included such heavy-handed language about the riders themselves.

“By my plain reading,” Parsley said during the same legislative hearing, “it looks like all the burden is on the rider rather than the operator.”

Yet Parsley voted for the bill, because he felt it was at least better than the status quo. He offered no amendments, and he said recently to the Journal that Novstrup had so much support that any effort to significantly change the bill would have been futile.

“Even though Representative Hickey was the House sponsor, it was Senator Novstrup’s bill,” Parsley said.

The bill sailed through the Legislature on a 64-6 vote in the House and a 34-1 vote in the Senate. Some of the “no” votes were from lawmakers who opposed placing any regulations at all on the amusement-ride industry.

At no time during the legislation’s multiple public hearings did anyone explicitly question the wisdom of allowing amusement-ride safety laws to be influenced primarily by a legislator who owns amusement parks, or by his industry colleagues. In fact, wholehearted support from the amusement industry was repeatedly cited as evidence that the bill was well-conceived.

In a recent interview with the Journal, Novstrup denied steering the legislation toward his own benefit.

“Obviously, there are 105 legislators, and everybody has a chance to amend the bill,” he said. “If you look at before the bill was passed and after, I’m under more regulation after the bill passed than before the bill passed.”

Rides at parks exempted

Novstrup’s statement is technically true. He is under slightly more regulation now than before. But thanks to an exemption for permanent amusement parks in the laws he helped write, he is shielded from stricter regulations imposed on traveling carnivals.

The exemption is contained in the law’s definition of an “amusement ride.”

The definition exempts slides, playground equipment and coin-operated devices, plus “conveyances which operate directly on the ground or on the surface or pavement directly on the ground” (such as go-karts). It also exempts amusement devices of a permanent nature “which are not moved from one location to another more than one time per year or which are insured to operate in only one fixed location.”

Novstrup’s Sioux Falls park has a tilt-a-whirl and a roller coaster. Because the rides stay at the park and are not moved around as part of a traveling carnival, they do not meet the definition of amusement rides under South Dakota law and are therefore exempted from inspection requirements. Meanwhile, a tilt-a-whirl or roller coaster that is brought to Sioux Falls as part of the Sioux Empire Fair, or to the Central States Fair in Rapid City, would be considered an amusement ride and would be subject to inspection requirements.

Novstrup, in a recent interview with the Journal, defended the exemption for his rides.

“I put them together once,” he said. “I don’t take them apart three times a week and put them back together again, so the risk is a lot lower.”

Some traveling carnival operators express an opposite opinion. Their rides receive much closer scrutiny when the rides are assembled and disassembled, they say, and they cite that as a reason their rides are safer.

Ken Martin, a Virginia-based certified amusement-ride inspector and national safety analyst and consultant, said that neither perspective is correct and that both miss the point.

Martin said “an amusement ride is an amusement ride,” and he called South Dakota’s inspection exemption for amusement parks “stupid.”

“If you’ve got the same ride in a carnival and at an amusement park, why exempt either one?” Martin said. “There’s no logic in it and no reason for it. It’s purely somebody’s palm being greased.”

He also called the lengthy rider-obedience section of South Dakota’s laws “ridiculous.”

“A rider has a responsibility to follow the rules, period,” Martin said. “That’s all that needs to be said. And it’s up to the owner to publish those rules.”

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Fair-goers fly in the air on a swing ride at the Central States Fair in August. South Dakota's carnival safety rules were written mainly by industry insiders and a lawmaker who owns amusement parks. Now, the state's Bureau of Administration has submitted House Bill 107, which if approved by lawmakers this session means the state will have no oversight of rides like this one.

Laws without teeth

The 2014 legislation had some other weaknesses.

Testimony from Novstrup and one of his industry colleagues revealed that the annual and daily inspections required in the bill were nothing more than what carnival operators were already doing to satisfy their own insurance requirements, and to satisfy the laws of other states where the carnivals operate.

The bill did not require annual inspections to be conducted in South Dakota; instead, the bill allowed inspections to be conducted in any other state, regardless of how strict or lax that state's inspection standards might be.

