Bill Summary for H 380 (2019-2020)

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Summary date: 

Mar 19 2019

Bill Information:

View NCGA Bill Details2019-2020 Session
House Bill 380 (Public) Filed Tuesday, March 19, 2019
Intro. by Davis, Howard, Setzer, Lucas.

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Bill summary

Enacts new Article 14C to GS Chapter 95 and states the Article is to be known as the Aerial Adventure Course Safety Act of North Carolina (Act). Sets out the legislative findings and intent.

Establishes that the Act's scope is to govern the design, construction, installation, plans review, testing, inspection, certification, operation, use, maintenance, alteration, and relocation of aerial adventure courses in the State. Provides that the Act does not apply to any aerial adventure course installed at a private residence or one operated by a government entity solely for law enforcement, fire and rescue, or military training purposes. Sets out 19 defined terms. Defines aerial adventure course (course) to mean a facility or facilities patronized by either public, member, or private patrons, including rope courses, adventure courses, adventure parks, zip lines, zip line tours, canopy tours, and high challenge courses, consisting of one or more elevated walkways, platforms, zip lines, nets, ropes, or other elements the require that use of fall hazard safety equipment, provided that specified criteria for multiple courses at an operator location are met; excludes low rope courses and climbing walls from the term. 

Lists 9 powers and duties of the Commissioner of Labor (Commissioner), including the power to delegate powers, duties, and responsibilities of the Commissioner to 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 regulated devices, including annual inspection at minimum; 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 the issuance of permits for operation for regulated devices.

Incorporates specified standards by reference that the design, manufacture, installation, operation, and maintenance of all regulated devices must conform to, unless otherwise specifically provided in the Act or rules promulgated pursuant to the Act.

Requires all commercial and noncommercial operators of courses to register with the Commissioner, subject to an annual fee. Prohibits opening a course to the public and operating a course until the operator has registered and obtained a permit for operation from the State. Requires annual application for registration at least 30 days prior to the expiration of the current permit. Requires the Commissioner to prescribe the applications form; sets forth registration requirements. Requires the Commissioner to review, approve, and register the course and issue an operation permit upon determining the Article's provisions have been met. Specifies that application does not guarantee registration and that an owner or operator must obtain an operation permit before opening any regulated device to the public. Requires the operator to post a copy of the permit in close proximity to the entry to the regulated device.

Requires inspection of all aerial adventure physical elements, pursuant to applicable challenge course standards as often as circumstances require but no less than once every 12 months. Requires an annual inspection report to provide verification of the completion of all necessary corrective measures and be submitted to the Commissioner for approval.

Requires an owner of a regulated device to (1) conduct 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 challenge course standards; (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 permit for operation for any regulated device 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.

Prohibits persons from operating or permitting to operate or using any regulated device without a valid permit to operate, otherwise than in accordance with the Article and the rules and regulations adopted thereunder, or after the Commissioner has refused to issue the permit to operate. Establishes that any person who violates the prohibitions 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.

Establishes reporting requirements, requiring the owner of any regulated device to notify the Commissioner within 24 hours of: (1) any occurrence resulting in death or injury requiring medical treatment by a physician, other than first aid, as described, or (2) any occurrence resulting in damage to the regulated device indicating a substantial defect in design, mechanics, structure, or equipment affecting the future safe operation of the device, excluding normal wear and tear. Further requires owners or operators to keep a record of every accident or fatality with the permit to operate, as specified, and make the records readily accessible to the general public. 

Requires any operator of a regulated device, 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 regulated device 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 and $2 million in the aggregate against liability for injury to persons or property arising out of the operation of the facility or use of a device, and to provide proof of the required insurance to the Commissioner upon request. Requires the Commissioner to prevent or stop operation of a regulated device until the person provides proof of the required insurance. Prohibits the insurance contract from including per person sublimits to liability. Requires the insured to immediately notify the Commissioner upon receipt of notice of cancellation, suspension, or nonrenewal of the policy. Provides that the Commissioner cannot accept any commercial general liability insurance policy unless it obligates the insurer to give written notice to the person at least 30 days before any proposed cancellation, suspension, or nonrenewal of the policy.

Establishes that any person who violates the provisions regarding accidents and reporting, operator age  requirements, and 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 the provisions regarding operator impairment 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. Applies to violations occurring on or after July 1, 2020.

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.

Exempts from the provisions of the Article a regulated device installed at a private residence that is not open to the public and for which no fee is charged, or a regulated device owned or operated by the State or a political subdivision which is not subject to the liability insurance requirements of GS 95-112.12.

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.

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 that the welfare of the people may be protected.  Contains a severability clause.

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, 2019, is in compliance with the provisions of this act and has received a certification of operation from the Department of Labor by that date.

The above provisions are effective July 1, 2020.

Repeals Article 47 (Zip Line and Challenge Course Financial Responsibility), GS Chapter 66.