David Novstrup Wants to Regulate Certain Inflatable Recreational Devices

David Novstrup spent ten years of his twenties and thirties in Pierre as a Republican legislator. But as he grows older, he may be giving his old conservative colleagues cause to worry that he’s turning into a big-government liberal. Fresh off his 36th birthday, David Novstrup climbed the Capitol steps yesterday to advocate increased regulations that, according to conservative committee members, would usher in the heavy hand of government to kill small businesses.

Senate Majority Leader Kris Langer (R-25/Dell Rapids) deigned to carry Senate Bill 95 for Novstrup. She introduced it to Senate Commerce and Energy simply as a “consumer protection bill that will protect my granddaughter, hopefully, from anything,” then yielded the mic to David and split.

David Novstrup explained why he wants to, as the bill is titled, “establish standards regarding operation of certain inflatable amusement devices.” Testifying with a diffidence one would not expect from a ten-year veteran of the Legislature, Novstrup meekly and vaguely recounted a “situation” that he saw “last summer or fall… at an event at this place” where a little girl was climbing and jumping where she wasn’t supposed to on an inflatable bouncy house. Nothing bad happened, but Novstrup observed that no one was supervising the children playing on the bouncy house and that there were no mats on the concrete around the inflatable device.

Let’s pause and note that Novstrup was apparently watching what was happening. He saw a little girl in apparent danger. He did not mention doing anything to warn her of that apparent danger.

Apparently that’s “why I brought this bill—er, had Senator Langer bring the bill”—Novstrup wants government to protect people from themselves so he doesn’t have to.

Novstrup noted that his family has been in “family entertainment center” business for 24 years. (His dad Al, who took his Senate seat in 2017 and sat on committee yesterday watching his son’s testimony, was doing that business last week, skipping three Legislative work days to enjoy an amusement park convention in sunny Texas.) “We don’t have inflatables, we don’t plan to have inflatables,” David averred, but serving on an industry risk management committee, he said he’s heard insurance reps say 90% of insurance claims accuse operators of lack of supervision.

We thus need Senate Bill 95 to require everyone who owns or leases a bouncy house to follow new state regulations or face a Class 1 misdemeanor (a year in jail and up to $2,000 fine)

I can’t tell you exactly what those regulations would require, because SB 95 pegs those standards to the “the American Society of Testing and Materials standards for the maintenance and operation of inflatable amusement devices, as set forth in standard F 2374-10.” ASTM charges $50 for a copy of that four-page document.

Hmm… I’m supposed to follow the law, but I have to pay a private entity to find out exactly what that law requires of me.

Senator Craig Kennedy (D-18/Yankton) jumped on that point later during questions. When he asked where he could get a copy of the standard, David Novstrup said he didn’t know if the standards are available publicly, and he didn’t take time to read any specific items from ASTM F2374-10. He simply asserted that most ASTM standards simply point to the manufacturers’ manuals and labels on the bouncy houses.

Say, did you notice that “10” at the end of the standard? That’s short for 2010, the year ASTM published that standard. ASTM declared that standard out of date and superseded it with ASTM F2374-17 in 2017 (32 pages, $69). David said the current version is too long and “too much for South Dakota.” SB 95 thus deliberately writes an obsolete safety standard into law.

Jeanine Maskovich, owner of Bounce Around inflatable play place in Pierre’s Northridge mall (and convicted thief!) spoke in opposition to the bill. She said her business and every bouncy-house center she’s visited take precautions, but no one can control what children and adults who don’t follow the rules. “Kids are kids,” she insisted, “…accidents are still going to happen.”

Like Senator Kennedy (mentioned above), committee members made clear they were skeptical of Senate Bill 95. Senator Stace Nelson (R-19/Fulton) said his daughter occasionally rents a bouncy house for his grandkids; he worried that SB 95 could hit her with a Class 1 misdemeanor. David at first responded that his bill (er, Senator Langer’s bill) dealt just with the operator, not the renter, of the inflatable. Senator Nelson recited the first words of SB 95—”No person who owns or leases an inflatable amusement device….” Novstrup admitted that a prosecutor could probably make the argument that Stace’s daughter should go to jail and suggested that the committee ought to strike “or leases” from the bill.

(Novstrup sputtered through questions from three other legislators before it occurred to him to read eighteen words ahead and tell Senator Nelson that SB 95 would only apply to folks who make their bouncy houses “available for public use.”)

