January 23, 2019
appeal from the Department of Law & Public Safety, New
Jersey Racing Commission.
Stein, appellant, argued the cause pro se.
N. Cohen, Deputy Attorney General, argued the cause for
respondent (Gurbir S. Grewal, Attorney General, attorney;
Melissa Dutton Schaffer, Assistant Attorney General, of
counsel; George N. Cohen, on the brief).
Michael Vukcevich, Director of Legal Affairs, attorney for
amicus curiae Darby Development, LLC.
Judges Yannotti, Rothstadt and Natali.
Stein appeals from a final decision of the New Jersey Racing
Commission (Commission), which denied his petition for the
adoption of an administrative rule allowing New Jersey
residents to place wagers with New Jersey's Account
Wagering System (AWS) while physically located outside the
State. He argues that the Off-Track and Account Wagering Act
(the OTAWA or the Act), N.J.S.A. 5:5-127 to -160, does not
preclude such wagering. We disagree and affirm.
1998, the New Jersey voters approved an amendment to the New
Jersey Constitution, which authorized the Legislature to
enact "by law, the specific kind, restrictions and
control of wagering on the results of live or simulcast
running and harness horse races conducted within or outside
of this State." N.J. Const., art. IV, § 7, ¶
2. Thereafter, the Legislature enacted the OTAWA.
See N.J.S.A. 5:5-127 to -160.
OTAWA authorizes the Commission to issue licenses to the New
Jersey Sports and Exposition Authority (Authority) to permit
off-track wagering at licensed off-track facilities. N.J.S.A.
5:5-130(a). "Off-track wagering," is defined in the
Act, as "pari[-]mutuel wagering at an off-track wagering
facility as authorized under this act." N.J.S.A.
5:5-129. "Off-track simulcasting" is "the
simultaneous audio or visual transmission of horse races
conducted at in-State and out-of-State racetracks to
off-track wagering facilities and pari[-]mutuel wagering at
those off-track wagering facilities on the results of those
OTAWA also authorized the Commission to issue a license to
the Authority to establish an AWS. N.J.S.A. 5:5-139(a). The
Authority is defined in the Act as the "account wagering
licensee." N.J.S.A. 5:5-129. The Act states that
"account wagering" is "a form of pari[-]mutuel
wagering in which an account holder may deposit money in an
account with the account wagering licensee and then use the
account balance to pay for pari[-]mutuel wagers by the
account holder." Ibid. The AWS is "the
system through which account wagers are processed."
OTAWA permits New Jersey residents who are at least eighteen
years old to establish wagering accounts with the AWS.
N.J.S.A. 5:5-142(a). The Act also allows account holders to
place wagers with the AWS without having to be physically
present at a New Jersey racetrack or New Jersey off-track
wagering facility. See N.J.S.A. 5:5-144(e). The
account holder may place wagers in person, by telephone, or
through other electronic media such as the internet.
is a New Jersey resident who has established a wagering
account with the AWS. It appears that while on vacation in
Massachusetts, Lewis attempted to place a wager through his
AWS account, but he was not permitted to do so because he was
not at that time physically located in New Jersey. On August
18, 2016, Lewis wrote to the Commission and asserted that the
Act does not preclude him from placing account wagers through
the AWS from outside the State. He requested that the
Commission cease enforcing this restriction on account
August 31, 2016, Frank Zanzuccki, the Executive Director of
the Commission, responded to Lewis's letter. He explained
that "[a]lthough the Act does not specifically prohibit
New Jersey account holders from placing wagers while they are
outside New Jersey . . . the [L]egislative intent was to
create an intrastate wagering system." Zanzuccki noted
that since the inception of account wagering in New Jersey,
the Commission had "routinely imposed" a condition
on the Authority's account wagering license, which
precludes the Authority from "knowingly accept[ing] any
wager from a New Jersey resident account holder, where that
account holder seeks to place such wager while at a physical
location outside New Jersey."
letter, Zanzuccki also stated that in November 2015, the
Commission became aware of the availability of new technology
that allows the Authority to identify the geographical source
of an account wager. Thereafter, the Commission imposed an
additional condition on the Authority's account wagering
license, which requires the installation of "advanced
geo-location software and controls" in the AWS.
Zanzuccki wrote that the purpose of the software was to
"ensure that only intrastate wagers are accepted by the
account wagering licensee consistent with the requirements of
February 23, 2017, Lewis filed a petition with the Commission
for rulemaking pursuant to N.J.S.A. 52:14B-4(f). As noted,
Lewis sought the adoption of a rule permitting AWS account
holders to place wagers with the AWS while temporarily
located outside the State. In the alternative, Lewis asked
the Commission to "declare" that is permissible for
New Jersey resident AWS account holders to open wagering
accounts with account-wagering ...