OXFORD — Long after the election, the proposed Oxford casino still faces challenges from anti-casino groups and competing gaming interests alike.

The two groups, each of which could potentially stop the Oxford casino, have taken different positions on why it shouldn’t be built.

On one hand, CasinosNo! director Dennis Bailey has stated the referendum allowing a casino in Oxford is unconstitutional because only Black Bear Entertainment could benefit from it, and a public law written to benefit only one violates the Maine’s Constitution.

CasinosNo! hasn’t yet taken action against Black Bear, but Bailey said they “definitely have not ruled out a challenge on the constitutionality question.”

On the other side, Scarborough Downs attorney Edward MacColl, has challenged the proposed location in Pigeon Hill in Oxford, calling it illegal according to Maine gambling law, which states casinos must be 100 miles apart. MacColl argues that Black Bear’s interpretation, measuring the distance by road miles, is incorrect, and that the casino is 94 miles away.

Maine’s Gambling Control Board will take MacColl’s argument into consideration once it receives Black Bear’s application.

At the board’s Feb. 18 meeting, acting board Chairwoman Cushing Samp said Black Bear’s amendment to Maine gambling law, as approved by voters, doesn’t explicitly describe the distance as road miles. However, she said, the board’s duty isn’t to “thwart the will of the voters.”

According to Samp, an interpretation of the referendum that wouldn’t allow for a casino anywhere would constitute “absurdity.”

If the board finds that a straight-line interpretation of the mileage restriction would make an Oxford casino impossible, they would be forced to interpret it as road mileage.

Black Bear says a straight-line measurement would make a casino impossible. According to Black Bear attorney Daniel Walker, upon hearing about the potential interpretation he had a map made with the 100-mile radius line. With the referendum’s other restrictions, he said, “It was very clear that there’s not a place in Oxford County that can be within the 100-mile radius.”

According to the referendum, the Oxford casino must be no more than 30 miles from a Level I or Level II trauma center, 15 miles from the main office of a county sheriff, 25 miles from the main office of a state police field troop, 30 miles from an interchange of the interstate highway system, 10 miles from a fire station, 10 miles from a facility at which harness racing was conducted in 2009 and a half-mile from a state highway.

MacColl said Walker is wrong, and that the referendum was intentionally written to block challenges like that of CasinosNo!, which say the law is unconstitutional.

He said the language allows for a Fryeburg casino location, within 10 miles of the Fryeburg Fair, which ran horse races in 2009. “That was going to be Black Bear’s argument if they were challenged in court on the proposition that this was a public law for a private purpose,” MacColl told the Gambling Control Board. “That’s why they didn’t write a monopoly law, ‘Black Bear gets a casino.’”

Black Bear Entertainment spokesman Peter Martin said he doesn’t believe the referendum allows for a Fryeburg casino. He said that while a location in or near Fryeburg could meet the racetrack provision, it’s too far away from the interstate, a county sheriff’s office, and other requirements.

“We would be the only site eligible,” Martin said Thursday.

MacColl threw in another wrench. Scarborough Downs’ racetrack license is portable, he said, meaning that if they move the track, the new location is, for all purposes, the same track.

On Thursday, he quoted a state statute (8 MRSA section 275-A) that states, “If a racetrack that qualifies as a commercial track under this paragraph ceases operation, a separate racetrack operated by the owner or operator of the racetrack that ceased operation qualifies as a commercial track, and for all purposes is considered the same commercial track as the track that ceased operation.”

According to MacColl, if the referendum for Biddeford Downs loses in November and Black Bear doesn’t build a casino, the above definition means Scarborough Downs could move the racetrack to Oxford County and still qualify as a track that conducted horse racing in 2009.

Martin said the referendum’s wording clearly states the track must have been operating in Oxford County in 2009.

Casino opponent Dennis Bailey defended Martin on this point.

“There is no way under the Oxford law that Scarborough Downs could qualify for a license to operate a casino in Oxford County, and it has nothing to do with the miles between Oxford and Hollywood Slots. The Oxford casino law was written specifically for Black Bear Entertainment and the owners of the Oxford Fair racetrack.”

Bailey said he has consulted with Lewiston attorney George Isaacson, who Bailey said, “concluded that it expressly eliminates all possibilities except the owners of the Oxford racetrack from being eligible for a casino license in Oxford County.”

Martin doesn’t disagree that the Oxford Fairgrounds is the only racetrack that could be used under the referendum’s wording. However, he said he doubts Bailey has grounds to stop the referendum.

“If that’s his belief then I guess that he will decide what he’s going to do with it,” Martin said.

“We’re comfortable that the law as written is not unconstitutional,” he said.

After the Gambling Control Board meeting, Martin said he believes a majority of the board agrees with a road miles interpretation.

Black Bear Entertainment is still waiting to receive an application for a casino operator’s license. He said the state is writing up an application, as there is no precedent for approving a full casino in Maine.

“We’re not going to be deterred by rumor and speculation,” Martin said Thursday. “We’re moving forward.”

treaves@sunjournal.com

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