By Kellie Patrick Gates
The Pennsylvania Gaming Control Board Wednesday denied Philadelphia Entertainment and Development Partners' request for more time to file site plans and will on March 3 consider revoking the casino's license.
Foxwoods was supposed to have the site plans to the board on Dec. 1 as one of the conditions of a two-year extension to get the casino open. Foxwoods asked the board to allow them to have until March 1 to produce that information, the date at which financing reports are also due.
Foxwoods attorney Fred Jacoby, who had pleaded with the board for patience, had no comment on the ruling. "I have to think it through," he said on his way out of the building.
Despite requests from deputy enforcement council Dale Miller to name the investor, Jacoby would not, saying confidentiality was promised. He said the investor has considerable casino experience, though, and would create a 200,000-square-foot facility with about 2,700 slots and 80 to 100 tables.
Jacoby thanked the board for the patience with which it has already treated Foxwoods. He acknowledged that critics were calling for the board to quash the casino, but told the board if they could just bear with his client a little longer, all the time would be worthwhile.
“The investor we are working with has a great vision, and it's not just a slots parlor,” he said. “We're very excited. We never contemplated the nature of the project we are working on today. We just ask you to work with us a little longer.”
The board's own enforcement arm, the Bureau of Investigation and Enforcement, had already recommended in filed documents that Foxwoods' request for more time to file the site plans be denied. At Wednesday's hearing, Chief Enforcement Council Cyrus Petri and Deputy Enforcement Council Dale Miller repeatedly criticized Foxwoods for a lack of progress.
“Based on what you have testified today, it seems that basically we can come to several conclusions,” Pitre said. “That there's no financing. That you're talking to someone in the industry about investing. That we can contemplate a change of ownership based on the fact that this person will have significant say in what is done and how it's done.” Pitre said that the board has already licensed Foxwoods and endorsed its location and the type of facility it had already proposed. “Basically, you're just telling this board today that all of that is up in the air, and we don't know for sure what's going to be coming down the pike,” he said.
Jacoby grew frustrated, and said that he could not understand how the BIE representatives could say no progress has been made, when an agreement with a new investor was near, a builder had been brought into discussion, and Foxwoods and the city had just recently met with the special master appointed by the State Supreme Court. He also pointed out that Foxwoods had met the other monthly progress report deadlines imposed by the PGCB as a condition of the license extension, and that these documents have outlined Foxwoods' forward movement.
Pitre turned over all those previous filings to the board as evidence. (A side note: Attorneys representing two community activist organizations have been trying to make these documents public. Part of the reasoning the PGCB gave for not turning them over is that they were not filed with the board itself, but with the BIE. The board also said the documents were private because they contain information deemed private under state gaming law, and because they are part of a non-criminal investigation. The state open records office recently upheld the PGCB's decision. When the documents were submitted to the board yesterday, Jacoby quickly asked the board to keep them out of the public record. Pitre agreed that was appropriate.)
Jacoby asked the board to consider delaying a decision until its February meeting, because by then, he would be able to be more specific.
Under pressure from the Board, Jacoby revealed that Keating Building Corp., would be constructing the casino. Board members said they had faith in Keating, who is constructing SugarHouse and also built Rivers Casino in Pittsburgh. Some said they wanted Keating representatives to accompany Foxwoods the next time it was before the board.
The news about Keating seemed to be the only thing that went into the plus column for Foxwoods Wednesday. The Board members who spoke all expressed frustration with what their office of enforcement council called a lack of progress. Several also said they were simply not confident that granting the extension would do any good.
Kenneth Trujillo, who was an investor with Riverwalk Casino, which competed unsuccessfully for a license when Foxwoods was approved, said Foxwoods could have presented a "Plan A" by the deadline while noting a "Plan B" might be necessary under some circumstances. (Trujillo talked about his past casino interest early in the proceeding. He said he didn't think it presented any conflict, and he didn't plan to recuse himself. He asked the Foxwoods' team how they felt about him taking part, and they said it was fine with them.)
Speaking of Plan B, Jacoby said if the financing deal were to fall through, Foxwoods would move forward with a slots-only casino in a temporary facility.
If the board decides it no longer wants to license Foxwoods, it will take some time to issue a new license. If the board is not satisfied on March 3, Pitre said his office would then file a formal complaint recommending the board revoke the license. There would be a hearing, and the result could be appealed, Pitre said.
If Foxwoods loses its license, the board will have to devise a new procedure through which to reissue the license to another entity. If Foxwoods gets enough done to please the board, it will need to continue filing monthly progress reports.
With a new partner and a new design, at least to some degree, in the works, Foxwoods could end up a bit different than the board imagined when it issued the original license. But Coy and Fajt said they did not think this would merit the re-opening of the license process.
They noted there have been changes at other facilities without reopening the process. When asked what level of changes would require opening the license, Fajt said he wouldn't speculate.
One failed applicant, Donald Trump's group, has already filed lawsuits trying to pry the application process back open.
Jacoby said he anticipates his client will be asking the board to approve changes to the original design based on the new investor's ideas. Under a provision in the new table games law, that would require a public hearing in Philadelphia.
That same law includes language that would allow Foxwoods to seek a "bigger-picture" extension. They can petition the board to give them until Dec. 2012 to open.
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