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A climbing wall or a rope’s course are structures. The components already have ASTM standards the sole issue is whether or not they were put together properly.

Operations need special reviews, but the structure is nothing that different from the building it is in or close too.

I’m always asked to recommend a person to check out a ropes course or a climbing wall. These people are looking for someone who may be self-appointed, maybe knowledgeable, (or maybe not) a person who makes a living check these.

I rarely refer them to someone with that title in the industry. I first ask them if a local contractor or engineer as ever looked at their course.

The structures have a different purpose than the carpenter or engineers are used to, but the construction should not be.

We keep forgetting that climbing walls and rope’s courses are just structures no different from a building.  Each of the components has an ASTM standard. An Engineer or contractor can check to see if it was constructed properly and what needs to be done to get it up to speed.

We forget that the foundation of any building or anything attacked to the building is engineering.

By whom and how often should you have your course inspected?

Any time you feel insecure about your course or wall or your insurance company requires it.

Who should inspect your course or wall?

An engineer or contract should inspect your course at least every couple of years or as the engineer or contractor tells you. You can bring in someone with the industry credentials in the other years or with them. You can have someone come in and look at your operation anytime.

I tell my clients to find another operator and trade days. Go check out their course on one day and have them check out your course on another day. That will spot issues you may have, and you probably will learn some new ideas. No use having “inspectors” only who knows new ways of doing things.

I would suspect that if you are part of a larger organization, a college, university or camp that the company or college engineer will tell you when and how often they want the structure inspected.

A bolt is a bolt, whether it holds up a wall or a climbing wall.

What do you think? Leave a comment.

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Copyright 2014 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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By Recreation Law    Rec-law@recreation-law.com      James H. Moss         #Authorrank

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Architects, Engineers and Recreation, we need the first two, to be successful in the second

No, not to tear down the wilderness, I’m talking about what we build.

In the recreation industry, we build a lot of things that our customers use: Ropes courses, zip lines, climbing walls, raft frames, etc. I see a lot of these being built by owners or by contractors who are not the correctly licensed people for the jobs. If you have clients interacting with something, you built; you better have an engineer/architect approve the plans and the construction. You also may need to have the plans approved the structure approved by the appropriate city, county, or state licensing authority.

Additionally, you may be violating city, county or state laws if the work is not approved in advance by an architect or engineer and or built by a “licensed” person/contractor.

This is hard to write because the laws are usually local in nature, so there is no uniform way to look at the issues. In the general, I’ll use the term state to mean any government entity, city, county, municipal, tax district, state or federal agency.

It does not matter what letters or made-up name is behind a person’s name when they tell you they can build your wall/course/building. Each state law requires the person who approves it be licensed by the state to plan and make sure the works is done correctly. The actual builder can be anyone in most cases, although this varies by state law. But somewhere in the process a city, county or state requires the plans be created or approved by a licensed engineer or architect.

You may also have to make sure that the city; county or state code is met and approved as well as fire code.

Why pay the extra money? Because if something goes wrong, only that license can prove you are not intentional injuring people. Here is why.

·        The architect or engineer is going to be local; you can find him to have him or her testify on your behalf. You won’t be calling a number that is not being answered in another state.

·        The license is going to give you the first defense, rather than a liability.

·        If the licensed person did screw up, they have insurance to cover you rather than a general liability policy which has holes the insurance company can use to exit the lawsuit with its money in its pocket.

·        There is probably a law or regulation that requires it. If you violate this law and do not have the plans or construction approved by the appropriate people you are negligent per se. As such, you may not have a defense to the claim, including the release you use.

·        The licensed local person is going to know the laws and regulations you must meet. You should not have a government inspector show up later and close you down.

It might be a problem if you are first climbing wall/gym/ropes course the licensing bureau has ever seen. You may need to bring photographs, videos and other examples to show what you are doing.

You may also have to do the same if you are hiring a licensed contractor to explain to them what you are trying to accomplish.

