In Feb. 2011, Governor Chris Christie signed SB-11

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1 Two Years After the Casino Regulatory Overhaul The Good, the Not as Good, and the Next Steps by Lynne Levin Kaufman In Feb. 2011, Governor Chris Christie signed SB-11 and SB-12 (P.L. 2011, c.18; P.L. 2011, c.19), which streamlined and overhauled the entire gaming regulatory structure in New Jersey. Since the New Jersey gaming regulatory structure was viewed as a best practice model in terms of integrity, some were worried that the revamping would compromise the integrity of the casino industry and lead to a lack of public confidence. Not to worry. New Jersey is still considered by many industry experts to be home to the gold standard of gaming regulation. It is now a more efficient and more cost-effective system that permits New Jersey to be competitive with its neighboring jurisdictions. This article will highlight the changes the author believes have impacted the gaming industry in a positive way, the ones that missed the mark a bit, and the additional steps that can be taken. In the Beginning The New Jersey Casino Control Act was enacted in 1977, 1 following the Nov passage of the constitutional amendment that made New Jersey the second state in the nation, after Nevada, to legalize casino gaming. The purpose of the act was, and still is, to rehabilitate and redevelop existing tourist and convention facilities in Atlantic City. In fact, the act specifically states that Atlantic City, and its resort, tourism and convention industry, represent a critically important and valuable asset in the continued viability and economic strength of the resort, tourism and convention industry of the state of New Jersey. 2 In part as a result of some very public organized crime infiltration into the casino industry in Nevada, and in view of an alleged long history of organized crime in New Jersey, the framers of the act wanted to ensure legalized gaming in the state attained and retained integrity, public confidence and trust, and excluded those with known criminal records, habits or associations. The framers also wanted to ensure there were no unsound, unfair or illegal practices, methods and activities in the conduct of gaming or the carrying on of the business and financial arrangements incident to gaming. As such, the New Jersey regulatory model was set up to encompass every aspect of a casino s business, with many duplicative checks and balances. Two agencies were established to regulate gaming in New Jersey, the Casino Control Commission and the Division of Gaming Enforcement. Over the years, amendments to the act and the regulations promulgated under the act were adopted to try and keep up with changing technologies, industry innovation and the world economy. As the casino industry in New Jersey matured, certain initial rules, such as those requiring a designated amount of convention and public space, those requiring pre-approval of certain non-gaming-related physical changes to the casino such as its carpets, and those requiring pre-approval of promotional activities, were eliminated. In fact, there was omnibus legislation at least six times before the historic 2011 amendments. However, despite the previous amendments to the act, and in large part because of new technologies, the New Jersey regulatory structure became outdated, unduly burdensome, and increasingly expensive. Industry executives and regulators alike realized the duplicative functions of the division and commission only increased costs and slowed down the industry, without providing material added protections. Faced with declining revenues and increased competition, particularly from Pennsylvania, Governor Chris Christie, calling the regulatory structure an antique car, appointed an Advisory Commission on New Jersey Gaming, Sports and Entertainment. The work of that commission, with input from the casino industry, started the process that led to the modernization and streamlining of the New Jersey gaming regulatory structure. 3 6 NEW JERSEY LAWYER April

2 Big Picture Changes The Regulatory Structure Under the former regulatory structure, the commission was the policymaking, rulemaking and Judiciary authority with respect to casinos. The commission issued all licenses, and had the sole power to fine, suspend or revoke a license. The division served investigative and prosecutorial functions. In sum, the commission was the main regulatory body. The division made recommendations to the commission and argued their positions to the commission at hearings, but the commission made the final rulings. Over the years, there developed a significant amount of duplication of regulatory efforts between the two agencies. For example, both the commission and the division had compliance units and financial units. Although the division had a gaming lab to test gaming equipment, the commission still was the agency that issued approvals for new gaming equipment. SB-12 changed all that. It gave the primary authority to promulgate regulations to the division, limiting the commission with the authority to promulgate regulations regarding certain administrative matters. The commission maintained its ability to issue casino licenses, but the division now issues casino service industry enterprise licenses, the licenses required by companies that manufacture or supply gaming equipment