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02/23/87 Mitee Racers, Inc., v. the Carnival-Amusement

February 23, 1987

MITEE RACERS, INC., PLAINTIFF-APPELLANT

v.

THE CARNIVAL-AMUSEMENT SAFETY BOARD ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

504 N.E.2d 1298, 152 Ill. App. 3d 812, 105 Ill. Dec. 780 1987.IL.218

Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. WOODWARD and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Plaintiff, Mitee Racers, Inc., appeals from an order of the circuit court of Lake County which on administrative review affirmed the determination of the Carnival-Amusement Safety Board (Board) that the provisions of the Carnival and Amusement Rides Safety Act (Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 4051 et seq.) applied to the go-cart operation run by plaintiff.

Plaintiff raises four issues on appeal: (1) whether the term "amusement ride" as defined in the Act includes a go-cart track; (2) whether the term "carnival" as defined in the Act includes a go-cart business; (3) whether the Act provides authority to issue "stop operation orders" for reasons other than the operation of amusement rides under hazardous or unsafe conditions; and (4) whether the Board's decision was against the manifest weight of the evidence.

Plaintiff is an Illinois corporation with its principal place of business in Waukegan, Illinois, and is engaged in the business of renting gasoline-powered motor vehicles, commonly known as race carts or go-carts, to occasional applicants for various amounts of time.

A letter was sent to KZK, Inc., a former tenant of the premises operated by plaintiff, by Carl Kimble, chief inspector of the Carnival and Amusement Ride Inspection Division of the Department of Labor on September 3, 1985. It stated that the business had failed to comply with the Act by failing to submit an application, permit fee, inspection fee, and proof of insurance. A "stop operation order" was issued to KZK, Inc., on September 18, 1985, for failure to have proper insurance and permits, and the order was applied to plaintiff.

Plaintiff's attorney sent a letter to chief inspector Carl Kimble requesting that the "stop operation order" be rescinded as the Act was not applicable to plaintiff's business operation. Following Kimble's reply that the order could not be rescinded as go-carts fit the Act's definition of "amusement ride" and plaintiff's over-all operation fits into the generic definition of "carnival," plaintiff filed a petition for review by the Carnival-Amusement Safety Board. The petition stated that plaintiff's business consists of the rental of go-carts, that the renter of each go-cart drives the vehicle upon a paved racetrack for the period of time contracted for, that the vehicles are built and equipped to carry one individual, the driver, that each driver is his own operator and must step on the accelerator to get the vehicle to move, and that plaintiff does carry $500,000 of liability insurance on its business operation.

The Board, in a letter dated November 26, 1985, accepting plaintiff's allegations of fact, found that a go-cart track carries a passenger, whether or not that passenger also steers and accelerates the vehicle, over and around a restricted course for the primary purpose of giving its passengers amusement, pleasure, thrills, or excitement. It is, therefore, an "amusement ride" as defined by the Act. The Board also found that the operation of a go-cart track is the operation of a "carnival" as defined by the statute so that, as plaintiff did not obtain a permit or the necessary insurance required by the Act, the "stop operation order" would not be rescinded.

Plaintiff then filed a complaint for administrative review of the Board's decision pursuant to section 2-13 of the Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 4063). The trial court entered an order May 23, 1986, affirming the Board's order refusing to rescind the "stop operation order." The court found that plaintiff's go-cart operation was subject to regulation by the Act and that failure to have proper insurance and a permit in and of itself made plaintiff's operation unsafe and hazardous because the operation had not been properly inspected by the appropriate authorities. This appeal followed.

The Carnival and Amusement Rides Safety Act was approved August 3, 1984, and became effective January 1, 1985. The Act provides in part pertinent to this appeal:

"'Amusement ride' means any mechanized device or combination of devices, including electrical equipment which is an integral part of the device or devices, which carries passengers along, around, or over a fixed or restricted course for the primary purpose of giving its passengers amusement, ...


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