Either way, in the long run, it is the only legal way to go.

It is better than jail time, by the way. Yes, if you have not correctly licensed your structure, you could be facing zoning issues and violation of other laws, which could result in fines. In this example, the owner of this tree house ended up in court. See Golden takes aim at elaborate treehouseor Fight over Golden tree house set to go to court.

What do you think? Leave a comment.

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Independent Contractor (Sales Representative Laws by State)

STATE

WRITTEN CONTRACT REQUIRED

DAMAGES

TIME TO PAY COMMISSIONS

MISC.

CITATION

Alabama Treble Damages, & Attorney fees 30 days after termination or when commissions become due. Code of Alabama 1975, Sections 8-24-1 through 8-24-5
Arizona K required if requested[1] Damages, Attorney fees & costs 30 days Title 44, Chapter 11, Article 15, Arizona revised statutes.
Arkansas Yes

 

Treble Damages, & Attorney fees 30 days if no K Arkansas Code, Sections 4-70-301 through 4-70-306
California Yes, no exceptions[2] Treble Damages, & Attorney fees Mfg who employs Rep in California can be sued in the California State of California Civil Code Title 1A, Section 1738.10, Part 4, Division 3
Colorado No Treble Damages; the prevailing party shall be entitled to attorney fees & costs in addition to any other recovery Mfg who employs Rep in Colorado can be sued in the Colorado Colorado Revised Statutes Title 12, Section 12-66-101 through 103
Georgia Yes Commissions plus punitive damages up to twice the commissions plus attorney’s fees 14 days unless modified by K The statue prohibits the parties from waiving its requirements, whether by express waiver or by making the contract subject to the laws of another state Official Code of Georgia Annotated, Article 24, Sections 10-1-700 through 10-1-704
Illinois No Treble Damages, & Attorney fees 13 days of termination or 13 days when commissions are earned Illinois Revised Statutes, Chapter 48, paragraphs 2251, 2252 and 2253
Indiana No Treble Damages, & Attorney fees 14 days after payment would have been due under the K For purposes of Indiana Rule 4,4, a Mfg who employs Rep in Indiana can be sued in the Indiana Indiana Code, 1988 Edition, Sections 24-4-7-1 through 24-4-7-6
Iowa No Commissions due plus liquidated damages (5% of commission due x number of days past due) including costs & attorney’s fees 30 days after commissions earned. Upon termination within 30 days after termination Code of Iowa, Vol. 1. 1989, Chapter 91A, Sections 91A.1 through 91A.13
Kansas No Commissions 30 days Kansas Statutes Annotated. 1987 Cumulative Supplement, Chapter 44, Article 3, Sections 44-341
Louisiana No Triple damages plus attorney’s fees & costs If no K all commissions due must be paid no later than the 30 working days after termination Mfg must provide the sales representative with a copy of the contract. The statute expressly prohibits the parties from waiving any of the statute’s requirements. The statute also prohibits any contractual provision which would establish exclusive venue in a state other than the Louisiana Louisiana Revised Statutes (West. 1988), Title 51, R.S. 51:441 through 445
Maine No exemplary damages up to an amount of 3 times the commissions due, plus attorney’s fees & costs 30 days after termination If frivolous action is brought, the sales representative is liable to the Mfg for attorney’s fees and court costs

