IN RE INSTALLATION OF \"WIPEOUT\" BY EVERMORE FITNESS LLC AT SKY ZONE TRAMPOLINE PARK (NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2099-18T3
IN RE INSTALLATION OF
"WIPEOUT" BY EVERMORE
FITNESS LLC AT SKY ZONE
TRAMPOLINE PARK.
______________________________
Submitted March 26, 2020 – Decided May 5, 2020
Before Judges Suter and DeAlmeida.
On appeal from the New Jersey Department of
Community Affairs.
Daniel Michael Baker, attorney for appellant Evermore
Fitness LLC.
Gurbir S. Grewal, Attorney General, attorney for
respondent New Jersey Department of Community
Affairs (Sookie Bae-Park, Assistant Attorney General,
and Dominic Larue Giova, Deputy Attorney General,
on the brief).
PER CURIAM
Evermore Fitness LLC (Evermore) appeals the December 24, 2018 final
decision by the Commissioner of the Department of Community Affairs
(Commissioner), which determined the "Wipeout" feature that Evermore wanted
to install on trampolines at its Sky Zone Trampoline Park constituted a
"carnival-amusement ride" pursuant to N.J.S.A. 5:3-32(a) and N.J.A.C. 5:14A-
1.2, and is subject to regulation by the Department of Community Affairs
(DCA). The Commissioner denied Evermore's request for an administrative
hearing, citing a lack of disputed factual issues. We affirm.
I.
Evermore operates a Sky Zone Trampoline Park (Park) franchise in South
Plainfield. It purchased a feature named "Wipeout" to be installed on certain
specially designed trampolines in the Park. On December 5, 2018, Evermore
wrote to DCA's Carnival and Amusement Ride Plan Review Unit (Unit), asking
whether Wipeout was an "amusement ride" requiring regulatory review or
approval under N.J.A.C. 5:14A-1.2. Evermore described the Wipeout feature
as
a trampoline attraction with two rotating arms, one low
arm that the customer jumps over and one higher arm
that the customer ducks under. The two arms are given
structure with sealed air—there is no bar in the middle
of the arms. The arms are rotated by a small motor.
The arms stop moving if someone touches them.
Evermore's letter explained why it did not consider Wipeout to be a carnival-
amusement ride under the regulations.
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The next day, Michael D. Triplett, Unit supervisor, wrote to Evermore,
advising that Wipeout would be classified as a carnival-amusement ride under
the Carnival-Amusement Rides Safety Act (Safety Act), N.J.S.A. 5:3-31 to -59.
Shortly afterwards, Evermore requested an administrative hearing.
In the Commissioner's December 24, 2018 final decision, she determined
the Wipeout feature constituted a carnival-amusement ride under the Safety Act.
It met the definition because use of its "rotating hub and arm assembly at the
center of the trampolines is . . . a mechanical device which will on occasion
support or contact patrons . . . ." The people on the trampolines are "in a
restricted area defined by the area of the trampolines and . . . the netting . . . ."
Also, the "purpose of the activity is . . . for the amusement or pleasure of the
patrons." The Commissioner noted DCA regulated similar rides "where the
surface used by the patrons is an inflatable 'bounce' rather than a trampoline"
and that Wipeout posed "hazards" that were "sufficiently similar" requiring
DCA to treat this in the same manner. The Commissioner denied Evermore's
request for an evidentiary fact-finding hearing because there were "no issues of
disputed fact requiring such a hearing[,]" concluding that only a legal question
was raised.
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On appeal, Evermore contends the Commissioner erred by determining
the Wipeout feature satisfied the definition of a carnival-amusement ride under
the Safety Act. It argues the Commissioner was incorrect in finding Wipeout
should be regulated in a manner similar to inflatable devices. Evermore claims
the final decision could have the effect of subjecting every trampoline in the
Park to DCA regulation.
II.
The scope of our review in an appeal from a final decision of an
administrative agency is limited. Russo v. Bd. of Trs., Police and Firemen's Ret.
Sys., 206 N.J. 14, 27 (2011) (citing In re Herrmann, 192 N.J. 19, 27 (2007)).
The agency's decision should be upheld unless there is a "clear showing that it
is arbitrary, capricious, or unreasonable, or that it lacks fair support in the
record." Ibid. (quoting Herrmann, 192 N.J. at 27-28). "Because '[t]he grant of
authority to an administrative agency is to be liberally construed to enable the
agency to accomplish the Legislature's goals,' we defer to '[t]he agency's
interpretation . . . provided it is not plainly unreasonable.'" In re Pub. Serv. Elec.
& Gas Co.'s Rate Unbundling, 167 N.J. 377, 384 (2001) (alterations in original)
(first quoting Gloucester Cty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J.
384, 390 (1983); then quoting Merin v. Maglaki, 126 N.J. 430, 437 (1992)).
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"We also extend substantial deference to an agency's interpretation of its own
regulations, reasoning that 'the agency that drafted and promulgated the rule
should know the meaning of that rule.'" In re Thomas Orban/Square Props.,
LLC, 461 N.J. Super. 57, 72 (App. Div. 2019) (quoting In re Freshwater
Wetlands Gen. Permit No. 16, 379 N.J. Super. 331, 341-42 (App. Div. 2005)).
That said, however, "an agency may not use its power to interpret its own
regulations as a means of amending those regulations or adopting new
regulations." Ibid. (quoting Freshwater, 379 N.J. Super. at 342).
