House committee substitute makes the following changes to the 1st edition.
Amends proposed GS 95-112.3 to add the term regulated device and defines the term to mean a zip line, aerial park, canopy tour, challenge course, or other similar device subject to the provisions of new Article 14C as set forth in GS 95-112.2. Makes conforming changes to refer to "regulated device" instead of a "device" throughout the Article. Amends the definitions for annual gross volume, owner, person, and third-party inspector.
Amends the powers granted to the Commissioner of Labor in proposed GS 95-112.4 to clarify that the Commissioner is empowered to supervise the Chief of the Elevator and Amusement Device Bureau in the exercise of powers, duties, and responsibilities delegated pursuant to subdivision (1) of the statute. Makes a technical change.
Amends the documentation required of an initial application to be designated as a qualified inspector under proposed GS 95-112.8 to include documentation of the existence of a commercial liability insurance policy in compliance with GS 95-112.15 (previously specified the policy was to cover claims for personal injury, death, and property damages arising from the operation of a device subject to the provisions of the Article in amounts not less than those specified in GS 95-112.12). Requires a signed certification of compliance with the record-keeping requirements of the Article (previously, with the record-keeping requirements of GS 95-112.9). Makes technical and clarifying changes.
Amends GS 95-112.9 (pre-opening inspection and test, training, emergency evacuation plan, records, revocation of certificate of operation) to provide that the owner of a regulated device subject to the provisions of the Article must meet the specified requirements of the statute (previously allowed for the owner's authorized agent to meet the requirements). Makes the same change to subsection (d) of proposed GS 95-112.13 (Accidents, shut down, reporting) to require the owner of a regulated device subject to the provisions of the Article to satisfy the specified notification requirements (previously allowed for the owner's agent to meet the notification requirements), and to subsections (b) and (c) of proposed GS 95-112.15 (Liability insurance) requiring the owner of a regulated device subject to the Article to provide proof of the required contract of insurance (previously allowed for the owner's agent to provide proof of insurance). These changes conform to the definition of the term owner, which includes an owner's authorized agent. Makes a conforming change.
Makes technical change to reference GS 95-112.12 (Operation of unsafe device) instead of GS 95-291, and GS 95-112.14(b) (Operator impairment) instead of GS 95-293(b) in proposed GS 95-112.16 (Violations, civil penalties, appeal, criminal penalties).
Bill H 196 (2017-2018)Summary date: Mar 22 2017 - More information
Bill H 196 (2017-2018)Summary date: Feb 23 2017 - More information
Enacts new Article 14C to GS Chapter 95 and states the Article is to be known as the Zip Line and Challenge Course Safety Act of North Carolina (Act). Sets out the legislative findings and intent.
Establishes that the Act's scope governs the design, construction, installation, plans review, testing, inspection, certification, operation, use, maintenance, alteration, relocation, and investigation of accidents involving zip lines, aerial adventure parks, canopy tours, challenge courses, or other similar devices, as those terms are defined the Act's definitions statute, GS 95-112.3. Provides that the Act does not apply to any zip line, aerial adventure park, canopy tour, challenge course, or other similar devices installed at a private residence or one operated by a government entity solely for law enforcement or military training purposes.
Lists 18 powers and duties of the Commissioner of Labor (Commissioner), including the power to delegate powers, duties, and responsibilities of the Commissioner to, and to supervise, the Chief of the Elevator and Amusement Device Bureau (Bureau); the power to adopt, modify, revoke and enforce rules necessary to carry out the Act's provisions; the power to require inspection and testing of new, modified, or relocated devices subject to the Act; the power to obtain an Administrative and Inspection Warrant pursuant to Article 4A of GS Chapter 15; and the power to institute civil proceedings in courts of the state when a provision of the Act or the rules promulgated under the Act have been violated. Also grants the authority to charge reasonable fees for (1) the issuance of certificates of operation for devices subject to this Act, (2) the inspection by the Bureau of devices subject to this Act, and (3) a qualified inspector designation.
Incorporates specified standards by reference that the design, manufacture, installation, operation, and maintenance of all devices subject to the Act must conform to, unless otherwise specifically provided in the Act or rules promulgated pursuant to the Act.
