Out Of Control Agency

Saturday, September 2, 2017

I own a small inflatable rental company and January of this year while out of town I was contacted by Mike Hardy of the Amusement device division informing me the state now considered inflatables as meeting the definition of an amusement device and that he was hired to level the playing field.

He told me I was not in compliance with the following TN Code 68-121-101 (3) (A)  “Amusement Device” means: Any mechanical or structural device that carries or conveys a person, or that permits a person to walk along, around or over a fixed or restricted route or course or within a defined area, including the entrances and exits to the device, for the purpose of giving persons amusement, pleasure, thrills or excitement.

I initially told him the code did not apply to inflatables and I would not comply but before hanging up I told him I would take a look at it when I returned home. After looking at it I emailed him two questions. Was an inflatable a mechanical or structural device and if the state defined these two terms. After consulting Kevin Klutts, Carlene T. Bennett and Kim J. Jefferson he simply restated his position in an email: “Inflatables devices fall under the definition of Amusement devices (Yes, I know, he told me that on the phone.I wanted clarification). Extensive research by the unit, consultation with other government agencies, and discussions with the department’s attorney are consistent with the programs interpretation. Unless we are instructed to change our current policy, we must proceed accordingly.” (Even though we can't determine what type of device it is we have made our decision to continue to enforce our interpretation) 

The agency charged with enforcing this section of the code did not and could not answer the core question that needed to be answered to determine if inflatables met the definition of an amusement device. Finally three week after asking my question to Mr. Hardy Kim Jefferson told me in an email the state considered inflatables a structural device. 

First of all, if you are in the private sector would your boss give you three weeks to answer a clients simple question that you should have known before you made the call? Even after extensive research, meeting with the department’s attorneys and other governmental agencies they still couldn’t say whether an inflatable was a mechanical or structural device. Then why was this agency making phone calls? So naturally I requested all the information related to this review and extensive research thru a FOIA request, which I have not received as of today.

At this point from what I can tell from the non-compliant list on their website they had been calling inflatable business owners since May 2015 citing and enforcing the above code. So, they had at least 18 months before calling me to fully understand what they were trying to enforce and yet they did not have a clue. 

The state did respond to my previous FOIA request concerning complaints and injuries with inflatables from 2015 to April 2017. There have been no reported complaints or injuries to the state related to inflatables in this time period. There were a total of 22 injuries reported during this time most at trampoline parks and the others at amusement parks. Out of the 22 one was operator error and one was mechanical all the others could be contributed to the user.

There is one type of complaint the state is receiving. According to some of the companies I have talked to inflatable companies who have complied are reporting other companies who are not in compliance and you can't blame them but it does sound a little like Cuba. 

I do want to point out two separate pieces of legislation to include and exclude inflatables in the code has failed to pass. 

I point all this out to show how easy it is for any government agency to expand their scope and reach without any legislation.  All they have to do is take current code, ignore the intent of the code, reinterpret the code, get a verbal okay from the state attorney general or others and then its David(individual) vs.Goliath (state).

Just for the record since I did not want to go to jail or be fined I did reluctantly comply. Others chose to shut down their business. Some companies will believe this to be a great idea (I haven't talked to any that do and I have talked to a number) partly because they recognize the state has constructed a barrier to entry that some will not want to cross and it will drive some out as we have already seen.

Some will say this is for the safety of the children, not so. Even Mr. Hardy in his initial conversation with me didn’t mention safety only leveling the playing field. The inspection and permitting process adds nothing to the safety of the inflatables as almost all injuries related to any type of device is most likely due to the user as shown by the reports filed with the state.   The cited code the state is enforcing does not apply to inflatables and the state is not experiencing a health and safety issue (which is the reason they most likely use to pass any regulation) with inflatables and has no business regulating them.

Mike Lynn 
Cleveland

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