Mfg who employs Rep in Maine can be sued in Maine

Maryland Exemplary damages not to exceed 3 times the commissions owed plus costs[3] 45 days Annotated Code Maryland, Article 100, Sections 127 through 131
Massachusetts Yes if either party requests one Commission 7 days after termination or expiration of the agreement; or within 14 days for goods shipped after termination or expiration of the agreement Massachusetts General Laws Annotated (West, 1988), Chapter 104, Sections 7 through 9
Michigan No Actual damages plus if found to have intentionally failed to pay, an amount equal to 2 times the commission due, not to exceed $100,000 45 days after termination attorney’s fees & court costs to the prevailing party Michigan compiled laws section 600.2961
Minnesota No Commission amount plus 1/15th of commission for every day of non-payment up to 15 days; plus reasonable attorney’s fees 3 days Minnesota also requires 90 days written notice for termination of Representative Ks made after August 1, 1990.[4] Minnesota Statutes 1988, Chapter 181. Sections 181.13, 181.14 and 181.145. & Minnesota Statutes 1990, Regulation of Trade Practices Section 325E.37
Mississippi No triple the commission due plus reasonable attorney’s fees & costs 21 days 1988 Mississippi General Laws, Chapter 588, Sections 75-87-1, 75-87-3, 75-87-5, and Notes
Missouri No Commission due, an additional amount as if the sales representative were still earning commissions calculated on an annualized pro rata basis from the date of termination to the date of payment, & attorney’s fees & costs 14 days House Bill 219, Section 407.023.
Nebraska No amount equal to the judgment, but if nonpayment of commissions is found to be willful, an amount equal to 2 times the amount of unpaid commissions Nebraska Revised Statutes, Vol. 3b, Section 48-1229 through 48-1232
New Hampshire Yes civil action damages plus exemplary damages, plus attorney’s fees & costs 45 days The statute prohibits the parties from waiving its requirements, whether by express waiver or by a contract subject to the laws of another state State of New Hampshire revised statutes annotated Section 339, E1 through E4
New Jersey No Amount due representative plus attorney’s fees & costs 7 days of termination. All other commissions must be paid within 30 days after payment would have been due if the K had not been terminated If the court finds the sales rep’s action frivolous the Mfg will be awarded attorney’s fees & court costs

The statute prohibits the parties from waiving its requirements, whether by express waiver or by a contract subject to the laws of another state

Laws of New Jersey 1990, Chapter 93, effective 9/7/90[5]
New York Yes 2 times the commission amount; plus attorney’s fees, costs & disbursements 5 days Labor Law Book No. 30, Chapter 451, Sections 191-a, 191-b, and 191-c
North Carolina No civil action all commission due, plus exemplary damages not to exceed all commissions due, plus attorney’s fees & court costs 45 days If the court finds the sales rep’s action frivolous, the rep is liable for attorney’s fees & court costs

provision in any contract between a sales representative and a Mfg purporting to waive any provision of this statute, whether by expressed waiver or by a contract subject to the laws of another state, is void

General statutes of the State of North Carolina Chapter 66, Section 190 through 193
Ohio No Liable in civil action for triple damages plus reasonable attorney’s fees & costs Must be specified in K. Upon termination all commissions due must be paid within 13 days or within 13 days after they become due The statute prohibits the parties from waiving it’s requirements Ohio Revised Code 1988, Section 1335.11
Oklahoma No Commissions due; plus attorney’s fees & costs to the prevailing party 14 days Oklahoma Statutes, Section 677 title 15
Oregon No (1) All amounts due the sales representative under the K plus interest on the amount due at the rate of 9%; & (2) treble damages, if the failure to comply with the provisions of the statute is willful.; The court shall also award court costs & attorney fees incurred by the prevailing party in an action to recover amounts, interest, or damages due. 14 days Mfg who employs Rep in Oregon can be sued in the Oregon.
Pennsylvania Yes all commissions plus exemplary damages not to exceed 2 times the commissions due plus attorney & court costs 14 days If the court finds the action frivolous the Mfg can be awarded attorney’s fees & court costs Laws of 1988, Act 184
South Carolina No all amounts due sales representatives plus punitive damages not to exceed 3 times the commissions due plus attorney’s fees & costs Upon termination If sales rep’s action is frivolous the Mfg will be awarded court costs & attorney’s fees

