The decision on whether to issue a Pope County casino license is once again with the Arkansas Racing Commission (ARC), but commissioners are not expected to decide on reopening an application period before first reviewing proposed rules to govern a new application process.
Kicking off an initial meeting on Wednesday (January 24) regarding the licensing process, Doralee Chandler, deputy state attorney general for state agencies, reminded commissioners that a January 11 Arkansas Supreme Court’s decision not to rehear an appeal on the Pope County casino case was the reason why the matter was once again in the hands of the state's casino authority.
“This is why we have this meeting … to try and figure out what we want to move forward,” Chandler said. “The ruling, not to simplify it, voided … the license that you issued. So, there are no applications to consider at this point in time.”
Voters approved Amendment 100 to the Arkansas State Constitution on November 5, 2018 to allow four casinos in the state. Currently, Saracen Casino is operational in Pine Bluff, while casino gaming is also offered at Oaklawn Racing & Gaming in Hot Springs and Southland Gaming & Racing in West Memphis.
The state's Supreme Court in November upheld a lower court ruling that the ARC improperly awarded the Pope County license to Legends Resort and Casino LLC and Cherokee Nation Businesses in 2021.
Pulaski County Circuit Judge Tim Fox ruled that the license could not be issued to two separate entities, even if they were related. Fox also sided with Gulfside Casino Partnership, a rival applicant for the license, and agreed that Legends was not qualified to hold a casino license.
Chandler told commissioners that she included recommended regulation changes and letters from attorneys for both Cherokee and Gulfside in briefing materials.
“Each entity has a different view of how to move forward but there does appear to be some consensus of agreement that there needs to be a new open application period,” she said.
“The question for you all today is the biggest consideration, is how do you get there,” Chandler said. “When the rules were drafted in 2019, there was no consideration of the position you are in.”
She added that the current regulations state that the ARC shall issue a license for Pope County.
“The recommendation is to [approve] the rules to allow for a path forward for this commission to open up a new application period and to eliminate ... legal challenges,” she said.
Chandler said the attorney general’s office recommends amendments to the gaming regulations, including those governing the non-franchise application process for “a notice of open application is published as a legal notice to clarify what is being published for the general public to view.”
“It is also our recommendation to remove [from the rule] ‘except for good cause,’” Chandler said. “This is one of the laws that is inviting litigation. It is not necessary.”
State attorneys have also proposed to add language that would allow the commission to contemplate a new application period if no license was issued, as well as an amendment that addresses what happens if a license is not renewed, revoked, surrendered, or voided by a court.
“This is something the current rules do not contemplate,” Chandler said. “This allows you to open up a new application period in compliance with the rules.”
The commission did not release the proposed amendments on Wednesday. Chandler was appointed to advise the commission on the Pope County license after ARC attorney Byron Freeland had a potential conflict which led him to recuse himself over the decision on a fourth casino.
“There has been enough litigation. I can’t keep track of the courts,” said ARC chairman Alex Lieblong.
If approved by the commission at a forthcoming meeting scheduled for January 30, the rules promulgation process will take 60 to 90 days. The rules would then have to be approved by the Arkansas Legislative Council, followed by the commission opening a 30-day new application process.
Then each application would be scored before the ARC would choose a new Pope County casino licensee.