to New Jersey casinos. SB-12 eliminated casino employee licensing, replaced it with a registration process, and gave the division sole authority over the process. The division was also given the sole authority to file complaints against licensees and to impose fines and penalties. The commission was removed from the gaming technology approval process, and certain sections of the commission, such as the financial evaluation and compliance sections, were eliminated. One of the most widely publicized changes was the elimination of the commission s gaming inspectors, who previously had a 24-hour-a-day presence in each casino, and who were required to be present in the count room during the currency counting process. The verdict? The streamlining and revamping of the casino regulatory system has been deemed a success by industry experts. No doomsday scenario occurred as a result of the elimination of the commission gaming inspectors. The division has been granting approvals and moving matters more expeditiously than the commission previously could. This is not only because one agency has been eliminated from the process, but also because most gaming matters, other than casino licensure, do not require a hearing. Without the time and expense of a hearing, New Jersey s casinos can implement business decisions just as quickly as their competitors in other states can. Furthermore, the process is less costly. Concerns that enforcement would be too extreme without the check of the commission have not come to fruition. Casinos that violate the act or the regulations continue to be fined, as before, and such fines have been commensurate with precedent. Although the regulatory cost savings of approximately $10 million in the first year was less than the projected $15 million to $25 million, the reduction in regulatory costs only tells part of the story. The changes in the act are now accompanied by equally sweeping regulatory changes, many of which have resulted in staffing and other operational cost savings to the casinos. Other Winning Changes Amendments to the Licensing Process SB-12 eliminated the requirement that non-gaming vendors who conducted business with the casinos over a certain dollar amount obtain a license, and replaced it with a more user-friendly registration requirement. This change is particularly significant because many states, including Nevada, do not require licensure or even registration of non-gaming vendors to the industry. The previous licensing process had made some vendors steer away from New Jersey, not because they were tainted, but because they decided the time and expense of the casino regulatory process did not make good business sense. In keeping with the best practice model of New Jersey, the integrity of the gaming regulatory process is upheld because vendors are vetted and can be investigated, but doing business with casinos is now a less costly and a less time-consuming process. As a result of this change, certain vendors who avoided New Jersey but did business with other states casinos have now become vendors to the New Jersey casino industry. This has enabled New Jersey casinos to have a bigger vendor pool to choose from, and increased competition can lead to reduced pricing. The elimination of costly, periodic casino license renewals in favor of submission of documentation every five years, with a hearing only occurring if the division believes there is an issue that could impact licensing, is a change that saves the time and resources of the division, commission and casino industry. The requirement of resubmissions instead of renewals for casino service industry licensees provides a similar benefit. Again, these businesses are still subject to the jurisdiction of the New Jersey gaming regulatory authorities, but the regulatory process is streamlined. Institutional Investors are Even More Welcome Now In general, any person or entity owning five percent or more of the equity of a casino licensee or casino service enterprise licensee is required to complete lengthy disclosure forms and become qualified under the act. 4 A determination of qualification means the entity has met the act s standards of honesty, integrity and financial suitability. However, for institutional investors (for NEW JERSEY LAWYER April

3 example, licensed financial institutions, insurance companies, pension funds, registered investment advisors and investment companies) who own at least five percent but less than 25 percent of the equity of a licensee, and who sign a passivity certification, this process can be waived. 5 This increases the threshold percentage from the previous threshold of 15 percent, and puts New Jersey on at least equal footing with other jurisdictions, such as Nevada. However, in keeping with the New Jersey best practice approach, the director of the division has the right to require any institutional investor to qualify. 