“We’re not asking a good operator to do something that is expensive and that doesn’t have a cost benefit,” Novstrup said during a House committee meeting. “We’re asking good operators to keep doing what they’re doing, and we’re asking bad operators to change what they do.”

Yet there was nothing in the bill to ensure that any operators, good or bad, follow the law, since the bill had no enforcement provisions.

For example, the bill said amusement rides may not be operated in the state without an annual inspection and sufficient insurance, but the bill did not say who is responsible for shutting down non-compliant operators or what the penalty should be.

The bill directed amusement-ride operators to file proof of their insurance and annual inspections with a number of offices; namely, “the sponsoring persons, the organization, the state, and the governing board of the local unit of government” where carnival rides are operated. But no specific state office was designated to receive the documents, and no one in state government is proactively collecting them.

After the bill became law, the state Bureau of Administration volunteered to accept the documents when one company asked where to send them. That company, Thomas Carnival Inc., is so far the only one to file anything with the bureau, though there are several additional companies that operate carnivals in South Dakota. A bureau spokeswoman said the office has no authority to take any action against carnival companies that fail to file the required documents, because no such authority was granted in the 2014 legislation.

Some carnival companies are filing the required documents with local entities. The Journal was able to review some of Carnival Americana’s inspection and insurance records recently during the Central States Fair.

But the company has apparently filed nothing with the state, and unless parents take the extraordinary step of contacting both a fair manager and a carnival owner — as the Journal did — before taking their children on carnival rides, there is no convenient way for parents to learn whether rides have met the minimum insurance or inspection requirements in state law. There is no state website, for example, where the documents are posted.

Parsley, when prompted by the Journal, said such a website would be a good idea.

“It’s information that should be available to the public,” he said. “Otherwise, why are we collecting it?”

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081415-nws-fair003.JPG

Workers with Carnival Americana assemble a carnival ride at the Central States Fairgrounds last year. South Dakota has safety rules that are more strict for traveling carnivals, but still put most of the responsibility for safety on the riders.

Expert urges action

Parsley said there were some positive things about the 2014 legislation, which is why he voted for it. The bill introduced at least some inspection standards into state law, and it changed the minimum mandated level of insurance on rides for both parks and carnivals from a flat $1 million to $1 million per occurrence plus $1 million in the aggregate.

At the time of the bill’s passage, though, Parsley expressed reservations about supporting it.

“I think we’re moving in the right direction here,” Parsley said during a legislative hearing. “I just worry that we’re going to put this on and say everything’s fixed now, and I don’t know that we have fixed everything in terms of the responsibility of having good, safe rides.”

Martin, the national safety expert, said the state should do more.

Martin suggested removing the inspection exemption for amusement parks; adding clear authority for some person or office to shut down rides for which there is no proof of inspections or insurance; and requiring independent, on-site inspections when rides are set up. A certified inspector would be best, he said, and might charge $500 to $1,000 per day plus travel costs.

If fair or festival managers can’t find or afford a certified inspector, Martin said, they should at least get someone from their community with a background in engineering, inspecting or some kind of mechanical field to examine the rides.

“You need an independent set of eyes going around and going behind people,” Martin said. “Carnival workers are just like the rest of us when we follow the same daily routine, go the same way to work, go to the same place for coffee — we have a tendency to take those everyday things for granted, and that’s when things can go unnoticed.”

Inspections will never prevent all accidents, Martin added, but they can at least make it more likely that problems will be spotted before it’s too late.

Ultimately, Martin believes the best way to make amusement rides safer is to implement national laws and regulations requiring amusement rides to meet uniform safety standards and inspection requirements. The amusement and carnival industries have resisted that so far.

It falls to states and local governments, then, to regulate the industry, and Martin said lives depend on the choices made by lawmakers.

“We have a very long way to go in every state,” he said. “In some states such as yours, we have an even longer way to go.”

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Contact Seth Tupper at seth.tupper@rapidcityjournal.com

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Enterprise Reporter

Enterprise reporter for the Rapid City Journal and author of "Calvin Coolidge in the Black Hills." Receiving encrypted news tips through Peerio with the user name seth_tupper.