Requires an owner of a device subject to the provisions of the Act to annually submit an application for a certificate of operation to the Commissioner, on forms provided by the Commissioner, and to request a certificate of operation for each device at least 30 days before the first intended date of use each year. The Act defines an owner as any person or authorized agent of such person who owns a device subject to the provisions of the Act or in the event such device is leased, the lessee, and establishes that term also includes the state or any political subdivision thereof or any unit of local government. Requires an owner of a device subject to the Act to include in the initial application a certification from a professional engineer licensed in North Carolina indicating that the design and installation of the device has been approved by the professional engineer, and to include in any subsequent application certification from a professional engineer licensed in North Carolina indicating that any additions or alterations which substantially change the device have been approved by the professional engineer. Also requires an owner of a device to include in the initial and annual application information as specified in GS 95-112.6(f), including documentation of general liability insurance. Requires the owner of a device to include the certificate of operation fee with the certificate of application. Provides that a certificate of operation for a device expires one year after the date of issuance.
Requires that a third-party, qualified inspector as set out in GS 95-112.8 inspect a device subject to the provisions of the Act and determine that it is in compliance with the provisions of the Act and any rules promulgated pursuant to the Act before a certificate of operation may be issued. Requires the operator of the device to post a copy of the certificate of operation in close proximity to the entry to the device where it is readily visible to participants. The Act defines an operator as any person, partnership, corporation, or other commercial entity and its agents, officers, employees, or representatives who have operational responsibility for any device subject to the provisions of the Act. Sets out qualifications for qualified inspectors.
Requires an owner of a device subject to the Act, or the owner's authorized agent, to (1) make a pre-opening inspection and test of the device, prior to admitting the participants, each day the device is intended to be used and in accordance with challenge course standards; (2) train employees on the operation of the device in accordance with Part 1.3 of the ANSI/PRCA 2014 Ropes Challenge Course Installation, Operation & Training Standard, or a substantially similar standard; (3) have an emergency evacuation plan for the device in accordance with challenge course standards; and (4) maintain for at least the previous 12 months a signed record of the required pre-opening inspection and test, training provided to employees, emergency evacuation plan, and other pertinent information as the Commissioner may require by rule or regulation. Authorizes the Commissioner to refuse to issue or renew or to revoke, suspend, or amend the certificate of operation for any device regulated by the Act upon failure by the owner or the owner's authorized agent to make the required pre-opening inspection and test, to train employees, to maintain an emergency evacuation plan, or to maintain the required records.
Allows the Commissioner to immediately order in writing that the use of a device be stopped or limited if the Commissioner determines that a device subject to the Act and the operation of the device is exposing the public to an unsafe condition likely to result in serious personal injury or property damage, until such time the Commissioner determines that the device has been made safe for use by the public. Also allows the Commissioner to refuse to issue or renew or revoke, suspend, or amend a certificate of operation if the Commissioner determines that the provisions of the Act or the rules and regulations promulgated under the Act have not been complied with. Provides that any action taken by the Commissioner under this statute, GS 95-112.10, is final unless a petition for a contested case is filed under GS Chapter 150B.
Requires an owner or operator to immediately shut down the operation of the device and secure the safety of other participants and the general public, and ensure the scene is left intact from the time of the accident, in the event a participant or member of the general public is involved in an accident related to the operation of a device subject to the Act that results in serious injury or a fatality. Requires the owner, operator, and any employees who witnessed the accident or operated the device when the accident occurred to be available to be interviewed by the Commissioner or the Commissioner's designated representative. Requires other reporting, documentation, and action as specified in GS 95-12.13. Provides that the Commissioner may permanently revoke the certificate of operation if an owner violates any provisions of the Article.
Requires any operator, as defined by the Act, to be at least 18 years of age. Requires an operator to be in attendance at all times the device is in operation. Bars operation of a device subject to the Act while under the influence of alcohol or any other impairing substance defined by GS 20-4.01(14a). Establishes that it is a violation to knowingly permit the operation of any device subject to the Act while the operator is under the influence of an impairing substance.
Requires an owner to obtain coverage of at least $1 million per occurrence against liability for injury to persons or property arising out of the operation or use of a device subject to the Act, and to provide proof of the required insurance before the Commissioner can issue a certificate of operation. Provides that the Commissioner cannot accept any commercial general liability insurance policy unless it obligates the insurer to give written notice to the Commissioner at least 15 days before any proposed cancellation, suspension, or renewal of the policy.