After Senator Kennedy’s questions about accessibility and enforcement, Senator Jeff Monroe (R-24/Pierre) said he Googled the standards and found they exempted inflatables manufactured prior to publication of the standards. He asked (around 17:30 in the SDPB audio) if David Novstrup was happy with grandfathering old devices. Novstrup’s response about design, maintenance, and operation was at least off point if not largely unintelligible. Senator Monroe then asserted that the standards were so costly and complicated that they would put every bouncy-house operator in places smaller than Rapid City out of business. “Is it o.k. with putting these people out of business with risk of a year in jail and a $2,000 fine?” Senator Monroe (by his own admission) rambled a bit more, and Chairman Jim Stalzer (R-11/Sioux Falls) chose to pretend Monroe had not actually posed a question, letting David off the hook of responding to that pointed anti-regulatory inquiry.

David’s dad, Senator Al Novstrup, tried to intervene in his son’s faltering performance with an amendment (though it’s hard to tell, because Al keeps forgetting to turn on his mic!), but Chairman Stalzer kept questions going for a bit.

Senator R. Blake Curd (R-12/Sioux Falls) said SB 95 seemed to confuse device specifications for operational requirements, thus making it hard to comply. David Novstrup admitted, “I get what you’re saying… trying to figure out a way to address it….” As David trailed off, Senator Curd broke in to say SB 95 needs a statement clarifying that device must be operated in accordance with standard and said the committee should maybe “chill on this… with some drafting corrections… it seems awkwardly worded, and I don’t know how we would make it satisfactorily functional in statute.”

Senator Nelson noted that SB 95 refers to attendants and training and asked who all else is subject to the misdemeanor and what training they would have to attend to stay out of jail. David said folks just would need to read the bouncy-house label.

With question over, Senator Al Novstrup finally moved, not closer to his mic, but to amend: strike “or leases” and strike the “Class 1 misdemeanor” line. No one seconded that amendment.

Senator Phil Jensen moved to defer the Senate Bill 95 to the 41st day (i.e., kill it!). Senator Nelson seconded. Senator Jensen said SB 95 was well-intended, but “not ready for prime time.” He called SB 95 an “overreach of government” and invoked a literal slippery slope argument: “I can just imagine the heavy hand of government coming out and trying to regulate those soap bubble things” to keep kids from slipping on the soapy ground.

Senator Al Novstrup tried to salvage his son’s failed testimony, by admitting what a bad job he and David had done. He said that maybe “we” should have done a better job of letting the committee know what the standards say (telling us what exactly a law will require—that’s a pretty low bar for new legislation). But Senator Al Novstrup said that we’ve all seen YouTube videos of bouncy houses coming loose in high winds and kids getting blown half a mile away (for the record, I never saw such a video before Al mentioned it, and I can find a max bounce-away of 0.2 mile… but even that makes me think we should amend SB 95 to require all equip all bouncy houses with airbags), so we should keep this bill alive so we can fix it. In that spirit, Senator Al Novstrup substitutionally moved to defer SB 95 to Thursday ask the sponsor to clean up the language and bring back a bill that is actually safety-oriented and in the best interest of the consumers of South Dakota.”

Even that polite favor passed by a slim 4–3 margin. Jensen, Monroe, and Nelson voted nay; Democrat Kennedy saved the Novstrups’ bacon. “O.K., we’ll give you one more shot at it,” Chairman Stalzer said to David Novstrup after the vote.

After ten years of experience, you’d think a former legislator could breeze into a committee hearing with a perfectly polished bill, explain it with detail and confidence, and secure the unanimous approval of his old friends in the majority-monolith party. Instead, David Novstrup shambles in with a bill so bad that his own father had to admit it wasn’t ready for passage.

Senate Commerce and Energy reconvenes Thursday, February 7, at 10 a.m. in Capitol Room 423.

By the way, David Novstrup and his dad will be opening a new indoor amusement facility in Aberdeen later this year. So there, Senator Monroe: SB 95 evidently wouldn’t kill every small-town entertainment business. If Senate Bill 95 does pass and create too much regulation for you to deal with in renting a bouncy house for your kids’ birthday party, don’t worry: David and Al will offer you a new venue where you can pay David and Al to worry about all those pesky big-government regulations for you… regulations that David and Al asked for in the first place.