6 Bring Me the Money Fast The casino industry requires billions of dollars to construct, operate and maintain high-quality casino resorts. As such, the ability to obtain casino funding is paramount to its continued success. Historically, several barriers hindered the flow of capital to New Jersey s casino industry. Not only did debt transactions require approval, but it took a considerable amount of time and money to obtain the approval. This time lag occurred because: 1) a hearing was required; and 2) both the commission and the division were part of the approval process. As the ability to launch a financing in today s volatile financial markets becomes more complicated, the gaming regulatory time lag sometimes prevented financing transactions from ever occurring. In addition, the time lag caused casinos to miss out on lower interest rates. Some would argue that gaming capital was diverted to casino projects in other states as a result of New Jersey s burdensome process. Of course, by requiring only notice of such financings, instead of preapproval, both casinos and lenders would have greater flexibility because they can enter into a transaction when the interest rates are favorable, without needing to wait for an approval. While SB-12 did not go quite that far, it set the framework for speedier debt approvals by making the approval process and attendant financial stability analysis a function of division approval only, thereby eliminating dual agency review and the hearing requirement. Furthermore, the removal of the hearing requirement eliminated significant confidentiality concerns of lenders and casinos with respect to projected interest rates and covenants that were sometimes still being negotiated at the time of the hearing. 7 New Jersey is one of the few states that still requires lenders to be found suitable as a financial source, or otherwise waived. However, SB-12 eliminated a requirement that all non-bank lenders of private debt obtain lender suitability or request waivers. Instead, no suitability finding is required unless a lender holds 25 percent of total debt, with a few caveats. 8 Therefore, as most lenders do not reach the statutory threshold, most lenders no longer need to even request a waiver. As with equity, New Jersey casinos are now more open to lenders and other financial sources; however, the regulatory process still ensures the transaction will not impact the financial stability of the casino licensee, as such lenders remain subject to the act and the regulations promulgated thereunder. The division can also exercise its discretion and request lenders to be qualified as a financial source should circumstances warrant. 9 New Jersey Wants You First Before the recent regulatory overhaul, it took as long as six to nine months to get new gaming equipment approved and operational on the casino floor. A main purpose behind streamlining the regulatory structure was to make New Jersey more competitive with neighboring states casinos. A New Jersey First program was adopted to facilitate getting the latest slot machines into New Jersey casinos first. 10 Under the New Jersey First program, any new gaming equipment that is submitted to the division s lab for approval before (or simultaneously with) its submission to any other jurisdiction, can be put on the casino floor within 14 days (unless it is found to be non-compliant). If testing has not been completed within that 14- day period, the new devices will be put on the casino floor on a field-test basis. 11 This provision has successfully encouraged manufacturers to offer their new technology first to New Jersey casinos, because it allows them to get new product on the casino floor faster than the 60-day period otherwise required in the legislation. 12 DO AC Campaign Although this article has focused on SB-12, it is important to note that SB-11 directs the establishment of an Atlantic City tourism district, which includes the casinos, the convention center, and Boardwalk Hall. The tourism district is managed by the Casino Reinvestment Development Authority (CRDA) with other state controls in the district. The most noticeable byproduct of SB- 11 is the DO AC campaign. The campaign is a result of the SB-11-mandated public/private partnership with a nonprofit corporation called the Atlantic City Alliance, comprised of casino licensees and the CRDA, the purpose of which is to market Atlantic City. The DO AC campaign has, through marketing, significantly raised the profile of the city, and the Atlantic City Alliance has stated that initial indications are that it is starting to drive traffic to the resort, particularly patrons who had not been to Atlantic City for many years. Increasing Discretion Leads to Innovation and Cost Savings After the revisions to the act were enacted, it required a similar streamlining and update of the gaming regula- 8 NEW JERSEY LAWYER April

4 tions. 13 Many were drafted long before the current technology back-up systems in place today existed. Additionally, most regulations were drafted when the industry was less mature and the regulatory approach was dictate more, trust less. The current director of the division, David C. Rebuck, under whose watch the division has been transformed, has instead taken the position of dictate less, trust more, allow the casinos to operate their business and foster creativity, and if they violate the law or the regulations they will be subject to penalties. A prime example of this new approach to less regulation is seen in the elimination of certain minimum staffing requirements and jobs compendium submissions. And Then, the Few Exceptions SB-11 and SB-12, and the new regulations promulgated thereunder, 14 have resulted in significant positive changes and cost reductions, and have enabled New Jersey to better compete with other jurisdictions. Instead of being mired in