Before Judges King, Carchman and Lintner.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Department of Community Affairs of New Jersey.
The opinion of the court was delivered by
This appeal presents a situation where the gaming and public safety concerns of casino design and construction may conflict. Appellant Atlantic City Showboat, Inc. (Showboat) contends that the regulatory authority of the Casino Control Commission (CCC) should prevail over the authority of the Department of Community Affairs (DCA) with respect to certain recently adopted DCA design and construction safety regulations for casinos, N.J.A.C. 5:23-9.6
This is a sensitive area. We are uncertain if there is an actual present conflict between the two regulatory schemes. We decline to strike the challenged regulations on conflict or preemption grounds on this record. If, or when, a true conflict emerges, we are confident that the DCA and the CCC will coordinate regulation in the overall public interest. If not, this court can then resolve any conflict, probably and preferably after a record is created at an evidentiary hearing. Meanwhile, we remand to both agencies so that Showboat may seek declaratory relief under the Administrative Procedure Act (APA), N.J.S.A. 52:14B-8, at a joint hearing under the auspices of the Office of Administrative Law (OAL), see Mortgage Bankers Ass'n of N.J. v. New Jersey Real Estate Comm'n, 102 N.J. 176 (1986).
On May 18, 1998 the DCA published 30 N.J.R. 1678 which proposed amendments to N.J.A.C. 5:23-9.6. The DCA solicited comments to the proposed amendments and received them from several sources, including appellant Showboat. On August 14, 1998 the Commissioner of the DCA adopted the proposed amendments. They were filed on August 18, 1998 and published on September 21, 1998 at 30 N.J.R. 3466.
Pursuant to R. 2:2-3(a)(2), Showboat filed a notice of appeal on November 4, 1998, facially challenging the validity of the adopted amendments. Showboat contends:
POINT I THE DCA ACTED IN VIOLATION OF THE CASINO CONTROL ACT WHEN IT CREATED THESE REGULATIONS AND PURPORTED TO ASSUME CONTROL OVER THE NATURE, SIZE, AND DENSITY OF SLOT MACHINES IN THE CASINOS OF ATLANTIC CITY.
POINT II THE AMENDMENT TO THE DCA REGULATIONS CREATING NEW AND ONEROUS RESTRICTIONS UPON THE CONSTRUCTION AND LAYOUT OF THE CASINO FLOOR AND THE DENSITY AND SIZE OF SLOT MACHINES SHOULD BE INVALIDATED AS THERE IS AN ABSENCE OF ANY FACTUAL BASIS ON THE RECORD FOR THESE STRICTURES.
Before the promulgation of the amendments under challenge, the DCA specifically had regulated certain limited aspects of casino gaming operations in Atlantic City. Prior to the challenged amendment, the DCA regulation N.J.A.C. 5:23-9.6 provided:
Interpretation: Fixed central pedestal seating in casinos
(a) Fixed central pedestal seating (stools) shall be allowed within major aisles and cross-aisles in casinos for gaming patrons who use standard size slot machines or other similar machines, within these aisles, provided the following requirements are met:
1. Schematic drawings shall be submitted to [DCA] for review and approval which indicate the dimensions and locations of the stools, and the distances from adjacent fixtures, walls or other fixed objects;
2. Stool placement shall not result in any reduction of the required aisle accessway width when measured from the stool and any other adjacent obstacle, including, without limitation, other stools in back-to-back seating arrangements;
3. Stools that swivel and have a back rest shall be restricted so as to rotate in only one direction, operate in a series, and be self-centering; and
4. A minimum clearance of eight inches, measured from the face of the gaming machine base at knee height, shall be provided between the gaming machine and the stool and a minimum clearance of 10 inches, measured from seat edge to seat edge, shall be provided between adjacent stools, in order to ensure discharges clearances.
This earlier regulation was limited to fixed pedestal seating at casinos. In 1998, the DCA issued the more comprehensive regulations, challenged here, seeking to more strictly regulate the floorplans of casinos.
The new regulations added an additional requirement to stool placement: "[t]he minimum clear width of aisles with slot stools shall be 48 inches." N.J.A.C. 5:23-9.6(a)(5). The regulation also added new requirements as to the layout of the casino floors. (b) The following code requirements shall apply to all gaming floors:
1. The use group of the gaming floor shall be A-2. *fn1
2. Each gaming floor area shall be designed using an open landscape plan such that there is clear visibility throughout the floor and at least two of the exits are clearly discernible from all portions of the floor. Line of sight obstructions shall be limited and shall be subject to the approval of the Department.
3. An egress study shall be provided for each new egress route and for all modifications to an existing egress route, increases in occupant load or changes of egress elements for gaming floor areas.
i. The occupant load shall be calculated at 7.5 square feet per person gross for all gaming floor areas, regardless of the gaming activity.
ii. The total capacity of the means of egress shall be calculated based on 116 2/3 percent of the calculated occupant load of any floor area containing gaming activities and any adjacent spaces using the gaming floor for exit access.
iii. Travel distances shall be delineated on the egress study and shall be measured from each an every occupiable point on the gaming floor to the closest exit. The travel distance shall be measured along the natural path of travel using a distance of one foot from obstructions, corners and walls and using the center door openings.
iv. Each egress route shall identify the travel distance, number of occupants and size and type of egress elements.
[N.J.A.C. 5:23-9.6(b)(1) to (3).]
The amendments also regulated "back-of-house" areas which require security by applying the "special locking arrangements in penal facilities" section of the BOCA Code to those areas. N.J.A.C. 5:23-9.6(b)(4).
Most controversial, the amendments also included specific restrictions on the height, placement and size of slot machines:
5. Each slot machine installed on gaming floors shall comply with the following:
i. Each slot machine, other than those located at perimeter walls and columns, shall have a maximum overall height of 65 inches including base, except if the slot machine is placed at a location on the casino floor that ...