Authorizes the enactment of local laws regarding playground equipment and requires the use of a temperature test on playground equipment installed by municipalities.
BILL NUMBER: S7471B
TITLE OF BILL : An act to amend the general business law, in relation to authorizing the enactment of local laws regarding playground equipment and requiring the use of a temperature test on playground equipment installed by municipalities
PURPOSE OR GENERAL IDEA OF BILL : To require temperature testing of playground equipment, including safety surfaces, constructed, installed, or maintained by any municipality.
SUMMARY OF SPECIFIC PROVISIONS : Amends Section 399-dd of the general business law as added by chapter 519 of the laws of 2006, which is re-lettered as Section 399-ff, to add the following provisions:
- Require the consumer protection board, in consultation with the department of health, to develop a method for temperature testing of playground equipment, and to establish a maximum potential temperature standard for such equipment (including safety surfacing), representing the temperature at which such equipment may pose a risk of burning exposed skin;
- Require any municipality that constructs, installs, or maintains playgrounds or playground equipment to promulgate rules and regulations requiring:
- as part of the design for any new playground equipment, an analysis of the potential for such equipment to exceed the maximum potential temperature set by the consumer protection board;
- as part of such municipality's playground inspection and maintenance procedures, the performance of temperature tests on playground equipment, cities of one million or more to begin such tests by May 1, 2011, and cities of fewer than one million to begin such tests by May 1, 2012; and
- specification of procedures for mitigation of any significant health hazards identified during any inspection;
- Act to take effect on the thirtieth day after it shall have become a law,
JUSTIFICATION : Each year dozens of children are treated in burn centers in New York State due to injuries caused by playground equipment reaching dangerous temperatures. This figure does not include children treated for bums in emergency rooms in local hospitals or by pediatricians. For example, in May of 2007, temperatures on a playground mat reached 167 degrees, causing second degree burns that peeled the skin off the soles of the feet of a two year old in only a few seconds. The child was hospitalized in a bum unit for four days.
In January of 2009, New York City Councilmember Melissa Mark-Viverito introduced Resolution 1782-2009, calling upon the State Legislature to pass legislation requiring temperature testing. A hearing on the Councilmember's resolution further revealed that this problem was well documented. The City's Department of Parks and Recreation testified in February, 2009 that it was installing more canopies and coverings to shade playground equipment from the sun, introducing more water features to promote cooling, and that it had ceased using crumb rubber fields due to extreme heating concerns. However, the City also testified that it generally relied on "common sense" and some 200 signs warning against going barefoot in playgrounds.
This is an insufficient response. Not only does footwear cover a fraction of a child's body (leaving open the question of how a parent is to protect a child's legs, hands, or other exposed skin), but the reliance on signage places an undue burden on the public to protect their children from materials or equipment that are commonly considered safety-enhancing rather than hazardous.
Playgrounds should be safe havens for families, not pit-stops on the way to emergency rooms. Despite the common occurrence of these injuries, neither the Consumer Product Safety Commission nor the American Society of Testing Materials requires heat testing for equipment or materials installed in playgrounds. This legislation would remedy this gap in our regulatory framework.
PRIOR LEGISLATIVE HISTORY : None.
FISCAL IMPLICATIONS : To be determined.
EFFECTIVE DATE : This Act shall take effect on the thirtieth day after it shall have become a law.
STATE OF NEW YORK ________________________________________________________________________ 7471--B IN SENATE April 14, 2010 ___________Introduced by Sen. PERALTA -- read twice and ordered printed, and when printed to be committed to the Committee on Consumer Protection -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the general business law, in relation to authorizing the enactment of local laws regarding playground equipment and requiring the use of a temperature test on playground equipment installed by municipalities THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. This act shall be known and may be cited as the "playground equipment safety act". S 2. Section 399-dd of the general business law, as added by chapter 519 of the laws of 2006, is relettered section 399-ff and amended to read as follows: S 399-ff. Construction or installation of playground or playground equipment. 1. Definitions relative to playground safety. For the purposes of this section
[, the term]: (A) "playground" means an improved area designed, equipped, and set aside for play of six or more children which is not intended for use as an athletic playing field or athletic court, and shall include any play equipment, surfacing, fencing, signs, internal pathways, internal land forms, vegetation, and related structures [.]; AND (B) "MUNICIPALITY" MEANS A CITY, VILLAGE, COUNTY OR TOWN; AND (C) "TEMPERATURE TESTING" MEANS THE MEASUREMENT OF THE TEMPERATURE OF PLAYGROUND EQUIPMENT, MATERIAL OR SURFACE, INCLUDING SAFETY SURFACING, THAT MAY COME INTO CONTACT WITH THE SKIN OF A USER IN THE NORMAL COURSE OF USE OF A PLAYGROUND PURSUANT TO A METHOD DEVELOPED BY THE CONSUMER PROTECTION BOARD, IN CONSULTATION WITH THE DEPARTMENT OF HEALTH. 2. The consumer protection board, in consultation with the office of parks, recreation and historic preservation, shall promulgate rules and regulations for the design, installation, inspection and maintenance of playgrounds and playground equipment. Those regulations shall substan-EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14584-07-0 S. 7471--B 2
