Filing by casino foes claims rules flouted

LITTLE ROCK — An anticasino group asked a circuit judge to bar the state Racing Commission from issuing a license for a casino in Pope County, saying as justification the commission failed to follow its own rules when requesting applications.

Both the initial application window and a since-abandoned second window should be voided because the commission failed to assign a points value to each merit criterion in the scoring of an application and also didn’t list the points in any of its notices soliciting applications for either the Pope County or Jefferson County casino licenses, said Jerry Malone, attorney for Citizens for a Better Pope County, in a request filed late Monday in Pulaski County Circuit Court.

“By failing to publish the required ‘worth a number of points’ information in the Commission’s Notice of First Application Period, or in any subsequent notices of application periods, the Commission failed to comply with the applicable Casino Gaming Rules, thereby violating the Casino Gaming Rules, the Administrative Procedures Act, [Constitutional] Amendment 100, and other applicable laws and legal requirements,” Malone said in the filing.

Specifically, the group said the commission violated Casino Gaming Rule 2.13.9, which says in part: “Each merit criterion will be worth a number of points announced by the commission in the notice of open application period.”

When asked why the commission didn’t allot points on the criteria, commission spokesman Scott Hardin said the matter would be discussed at an upcoming meeting.

“If schedules allow, we anticipate this may take place next week,” Hardin said.

When asked if a pointsbased scoring system existed and how the contracted evaluator was basing his assessment, Hardin again said the matters would be covered at the next commission meeting.

Citizens for a Better Pope County sued the Racing Commission previously, on Dec. 27, leading to a temporary restraining order from Pulaski County Circuit Judge Wendell Griffen barring the commission from issuing a casino license based on applications received during a second window that opened in August.

Griffen said the commission violated its own rules when it opened the second window. The commission has since “abandoned” the second window and, earlier this month, voted to accept an application from Cherokee Nation Businesses for the Pope County license based on another gambling rule on a “good cause” basis. That application and one from Gulfside Casino Partnership will be evaluated.

At the close of the first application window May 30, five applicants tossed their hats in the ring for the Pope County casino license and one applicant, the Quapaw Nation, sought the Jefferson County license.

While the commission awarded the Jefferson County license to the Quapaws, it rejected all five of the Pope County applicants because none contained the endorsement of local officials in office at the time of the application.

Constitutional Amendment 100 — passed by state voters in November 2018 — allows a new casino each in Pope and Jefferson counties and allowed the expansion of gambling at the racetracks in Hot Springs and West Memphis.

Citizens for a Better Pope County, in its latest court filing, said the commission has never modified its rules in accordance with the Arkansas Administrative Procedure Act in order to bypass the rule requiring points be assigned and announced at the opening of the application windows.

The rules are applicable to the “award of the one and only available casino license for each Pope County and Jefferson County” licenses.

The Quapaw Nation’s Saracen Casino Resort in Pine Bluff is under construction and — before the temporary closing of casinos because of the coronavirus pandemic — was operating a casino annex.

John Berrey, chairman of Saracen Development, said he is proud the awarding of a casino license in Jefferson County was done without controversy.

“We’re confident that whatever disagreements occur over the license in Pope County will not spill over in to the already settled issue of a Jefferson County license,” Berrey said. “Unlike in Pope County, we were the sole applicant for the license we were awarded, and the Jefferson County scenario was and is very different from that in Pope.”

According to Rule 2.13.9.b, the criteria that will be assigned a points value include: experience conducting casino gambling, timeline for opening a casino, proof of financial stability and access to financial resources and detailed summary of proposed casino.

Rule 2.13.9 requires a review panel be comprised of commission members to evaluate the applications and award points for each merit criterion. The points will then be totaled and each application will be ranked from the highest to the lowest.

“The Racing Commission has failed to comply with, at a minimum, the requirements of Rule 2.13,” Malone of Citizens for a Better Pope County said in the filing, adding that “any actions taken on applications submitted to or otherwise accepted by it based on any and all such non-compliant notices are unlawful, void, illegal and ultra vires.” The latter is a Latin phrase referring to acting outside one’s authority.