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Park News
www.parkworld-online.com
MERLIN’S 2008
Park Law
RESULTS
by Heather M Eichenbaum Esq
Merlin Entertainment has released its 2008 results,
When health &
the first since it acquired the Tussauds Group and
safety agencies collide
Gardaland in Italy, helping it put on an additional
7.6 million visits compared to 2007 (35.1 million in total). This in turn
In the United States, amusement parks are often regulated by State or local
contributed to the world’s second largest attraction operator posting a agencies. Many of these agencies have the authority to mandate how an
37% increase in revenue to £662.3 million ($1.05bn/Euro.037754m). amusement attraction is maintained or operated.
This represents the eighth consecutive year of double-digit growth for
American amusement parks are also, always, governed by the federal
Merlin, whose operating profit in 2008 was up by 12% on 2007 to
Occupational Safety and Health Administration (OSHA). OSHA was
£142.2 million. Cash at bank and in hand at year-end was £114.9
created in 1970 to prevent work-related injuries, illnesses and deaths by
million, with immediately available money market funds of £23.8 million.
issuing and enforcing standards for workplace health & safety and governs
Such performance had led to Merlin being acknowledged as the UK’s
virtually all workplaces. OSHA standards include regulation of such
fastest growing private company in terms of profit in the
common amusement park issues as fall protection, lock-out tag-out,
guarding and personal protective equipment. You probably have a similar
PricewaterhouseCoopers Profit Track 100 rankings. Although much of the
organisation in your country.
group’s growth has been through acquisition, it has also embarked on an
So, what do you do when an agency requires you to maintain or
ambitious expansion programme of its “midway” attraction formats.
operate an amusement attraction in a way that you believe violates OSHA
“The 2008 figures demonstrate that through a policy of strategic or other health & safety standards? After all, how do you weight patron
investment, clear positioning and tight financial management Merlin has safety – that is presumably the goal of the agency’s directive – against
successfully integrated these [Gardaland and Tussauds] businesses, and
employee safety ensured through OSHA compliance?
is beginning to maximise the latent potential and return on capital
You don’t.
investment across these acquisitions, as well as its existing individual
If an agency is purporting to require you to take action(s) that would
attractions,” says a Merlin spokesperson.
violate health & safety, you are placing yourself – and your employees – in
Merlin attributes its success to a number of factors including its senior
a dangerous situation if you follow the directive. Instead, let the agency
management team, staff development programme, strong branded
shut down the attraction and immediately seek legal assistance. You
cannot knowingly violate OSHA regulations. Wilful (or sometimes even
attractions, a mix of indoor/outdoor and resort/midway attractions, and
grossly negligent) violations can lead to criminal charges and, at the very
sustained organic growth combined with new openings and selective
least, will result in hefty fines.
acquisitions.
Although you may lose income from the attraction, you can seek
“We are very encouraged by these results, and by the fact that a large immediate legal relief through an injunctive procedure to obtain a
proportion of our growth in 2008 was driven by like-for-like trading in “declaratory judgment” – a very quick ruling by the Court concerning your
our existing parks and attractions,” says Merlin CEO, Nick Varney.
obligations to abide by OSHA standards. The Court should find that you
“Indeed, I believe Merlin’s real success lies in our ability to maximise
cannot be required to violate OSHA by the agency and either overrule the
organic growth within the business through planned investment in all
agency’s mandate altogether or suggest some other means of finding a
our sites combined with high levels of customer service.”
solution, such as mediation.
“Early results for 2009 are promising,” the company spokesperson
Keep in mind, however, that the Court may not always issue a ruling you
informs us, “while the public may be cutting back on foreign holidays
like. The Court may side with the agency. However, at that point, if you re-
open the attraction you at least have a plausible defence to any alleged
and other perceived luxuries, a family day out at a quality attraction
OSHA violations because you were ordered by a Court to operate in that
potentially becomes even more important. What Merlin has to deliver is
manner. Meanwhile, proceed quickly to obtain appellate review of the
the value for money and customer service those customers will
adverse decision.
increasingly demand.” Finally, get the ride manufacturer involved in these discussions whenever
A fuller list of figures, breakdowns and the annual review are possible. This is particularly true where the agency is recommending a ride
available at: www.merlinentertainments.biz
modification, either in design or operation, that causes you concerns about
safety. The manufacturer will be in the best position to explain to the
agency why its mandate is a bad idea. Further, the manufacturer may also
Futuroscope founder dies
be best able to explain your position to the Court if the agency won’t
waiver and you are forced to file for relief.
René Monory, the founder Futuroscope, passed away
In short, do not ever operate a ride in violation of OSHA or any other
on April 11 at the age of 85. Born in 1959 in the small French town
national health and safety standards. If you find yourself in a situation
of Loudun, he began his working life as a salesman of agricultural
where you are being told you must do so, seek legal assistance and
equipment and petrol for his father’s garage business, but went on to
redress from the courts to best protect yourself, your guests and your
have a political career that saw him taking up a wide range
employees from harm.
of offices at local, regional and national level.
It was as education minister under the Chirac government that
Heather Eichenbaum is an attorney with Spector Gadon & Rosen PC, located in
Monory, an enthusiast for IT, came up with the idea for Futuroscope.
Philadelphia, New Jersey, Florida and now New York. Clients include Six Flags,
The scientific theme park in Poitiers went on to become an influential
Steel Pier, Gillian’s Wonderland, Holiday World and Reithoffer Shows. Heather
attraction, and one that also revived its founder’s political career.
can be reached at +1 215-241-8856 or heichenbaum@lawsgr.com
JUNE 2009 7
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