tially comply with the guidelines and criteria which are contained in the handbook for public playground safety produced by the United States consumer products safety commission or any successor. The rules and regulations shall include special provisions for playgrounds appropriate for children within the range of ages in day care settings. 3. (a) No person, firm, corporation, or other legal entity which constructs, assembles or installs a playground or playground equipment shall construct, assemble, or install in this state such playground or playground equipment unless such playground or playground equipment shall conform to the requirements of those rules and regulations promul- gated pursuant to this section. (b) Playgrounds or playground equipment constructed upon one, two and three-family residential real property are exempt from the requirements of this section. 4. THE CONSUMER PROTECTION BOARD, IN CONSULTATION WITH THE DEPARTMENT OF HEALTH, SHALL: (A) DEVELOP A METHOD FOR THE TEMPERATURE TESTING OF PLAYGROUND EQUIP- MENT, MATERIALS AND SURFACES, INCLUDING SAFETY SURFACING, AND SHALL PROMULGATE RULES AND REGULATIONS RELATING TO SUCH TESTING. SUCH METHOD SHALL INCORPORATE RELEVANT VARIABLES AND FACTORS, INCLUDING, BUT NOT LIMITED TO, THE AVERAGE AIR TEMPERATURE DURING THE MONTHS OF MAY, JUNE, JULY, AUGUST AND SEPTEMBER, THE AVERAGE AMOUNT AND INTENSITY OF SUNLIGHT THAT MAY AFFECT THE TEMPERATURE OF PLAYGROUND EQUIPMENT, MATERIALS AND SURFACES, INCLUDING SAFETY SURFACING, AND VARIATIONS IN TEMPERATURE AND SUNLIGHT EXPOSURE AT DIFFERENT TIMES OF THE DAY; AND (B) ESTABLISH A MAXIMUM POTENTIAL TEMPERATURE STANDARD FOR PLAYGROUND EQUIPMENT, MATERIALS AND SURFACES, INCLUDING SAFETY SURFACING, THAT SHALL REPRESENT THE TEMPERATURE AT WHICH SUCH EQUIPMENT, MATERIALS AND SURFACES MAY POSE A RISK OF BURNING THE EXPOSED SKIN OF A USER IN THE NORMAL COURSE OF USE OF A PLAYGROUND. 5. ANY MUNICIPALITY THAT CONSTRUCTS, INSTALLS OR MAINTAINS PLAYGROUNDS OR PLAYGROUND EQUIPMENT, SHALL PROMULGATE RULES AND REGULATIONS FOR THE DESIGN, INSTALLATION, INSPECTION AND MAINTENANCE OF PLAYGROUNDS MAIN- TAINED BY SUCH MUNICIPALITY. SUCH RULES AND REGULATIONS SHALL INCLUDE PROVISIONS THAT: (A) REQUIRE, AS PART OF THE DESIGN OF ANY NEW PLAYGROUND, AND PRIOR TO THE INSTALLATION OF ANY NEW PLAYGROUND EQUIPMENT, MATERIALS OR SURFACES, INCLUDING SAFETY SURFACING, THE PERFORMANCE OF AN ANALYSIS OF THE POTEN- TIAL FOR SUCH PLAYGROUND EQUIPMENT, MATERIALS OR SURFACES TO EXCEED THE MAXIMUM POTENTIAL TEMPERATURE STANDARD PROMULGATED BY THE CONSUMER PROTECTION BOARD; (B) REQUIRE, AS PART OF SUCH MUNICIPALITY'S PLAYGROUND INSPECTION AND MAINTENANCE PROCEDURES, THE PERFORMANCE OF TEMPERATURE TESTING FOR EQUIPMENT, MATERIALS AND SURFACES INSTALLED IN PLAYGROUNDS, INCLUDING SAFETY SURFACING. IN CITIES HAVING A POPULATION OF ONE MILLION OR MORE INHABITANTS, THE LOCAL DEPARTMENT OF PARKS AND RECREATION SHALL COMMENCE TEMPERATURE TESTING PURSUANT TO THIS SECTION NO LATER THAN MAY FIRST, TWO THOUSAND ELEVEN PURSUANT TO THE METHOD OF TEMPERATURE TESTING ADOPTED BY THE CONSUMER PROTECTION BOARD. IN A MUNICIPALITY HAVING A POPULATION OF LESS THAN ONE MILLION INHABITANTS, SUCH MUNICIPALITY SHALL COMMENCE TEMPERATURE TESTING PURSUANT TO THIS SECTION NO LATER THAN MAY FIRST, TWO THOUSAND TWELVE PURSUANT TO THE METHOD OF TEMPERATURE TESTING ADOPTED BY THE CONSUMER PROTECTION BOARD; AND (C) SPECIFY PROCEDURES FOR THE MITIGATION OF ANY SIGNIFICANT HEALTH HAZARDS IDENTIFIED DURING ANY INSPECTION, INCLUDING, BUT NOT LIMITED TO, HAZARDS THAT POSE A RISK OF BURNING EXPOSED SKIN BASED ON THE MAXIMUMS. 7471--B 3
POTENTIAL TEMPERATURE STANDARD PROMULGATED BY THE CONSUMER PROTECTION BOARD. 6. Whenever the attorney general shall believe from evidence satisfac- tory to him that any person, firm, corporation or association or agent or employee thereof has violated any provision of this section, he may bring an action in the supreme court of the state of New York for a judgment enjoining the continuance of such violation and for a civil penalty of not more than one thousand dollars for each violation, except that the court may impose a civil penalty of not more than ten thousand dollars if the violation is knowing and willful. If it shall appear to the satisfaction of the court or justice that the defendant has violated any provision of this section, no proof shall be required that any person has been injured thereby nor that the defendant knowingly or intentionally violated such provision. In such action preliminary relief may be granted under article sixty-three of the civil practice law and rules. Before any violation of this section is sought to be enjoined, the attorney general shall be required to give the person against whom such proceeding is contemplated notice by certified mail and an opportu- nity to show in writing within five business days after receipt of notice why proceedings should not be instituted against him, unless the attorney general shall find, in any case in which he seeks preliminary relief, that to give such notice and opportunity is not in the public interest. S 3. This act shall take effect on the thirtieth day after it shall have become a law.