Bars any person from operating or permitting to be operated or using any device subject to the Act without a valid certificate of operations or otherwise than in accordance with the Act and the rules and regulations promulgated under the Act. Establishes that any person who violates the prohibitions of GS 95-112.11(a) or (b) is subject to a civil penalty not to exceed $1,250 for each rule or regulation violated and for each day each device is so operated or used.
Bars any person from operating or permitting to be operated or using any device subject to the Act after the Commissioner has refused to issue or has revoked the certificate of operation for such a device. Bars any person from operating, permitting to be operated, or using any device subject to the Act if the person knows or reasonably should know that the operation or use will expose the public to an unsafe condition likely to result in personal injury or property damage. Establishes that any person who violates GS 95-122.11(c) (operation of a device after the Commissioner has refused to issue or revoked certificate of operation), GS 95-112.13 (accidents, shut down, reporting), GS 95-112.14(a) (operators; age requirements), or GS 95-112.15 (requirement of liability insurance) is subject to a civil penalty not to exceed $2,500 for each day each device is so operated or used. Establishes that any person who violates GS 95-291 (appears to mean GS 95-112.12, Operation of unsafe device) or GS 95-293(b) (appears to mean GS 95-112.14(b) (operation of device under the influence or knowingly permitting operation under the influence) is subject to a civil penalty not to exceed $5,000 for each day each device is so operated or used. Provides factors the Commissioner is to consider in determining the amount of any penalty ordered. Establishes that the determination of the amount of the penalty by the Commissioner is final; however, provides an avenue of appeal. Provides that the Commissioner may file in the office of the clerk of the superior court of the county wherein the person, against whom a civil penalty has been ordered, resides, or if a corporation is involved, in the county wherein the corporation maintains its principal place of business or in the county wherein the violation occurred, a certified copy of a final order of the Commissioner unappealed from, or of a final order of the Commissioner affirmed upon appeal where the clerk of court must enter judgment, notify the parties, and the judgment is to have the same effect as if it had been rendered in a suit duly heard and determined by the superior court.
Establishes that any person who willfully violates any provision of the Act is guilty of a Class 2 misdemeanor, which may include a fine of no more than $10,000, except that if the conviction is for a violation committed after a first conviction of the person, the person will be be guilty of a Class 1 misdemeanor, which may include a fine of no more than $20,000. Establishes that any person who willfully violates any provision of the Act, and that violation causes the serious injury or death of any person, then the person is guilty of a Class E felony, which will include a fine. Provides that nothing in this statute, GS 95-112.16, prevents any prosecuting officer of the State of North Carolina from proceeding against a person who violates the Act on a prosecution charging any degree of willful or culpable homicide.
Allows the owner or operator of a device subject to the Act to deny any person entrance to any device if he or she believes the entry may jeopardize the safety of the person desiring entry, riders, or other persons.
Directs that it is the duty of the Attorney General of North Carolina, when requested, to represent the Department of Labor in actions or proceedings in connection with the Act or the rules and regulations promulgated under the Act.
Authorizes the state, upon recommendation of the Commissioner of Labor, to enter into agreements or arrangements with appropriate federal agencies for the purpose of administering the enforcement of federal statutes, rules, and regulations governing devices subject to the provisions of the Act, consistent with the requirements and conditions provided in the Act and the rules promulgated under the Act.
Provides that all information reported to or otherwise obtained by the Commissioner or the Commissioner's agents or representatives in connection with any inspection or proceeding under the Act or the rules and regulations promulgated under the Act that contains or might reveal a trade secret is to be considered confidential, except as to carrying out the Act and the rules promulgated under the Act or when it is relevant in any proceeding under the same. Provides that in any proceeding the Commissioner or the Court must issue orders as may be appropriate to protect the confidentiality of trade secrets.
Provides that the Act is to be construed liberally to the end of that the welfare of the people may be protected. Contains a severability clause.
The above provisions are effective December 1, 2017.
Allows the Department of Labor to adopt rules, including temporary rules; design and distribute forms; begin accepting applications; and establish and collect fees so that a device subject to the act that is existing on or before December 1, 2017, is in compliance with the provisions of this act and has received a certification of operation from the Department of Labor by that date.
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