On appeal from the New Jersey Casino Control Commission.
McElroy, Dreier and Shebell. The opinion of the court was delivered by Shebell, J.A.D.
[203 NJSuper Page 233] In this appeal the Atlantic City Casino Hotel Association challenges the validity of the July 2, 1984 amendments to the license fee and work permit regulations of the Casino Control Commission, 16 N.J.R. 1809, as well as the provisions of N.J.A.C.
19:41-9.4(f). Following the Commission's publication of its proposals in the New Jersey Register the Association filed written objections to the proposed amendments, appeared at the public meeting on the amendments and orally expressed its opposition. Its principal objection is that the regulations do not require other licensees to pay the Commission's full cost of investigating, processing and regulating them, thereby shifting to the casinos the burden of paying for any shortfall. Appellant's motion for a stay of implementation of the amended regulations pending this appeal was denied by this court and by our Supreme Court.
Appellant first attacks the amendment to N.J.A.C. 19:41-9.5 which increased the work permit fee charged a casino for each employee from $30 to $50 per year. The regulation states:
In accordance with Sections 106 and 142 of the Act [ N.J.S.A. 5:12-106 & -142], a casino licensee shall obtain work permits for all persons appointed or employed by such licensee. Each casino licensee shall pay an annual fee of $50.00 for each work permit obtained.
The Casino Control Act as it concerns work permit fees provides:
The commission shall, by regulation, establish annual fees for the issuance and renewal of work permits for the various classes of employees, which fees shall be payable by the employer licensee. [ N.J.S.A. 5:12-142]
Appellant asserts that the $50 fee so far exceeds the actual cost to the Commission that it compels the conclusion that the Commission is using the fee as a "disguised technique for raising revenue" for its general operations.
Appellant requested from the Commission certain figures concerning its operation and concludes from the information supplied that the Commission's expenditures in processing work permits for the period from 1979 to 1983 were about $375,000, while the revenue from work permit fees totalled $5.5 million. The Commission has not attempted to refute these figures but instead argues that there is no impropriety and that the work permit process must be seen in the larger context of employee licensing and regulation to which the Commission devotes vast
resources which are not funded by any specific fees. It declared in its brief:
The Commission points out that the Act creates two categories of licensees: the casinos themselves (N.J.S.A. 5:12-139) and casino employees (N.J.S.A. 5:12-141 & -142). It notes that with regard to the licensing of casinos the statute specifically provides that the licensing fees are to be based on actual costs, whereas in dealing with fees to be assessed to employee licensees (N.J.S.A. 5:12-141) and to the casinos for employee work permits (N.J.S.A. 5:12-142) the statute fails to provide that the fees be based upon costs. The Commission concludes that the differing treatment of these two categories of licensees "reflects a legislative recognition and judgment that casino applicants and licensees benefit directly or indirectly from all aspects of the regulatory process and are best suited to bear the largest share of the costs incurred by the agencies in implementing that process." N.J.A.C. 19:41-9.1b.
We agree with appellant that the work permit fees charged to the casinos for its employees must be reasonably based upon and not exceed the approximate cost of processing, monitoring and administering the permits. We recognize that the Legislature has on occasion when granting statutory authority for charging licensing fees specifically provided that the fee shall not be fixed at a level higher than the amount estimated to be required, just as it has done in other areas of the Casino Control Act. See, e.g., N.J.S.A. 45:1-3.2 (dentistry licenses); N.J.S.A. 58:10A-9 (Department of ...