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Joint Petition of Boardwalk Regency Corporation v. New Jersey Casino Control Commission6/21/2002
aid DiBartolomeo $750,000 for not working in an industry from which he had been legally barred. Payment under these circumstances would, as suggested by the State in its brief, "be violative of public policy and contrary to the purposes underlying the Act."
In support of his position, DiBartolomeo relies on the following language of N.J.S.A. 5:12-104b: "Any such agreement may be reviewed by the commission on the basis of the reasonableness of its terms, including the terms of compensation, and of the qualifications of the owners, officers, employees, and directors of any enterprise involved in the agreement . . . . " (emphasis added). DiBartolomeo argues that the phrase "any enterprise" refers to vendors in the casino service industry, not casino employees. He relies in part on N.J.S.A. 5:12-12, which defines casino service industry as " ny form of enterprise which provides casino applicants or licensees with goods or services regarding the realty, construction, maintenance, or business of a proposed or existing casino hotel . . . ." DiBartolomeo submits that since the cited language of N. J. S. A. 5:12-12 is similar to the language of N.J.S.A. 5:12-104b, the latter statute, by its use of the term "any enterprise," references a provider of goods or services, rather than a casino employee. Although there is superficial appeal to DiBartolomeo's argument, such a construction would be inimical to the legislative intent underlying the Act )) strict regulatory control to all aspects of the business of a licensed casino. His narrow reading of the statute fails to recognize that a contract between a casino and its president has a significant impact upon the casino's business operations.
There is another reason the term "any enterprise" does not limit the scope of the statute to vendors in the casino service industry. The statute says: " ny such agreement may be reviewed by the commission on the basis of the reasonableness of its terms, including the terms of compensation . . . and . . . the qualifications of the owners . . . of any enterprise involved in the agreement." N.J.S.A. 5:12-104b (emphasis added). Contrary to DiBartolomeo's position that this language limits the types of agreements the Commission may review to those with third parties, we view the word "including" as merely illustrative, not limiting. See Jackson v. Concord Co., 54 N.J. 113, 126-27 (1969) (holding that the word "include" is a word of enlargement, not limitation) (citations omitted). A contrary interpretation would be unresponsive to the broad regulatory powers afforded the Commission under the Act.
DiBartolomeo also relies upon N.J.A.C. 19:43-10.2, which lists various types of agreements casinos are required to maintain under N.J.S.A. 5:12-104b. He takes the regulation out of context. The regulation is found in Subchapter 10 of the regulations, see generally N.J.A.C. 19:40-1.1 to -19:43-16.2, which solely addresses the requirements for doing business with vendors. It does not speak to all other contracts to which a casino may be a party. As such, it does not limit the scope of N.J.S.A. 5:12-104b. See Fedders Fin. Corp. v. Director, Div. of Taxation, 96 N.J. 376, 392 (1984) (noting that regulations may not extend beyond the Legislature's intent as expressed in a statute) (citations omitted).
DiBartolomeo further argues that since Section 104b is silent as to the Commission's authority to review agreements involving casino employees, while Section 104a(3) specifically provides that agreements between a casino and its employees involving profit-sharing plans are reviewable by the Commission, a comparison of these two statutory provisions evidences the Legislature's intent to limit the Commission's authority
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