BANGOR – A Penobscot County Superior Court justice heard arguments Wednesday regarding the Maine Harness Racing Commission’s handling of a racing license for the developer of a racetrack casino at Bangor Raceway.
While making no promises, Justice Andrew Mead said his goal was to issue a written decision on Friday.
At issue is the Maine Harness Racing Commission’s 4-0 decision on Feb. 17 to issue a conditional racing license to Penn National Gaming Inc. The decision, contingent upon Penn’s passing a state-mandated suitability investigation, proved controversial and immediately faced legal challenges. Within a day, CasinosNo! and Maine’s Penobscot Nation and Passamaquoddy Tribe appealed the decision in Superior Court. Both plaintiffs asked the court to vacate the conditional license, though for different reasons.
The tribes ultimately want to operate the Bangor racino, while CasinosNo! opposes gambling. The Christian Civic League of Maine also sought legal standing during the Feb. 17 proceedings, but opted not to pursue the matter in court.
Key issues Mead will address are:
. Did the harness racing commission abuse its discretion or otherwise act unlawfully when it denied the petitioners’ requests to intervene?
. If so, what is the appropriate relief?
. Are the petitioners “aggrieved” for the purposes of these proceedings?
According to Mead, the court’s answer to these questions will determine the future course of court proceedings related to the 2004 racing license.
While he deferred the issue of the petitioners’ allegations of impropriety in the issuance of the license, he noted that it might be necessary to address that topic in the future.
In Wednesday’s oral arguments,
. The tribes, represented by Portland attorney Kaighn Smith, argued that the commission erred when it determined their petition for intervenor status was “untimely” because it was submitted two weeks before the transfer of ownership of Bangor Historic Track, the private company that operates racing at city-owned Bangor Raceway, from original racino developer Shawn Scott to Penn National. The tribes say Penn should have been treated as a new applicant and, as such, should have undergone the suitability investigation before being granted a conditional license.
. CasinosNo!, represented by Portland attorney James Kilbreth, said the commission committed legal errors, abused its discretion and made decisions not supported by substantial evidence. He also argued that the change in the track’s ownership should have triggered a new application process.
Arguing in support of the racing panel’s handling of the licensing matter were Portland attorney Bruce Merrill, representing Scott and Capital Seven; Edward MacColl, Scarborough Downs’ Portland-based legal counsel; Portland attorney Stephen Langsdorf, for the Maine Harness Horsemen’s Association; attorney Catherine Connors of Portland representing Bangor Historic Track; and the racing commission’s lawyer, Bernard Kubetz of Bangor. They concurred that the tribes and CasinosNo! were too late with their petitions for legal standing because the licensing proceedings actually began in December 2003.
Kubetz observed that the petitioners failed to prove they were “aggrieved,” one of the criteria that must be met if they are to be entitled to a judicial review of the racing panel’s actions. He argued that the tribes’ real motivation was to take the racino operation from Penn National and that CasinosNo! was trying to prevent slots from coming to Bangor, despite voter approval at the state and city levels.
Obtaining a racing license was a critical step in Penn National’s plan to develop a racino at Bass Park. The facility would combine harness racing with year-round entertainment, namely slot machines.
The Pennsylvania-based gaming and racing company now is seeking a slots license. First, however, the state must develop regulations and an oversight structure. In January, the Baldacci administration proposed emergency legislation designed to do just that, as well as to make sure the state’s racino-related costs are covered.
That bill, LD 1820, has been reviewed by the Legislature’s Legal and Veterans Affairs Committee, which after amending it, endorsed it in a 10-3 vote. The bill is expected to hit the Legislature floor any day now.
Penn National began the process of acquiring Bangor Historic Track, which operates racing at the city-owned racetrack, in early January, while the commission was in the midst of conducting its state-mandated suitability hearing on Penn’s predecessor, Shawn Scott and Capital Seven LLC.
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