                              NOT FOR PUBLICATION WITHOUT THE
                             APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
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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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                                          2
      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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                                         3
      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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                                             4
"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

                                                                        A-2099-18T3
                                       5
            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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                                        6
      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


                                                                         A-2099-18T3
                                         7
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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                                        8
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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