SUPERIOR Court Judge Joseph N. Camacho has ruled in favor of a Saipan poker operator in its lawsuit against the Commonwealth Zoning Board.
The judge finds that there is “ambiguity” as to the deadline to comply with Saipan Local Law 18-05 or the Saipan Adult Gambling Machine Business Zoning Law of 2013.
The zoning law mandates the relocation of poker arcades to designated commercial zoning districts and at least 200 feet away from any church, public and private school, park or playground.
In his 32-page order, Judge Camacho finds the Zoning Board’s Feb. 2018 decision denying the plaintiffs’ request for an extension as “arbitrary and capricious.”
“The Zoning Board’s decision was contrary to the evidence and is not a product of agency expertise,” he said.
Judge Camacho reversed and remanded the Zoning Board’s decision, denying the plaintiffs’ request for an extension for a formal and proper administrative proceeding and agency hearing.
Likewise, the court ordered the Zoning Board “to develop appropriate guidelines and regulations to address extension requests and conduct administrative proceedings and agency hearings through an administrative hearing officer or similar forum to allow for the presentation of evidence, testimonies of witnesses, etc. in accordance with section 1210(b)(2) of the Saipan Zoning Law of 2013.”
On March 18, 2018, Sin Ho Nam, Winnerslife, Inc., formerly known as Sin Ho Development, Inc., and Dan Ni Choi, LLC, through attorneys Robert T. Torres and Oliver Manglona, filed a complaint for judicial review and declaratory relief, alleging, among other things, that the Zoning Board violated their substantive and procedural due process rights by denying the plaintiffs’ application for an extension to relocate their poker gaming establishment without notice and opportunity to be heard; and that the Zoning Board’s denial of the plaintiffs’ request for an extension to relocate was arbitrary and capricious because the Zoning Board never promulgated regulations regarding the amortization provision of the Saipan Zoning Law.
The lawsuit named the Zoning Board, its former chair, the late Diego C. Blanco in his official capacity; former Secretary of Finance Larissa Larson in her official capacity; and five other Does as defendants.
Complaint
According to the complaint, Winnerslife has a non-transferable license in the CNMI to engage in the commercial operation of poker machines at its Finasisu and Kagman III locations.
Winnerslife owns 19 poker machines licensed for operation and pays an annual licensing fee of $12,000 for a poker machine’s license or $228,000 for all 19 poker machines to the CNMI.
On Oct. 25, 2013, the Saipan and Northern Islands Legislative Delegation enacted Saipan Local Law 18-05. That law prohibited gaming in residential villages unless a discretionary extension to existing poker operators was granted by the Zoning Board. Nonconforming adult gambling machine businesses were given up to four years from the effective date to relocate.
In October 2017, the Zoning Board announced that Saipan poker machine owners and operators had to either relocate to designated areas in Saipan by Oct. 25, 2017, shut down, or pay a penalty of $1,000 per day.
The plaintiffs filed a request for an extension on Oct. 16, 2017.
On Nov. 20, 2017, the Zoning Board created an application form to request for an extension.
The plaintiffs then filed suit seeking injunctive relief in the Commonwealth Superior Court after the Zoning Board failed to respond to their requests.
The defendants removed the case to the United States District Court and the plaintiffs’ suit was dismissed as not being ripe due to the threat of enforcement being too vague and uncertain to conclude enforcement was imminent.
Following the dismissal from the United States District Court, the Zoning Board provided the plaintiffs a form to apply for an extension of time to relocate per Saipan Zoning Law.
The form was developed on Nov. 20, 2017.
On Jan. 10, 2018, Zoning Administrator Therese T. Ogumoro submitted a memorandum to the Zoning Board for extension requests. Her letter explained the criteria for submitting an extension request and explained what the extension request deadline was based on S.L.L. 18-05.
On Jan. 14, 2018, the Zoning Board notified the plaintiffs that an application form was available for them to complete for an extension request. The application was due on Jan. 16, 2018.
On that day, the plaintiffs submitted the application and attached documents.
On Jan. 18, 2018, the Zoning Board held a hearing for 14 companies, including Winnerslife, requesting extensions.
Winnerslife asked the Zoning Board for more time to submit the amortization plan required by the application. The Zoning Board gave a one-week extension for Winnerslife to submit the amortization plan.
On Feb. 21, 2018, the Zoning Board held another hearing for SZL Title 10 § 1210(b)(1) extension requests including the one from Winnerslife.
During that hearing, the Zoning Board had a closed executive session and later rendered its order denying extension.