The Safety Act and regulations promulgated pursuant to it, "set forth an
administrative framework for ensuring the safety of those attending carnivals
and amusement parks, including water parks, in New Jersey." Steinberg v.
Sahara Sam's Oasis, LLC, 226 N.J. 344, 360 (2016). DCA is the agency
"charged with the responsibility of enforcing the Safety Act and the regulations
promulgated pursuant to the Act." Ibid. (citing N.J.S.A. 5:3-38). The Safety
Act "articulate[s] legislative and regulatory standards of conduct intended to
protect members of the public who patronize amusement parks . . . ." Id. at 361.
Under the Safety Act, a carnival-amusement ride
means any mechanical device or devices, including but
not limited to water slides exceeding [fifteen] feet in
height, which carry or convey passengers along,
around, or over a fixed or restricted route or course for
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the purpose of giving its passengers amusement,
pleasure, thrills or excitement; and any passenger or
gravity propelled ride when located in an amusement
area or park in which there are other rides covered by
P.L.1975, c. 105 (C. 5:3-31 et seq.); provided, however,
that this shall not include locomotives weighing more
than seven tons, operating on a track the length of
which is one-half mile or greater, the gauge of which is
three feet or greater, and the weight of which is at least
[sixty] pounds per yard.
[N.J.S.A. 5:3-32(a).]
DCA's regulations define carnival-amusement ride in a manner consistent with
this statute. See N.J.A.C. 5:14A-1.2. Therefore, there are three requirements
for a carnival-amusement ride: it must be a "mechanical device;" it has to "carry
or convey passengers along, around, or over a fixed or restricted route or course"
and the purpose of the ride must be to give "its passengers amusement, pleasure,
thrills, or excitement." N.J.S.A. 5:3-32(a)
Neither party disputed the Commissioner's finding that the Wipeout
feature is a mechanical device within the meaning of the Safety Act and
regulations or that the feature is for the "purpose of giving its passengers
amusement, pleasure, thrills or excitement." N.J.S.A. 5:3-32(a). Neither party
disputes that the term "passenger" as used in Safety Act encompasses both a
"patron" of the Park and a "rider."
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Evermore argues the Wipeout feature does not convey passengers along a
fixed route; instead, patrons simply jump in place on the trampoline, trying to
avoid inflated arms that are rotating.
The Commissioner did not expressly state in the final decision that the
Wipeout feature was to "carry or convey" passengers. She found that the
Wipeout feature met the definition because use of its "rotating hub and arm
assembly at the center of the trampolines is . . . a mechanical device which will
on occasion support or contact patrons . . . ."
Neither the statute nor the regulations define the terms "carry or convey."
The legislative history does not provide assistance in defining these terms.
In construing a statute, "[w]e apply to the statutory terms the generally
accepted meaning of the words used by the Legislature." Patel v N.J. Motor
Vehicle Com'n, 200 N.J. 413, 418 (2009). The term to "carry" generally means
"[t]o sustain the weight or burden of; to hold or bear . . . [or] [t]o convey or
transport." Black's Law Dictionary 257 (10th ed. 2014). To convey can mean
"[t]o transfer or deliver . . . ." Id. at 407. The Commissioner found the Wipeout
feature could "support" patrons, which could mean to carry them in a general
sense, and that it made "contact" with patrons, which in many cases "conveyed"
patrons to the ground by knocking them down. Therefore, the final decision was
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not arbitrary, capricious or unreasonable because the Commissioner found this
portion of the statute was satisfied.
The statute and regulations also state the ride carries or conveys
passengers "along, around, or over a fixed or restricted route or course."
N.J.S.A. 5:3-32(a); see N.J.A.C. 5:14A-1.2. The Commissioner's finding that
the passengers are in a "restricted" area found support in the record because the
trampolines were surrounded by netting that restricted the course.
Evermore argues the Commissioner erred in determining the Wipeout
feature needed to be regulated in the same manner as a similar type of feature
on an inflatable. Inflatables are subject to DCA regulations. See N.J.A.C.
5:14A-13.1 to –13.15. "[T]ype [four]" inflatables are inflated by a mechanical
device and "[a]re intended to be occupied or ridden by the public; and . . . the
public enters or mounts." N.J.A.C. 5:14A-13.2(a)(4). They are "considered
amusement rides, regardless of their location . . . ." N.J.A.C. 5:14A-13.2(b).
The Commissioner did not find that Wipeout needed to be regulated like
inflatables only that the DCA did regulate certain types of inflatables as
amusement rides where the public occupied or rode the inflatable, and it was
inflated by a mechanical device. The Commissioner was simply pointing out
that other similar features are regulated. "[R]egulations within the same
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regulatory scheme should, where feasible, be read as consistent with each other."
Czar, Inc. v. Heath, 398 N.J. Super. 133, 139 (App. Div. 2008) (quoting Van
Orman v. Am. Ins. Co., 608 F. Supp. 13 (D.N.J. 1984)).
Evermore argues the final decision will lead to the regulation of
trampolines in the Park. "[I]t is well settled that we will not render advisory
opinions or function in the abstract." Indep. Realty Co. v. Twp. of N. Bergen,
376 N.J. Super. 295, 301 (App. Div. 2005) (citing Crescent Park Tenants Ass'n
v. Realty Equities Corp., 58 N.J. 98, 107 (1971)). We offer no opinion on this
issue nor should this opinion be construed as suggesting any such opinion.
Affirmed.
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