AUGUSTA — A lawyer for Scarborough Downs challenged the legality of the chosen location for the Oxford casino and said Scarborough Downs had scoped out a location in Oxford County that adheres to gambling law.
Edward MacColl told the state Gambling Control Board on Wednesday that under current law, the board could not approve a casino for Black Bear Entertainment because, measured in a straight line, its chosen site in Oxford is 94 miles from Hollywood Slots in Bangor.
Black Bear Entertainment has asserted that the 100-mile minimum distance between casinos and other slot-machine facilities is measured by most-traveled roads, as determined by the Maine Department of Transportation. By that measure, the planned site for the Oxford casino is about 125 miles from Hollywood Slots.
The Gambling Board will meet again Friday morning to make a decision on the issue. If it rules against Black Bear, it could cause delays for the Oxford casino, on which investors hoped to begin site work in April.
Peter Martin, spokesman for Black Bear Entertainment, called MacColl's argument a “smokescreen” and said the idea that Scarborough Downs had a site in mind in Oxford County was a bluff.
“He does not have a site that fits the criteria of the Oxford referendum in Oxford County,” Martin said. “We've looked at all of the available sites. We've had professional mapping companies come in and map these areas.”
“(MacColl) has his own referendum that he needs to be addressed and all he's doing is preventing jobs from being created in Oxford County,” Martin said.
Scarborough Downs is considering a move to Biddeford to create a racino there under the 2004 law that allowed Hollywood Slots. Biddeford voters approved the presence of a racino in November.
However, under the 2004 law, Scarborough Downs has long missed a deadline to apply for the racino site. Another provision of that law says a racetrack can move only 5 miles to create a racino. Scarborough Downs seeks to move to a site 11 miles away.
If the Oxford casino site is approved, the 100-mile provision would block Biddeford Downs because its proposed location is about a 50-mile drive from the Black Bear site. Last month, supporters of the proposed Biddeford Downs submitted 76,000 signatures petitioning to change the provisions preventing Biddeford Downs from becoming a reality.
In a letter MacColl wrote to Deputy Attorney General William R. Stokes, MacColl argued that courts have set precedent that, unless another measurement is specified, distance requirements are assumed to be measured as a radius. Otherwise, the construction or demolition of a bridge could change the distance drastically.
Daniel Walker, a lawyer for Black Bear Entertainment, argued in favor of a road-mile measurement. He said the original initiative specifically noted that a casino couldn't move more than a 5-mile radius from its original location in order to have a slot machine facility nearby. There was no specification on how to measure the 100 miles from the slot machine facility to other facilities in the state.
“If they didn't say radial miles, they must have meant road miles,” Walker said.
He said the examples MacColl cited on radial distance being assumed were all from other states and were mostly measured in feet, not miles.
John Morris, commissioner of the Maine Department of Public Safety, told the board that after studying the law, “The governor and governor's office interpret mileage in this law to mean road miles.”
“It's really a common-sense argument,” Martin said after the meeting. “The common measurement is street miles. People don't own airplanes.”
Martin criticized MacColl's claim that the racetrack might move to Oxford County.
“Is he saying to the Biddeford people that, at the moment, he's ready to abandon the Biddeford referendum and try to find a site in Oxford County to apply up there?” Martin asked. “Is he applying for two now?”
“We're committed to this project in Biddeford,” MacColl said Wednesday. “But we know that we have to change state law for that to work.”
“If we can't change that law, we would file an application for the Oxford County casino.”
MacColl said Scarborough Downs owner Sharon Terry has explored an Oxford casino as a possibility, “If that's the only way to save Maine harness racing, then she will do her best to make that happen.”
He said he was willing to cooperate with Black Bear Entertainment to lobby for changes that would allow both Biddeford Downs and Black Bear Entertainment to operate. MacColl said he contacted Black Bear after the election, inviting them to cooperate in changing the distance law. He said he never heard back from Black Bear.
The Gambling Control Board voted not to decide on the issue until more research has been conducted. They agreed to meet again at 9 a.m. Friday at the Maine Department of Public Safety offices in Augusta to determine which measure of mileage is correct.
If they decide Black Bear Entertainment is applying for an ineligible site, approval could be delayed until the Legislature changes the 100-mile rule or until Black Bear chooses another site.
The citizen referendum passed in November included several amendments to Maine gambling law, including adding the term “casino” to previous references to slot machine facilities. The provision barring other facilities within 100 miles wasn't changed to specify how miles would be measured. Walker said that's because road miles were assumed by the bill's language.