Mfg who employs Rep in South Carolina can be sued in the South Carolina

Cumulative Supplement of Code of Laws of South Carolina, Vol. 13A, Chapter 65, pg. 59 and 60, Sections 39-65-10 through 39-65-80.
Tennessee Yes 3 times the commission amount; plus attorney’s fees & costs 14 days Mfg who employs Rep in Tennessee can be sued in the Tennessee Tennessee Code Annotated, Section 47-50-114
Texas Yes Liable in a civil action for triple damages plus reasonable attorney’s fees & costs Per K or 30 days The statute expressly prohibits the parties from waiving any of the statute’s requirements, whether by express waiver or by an attempt to make a contract or agreement subject to the laws of another state. A provision establishing venue in another state is void Texas Business and Commerce Code Annotated (Vernon, 1987), Section 35.81 through 35.86[6]
Virginia Yes As in contact, but not more than 30 days Any provisions of the agreement intending to waive the rights of any part to any provision of the statute are void. The failure to execute a contract as required by the statute will not serve as an affirmative defense in any action relating to the statute
Washington Yes 3 times the amount of damages due plus attorney’s fees & cost Upon termination, all commissions due plus those earned but not due, must be paid within 30 days of termination Revised code of the State of Washington, Title 49; 48 Sections 1 through 7
Wisconsin No Commissions due & exemplary damages of not more than 200% of the amount of the commissions due. In addition, the Mfg shall pay the independent sales representative all actual costs, including actual attorney’s fees Upon termination Mfg provide with 90 days prior written notice of a termination or substantial change in of the K, unless otherwise provided in the K between the parties.

States where the Sales Representative Law has been declared Unconstitutional.

STATE IC LAW DAMAGES TIME TO PAY COMMISSIONS WRITTEN K REQUIRED CITATION MISC.
Kentucky* Yes Commission due plus exemplary damages not to exceed 2 times commissions due plus attorney’s fees & costs. 30 days No Kentucky Revised Statutes, Chapter 371. Sections 371.370-371.375 and 371.380-371.385 In March 1995, the United States District court for the Western District of Kentucky found Kentucky’s statue unconstitutional under the Commerce Clause and the Equal Protection clause because it imposed additional burdens on manufacturers that did not have a permanent or fixed place of business in Kentucky. Cecil v Duck head Apparel Co., 895 F. Supp. 155 (W.D. Ky. 1995).
Florida* Yes Commissions plus punitive damages up to twice the commissions plus attorney’s fees 14 days after termination of the K Official Florida Statutes, Section 686.201

*

In September 1992, the Court of Appeals for the third District of Florida held that Florida’s statute “on its face discriminates against interstate commerce by imposing requirements on out-of-state Manufacturers or companies which are not applicable to in-state business.” D.G.D., Inc. V. Jason Berkowitz, 10,115,605 So.2d 496 (Fla. Ct. App. 3d Dist. 1992)

States without laws concerning payment of Independent Contractor Commissions

Alaska

Connecticut

Delaware

Hawaii

Idaho

Montana

Nevada

New Mexico

North Dakota

Rhode Island

South Dakota

Utah

Vermont

West Virginia

Wyoming


[1] Mfg must maintain copy of signed receipt for the K between Mfg and Rep. Rep can require that commissions be paid by registered mail.

[2] (a) An accounting of the orders for which payment is made, including the customer’s name and invoice number; (b) the rate of commission on each order; and (c) information related to any chargeback’s included in the accounting. No contract can contain a provision waiving any rights established by this statute.

[3] provided the principal is furnished 10 days prior written notice of intent to file civil action for exemplary damages

[4] The notice must include reasons for non-renewal & 60 days must be allowed to correct any deficiencies. There are penalties for non-compliance but they must be settled by arbitration & cannot be pursued in a court of law

[5] The statute lists the requirements of the contract which must be included.

[6] In January 1993, the United States District Court for the Northern District of Texas held that the Texas sales representative statute was unconstitutional on Commerce Clause grounds because it applies exclusively to business with no permanent place of business in Texas. John Havir & Assoc. Inc. V. Tacoa, Inc., 810 F. Supp. 752 (N.D. Texas 1993). In 1995, the statute was amended to address the issues raised by the court decision.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

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