detailed regulations that seemed to serve no purpose, casinos now have the flexibility to make significant operational adjustments to deal with business needs and to compete with other jurisdictions. As noted, approvals for items ranging from gaming equipment to debt transactions to casino floor changes are being routinely received in a short timeframe. Still, no system is perfect and there are one or two areas where the new law and regulation has posed some problems for the casino operator. The first issue is rooted in SB-12. Although non-gaming licensure was eliminated, regulations promulgated under the statute add a requirement that all non-gaming vendors who conduct over $10,000 of business complete a supplemental vendor form, in addition to the vendor registration form that has always been required. 15 The good news is that the supplemental form is simpler than the previous license application form. The bad news is that under the prior law, a vendor who conducted less than $300,000 in business during a 12-month period did not have to complete anything other than the short vendor form. Thus, the new law actually imposes an additional filing requirement on vendors below the previous licensure threshold. As such, on the next round of regulatory forms, the language could be modified to only require completion of the supplement by nongaming vendors whose business meets the threshold that previously required licensure. The second issue is a result of regulatory changes. Since the inception of the act, banks and licensed financial institutions that loaned money to casinos were automatically exempt from licensure. Now, these banks are required to provide additional information and sign a certification. Again, this is a new more burdensome requirement. 16 The next area of concern is the appeal process. 17 If a licensee is unhappy with a decision of the division, their first appeal is to the division. While this process has worked fine this far, and will likely continue to do so with the current director of the division, in the hands of a less reasonable director there could be a situation where the division yields too much power. This is a wait and see area. What is Happening Now Casino regulatory reform is not stagnant. The division has recently requested casino executives to propose revisions to the current regulations, keeping in mind the need to retain the gold standard and the integrity of gaming in New Jersey. It is anticipated that this process could take close to a year, as it is a laborious one, but one that can complement the changes already made and the path the state is on. New Jersey took a risk with regulatory reform and it has been paying off, this momentum may keep the industry moving forward. Additionally, in the past few months both sports betting and mobile gaming have been authorized by the New Jersey Legislature, and regulations have been adopted by the division. 18 The Borgata has implemented a test of mobile gaming. As for sports betting, implementation is awaiting the result of a lawsuit filed by the NCAA and the four major and professional sports leagues, and intervened in by United States Department of Justice, seeking to prohibit New Jersey from sports betting. The legal basis of the lawsuit is that the leagues and the Justice Department dispute New Jersey s contention that the Professional and Amateur Sports Protection Act (PASPA), which prohibits all states from authorizing sports betting with the exception of four jurisdictions (Nevada, Oregon, Montana and Delaware), which had legalized a form of sports betting before PASPA, is unconstitutional. At press time, a decision in this case was expected any day. Furthermore, after the governor conditionally vetoed the latest version of an Internet gaming bill that allowed New Jersey casino licensees, after obtaining a required permit, to conduct Internet gaming with New Jersey residents, the bill went back to the Legislature. 19 The Legislature passed the measure with the governor s revisions (most notably a 10- year sunset period) and on Feb. 26 he signed the bill into law. The division had draft regulations immediately prepared so that it will be ready for the implementation of Internet gaming. Endnotes 1. N.J.S.A. 5:12-1 et seq. 2. N.J.S.A. 5:12-1(b). 3. See their report, titled An Economic Recovery Plan for the State of New Jersey dated July 21, N.J.S.A. 5: N.J.S.A. 5: g. 6. N.J.S.A. 5: c and h. NEW JERSEY LAWYER April

5 7. N.J.S.A. 5: N.J.S.A. 5: e. 9. Id. 10. N.J.S.A. 5:12-100h(5). 11. Id. 12. N.J.S.A. 5:12-100h(2). 13. N.J.A.C. 13:69 et seq. 14. N.J.A.C. 13:69 et seq. and N.J.A.C. 19:40-44 et seq. 15. N.J.A.C. 13:69C N.J.A.C. 13:69C-5A.1d. 17. N.J.A.C. 13:69B-2 et seq. 18. N.J.A.C. 13:69N et seq. and N.J.A.C. 13:69O et seq. 19. A An act authorizing Internet gaming at Atlantic City casinos under certain circumstances and amending and supplementing the Casino Control Act, P.L.1977, c.110 (C.5:12-1 et seq.), amending P.L.1981, c.142,1 4 and repealing section 11 of 5 P.L.2011, c.18). Lynne Levin Kaufman has 25 years of practice as a gaming lawyer, and is a partner in the gaming law department of Cooper Levenson in Atlantic City. She is a past chair of the Casino Law Section of the New Jersey State Bar Association, a board member of the International Association of Gaming Advisors, and a frequent speaker on gaming law. 10 NEW JERSEY LAWYER April