On May 30, 2013, members of Goodwin Procter’s Gaming, Gambling & Sweepstakes Practice attended another public meeting of the Massachusetts Gaming Commission.
Use of Local Small Businesses
- The Commission expressed its hope that applicants would use local vendors (e.g., landscapers, limousine services, linen services, etc.) but added that applicants should also consider connecting with the local small business sectors. The Commission heard presentations from Helena Fruscio, Creative Economy Director from the Executive Office of Economic Development, Mary Jordan, Director of the Division of Agricultural Markets, and Catherine de Ronde of the Massachusetts Department of Agriculture.
- Ms. Fruscio identified a number of ways in which she hopes applicants will connect with and use local creative small businesses to enhance their application. As examples, Ms. Fruscio pointed to the chance for applicants to connect with local architects and designers (both exterior and interior), local artists for public arts projects, and technology innovators for gaming technology (e.g., the media lab at MIT and the cluster of videogame innovators based in the Commonwealth). Chairman Crosby responded that Ms. Fruscio’s presentation fit into two parts of the Commission’s evaluation criteria: (1) the goal of economic development and supporting small businesses and interacting with existing amenities and tourism and (2) the aspirational goals of creating something unique and special in the architecture of the gaming industry in Massachusetts. Commissioner Stebbins added that another evaluation criterion is integration of public art in building and site designs.
- Ms. Jordan and Ms. Deronde identified a number of ways in which applicants can connect with the local agriculture industry. They highlighted that Massachusetts is ranked second in the nation for direct sales of agriculture to consumers (both individuals and restaurants) and that many local restaurants are already proudly displaying the fact that they only use local products and that they are supporting the local farmers.
- Executive Director Rick Day reported that they have finished the interviews for candidates for the Director of Licensing and that they are continuing to move forward on that front. He added that they are also focusing on strengthening the administrative functions and starting to recruit personnel in anticipation of expansion.
- RFPs – Commissioner Stebbins reported that the financial services RFP has already gone out, that the building and site design RFP is close to release, and that the economic development RFP still remains in draft form.
- Region C – Executive Director Rick Day reported that he expects that requests for applications for Region C will be published next week. In response to some pushback from potential applicants, the Commission approved moving the deadline for RFA-1 applications in Region C out a month to September 30, 2013 and also moving the award date for a license in Region C out a month to October 30, 2014 [approximately seven months behind Regions A and B].
- Everett Voter Notification –Ombudsman Ziemba advised that he and the legal department have approved the Everett Voter Notification, finding it to be in conformity with both the language and mission of the regulations. Thus, he recommended it to the Commission. Commissioner McHugh identified one clarification that he thought should be made and moved that the Notification be amended to clarify that the application process Phase 2 would begin following the election by the community and the Commission’s decision on suitability. The Commission accepted this amendment and approved the Notification.
- Regional Planning Agency (“RPA”) Contracts – Mr. Ziemba informed the Commission that the RPAs wanted a direct relationship with the Commission to make certain that they were working directly for the Commission and not for an applicant or a host community. Thus, the grant agreement and the letter of authorization were amended. Additionally, the RPAs pointed out that as government entities, they are not able “to indemnify and defend” the Commission, as specified in the indemnification language [section 7] of the grant agreement. Commissioner McHugh moved for approval of the grant forms with the removal of the words “indemnify” and “defend” and the possible addition of language, if necessary after further review of the agreements, specifically stating that the RPAs are not agents of the Commission. The Commission approved the agreements.
- Gaming Policy Advisory Committee Chair – Mr. Ziemba introduced Robert Hubbard, who has been appointed by the Governor as Chair of the Gaming Policy Advisory Committee. Mr. Hubbard recently retired as Director of Community Development and Planning for the City of Gardner and as the Executive Director of the Gardner Redevelopment Authority.
- Mr. Hubbard advised that the eighth member of the advisory committee had been appointed and thus they now have the possibility of a quorum and can move forward with their responsibilities. Mr. Hubbard said the other members of the Committee are: Representative Ann-Margaret Ferrante as the House Speaker’s member; Representative Angelo D’Emilia as the other House member; Hilary Jacobs from the Department of Public Health; Senator Jennifer Flanagan and Senator Michael Russ as the Senate members; Brian Lang as a representative of labor; and Chairman Crosby. A Tribe representative member position is still outstanding. Additionally, there are six seats that are reserved: one for each of the licensees from the three regions and one for each of the host communities of the three regions.
- Chairman Crosby pointed out that the Committee is purely advisory and recommended that the Committee consider inviting unofficial members [official members are specified by law] to serve as informal advisors. As an example, Chairman Crosby suggested a law enforcement representative. Chairman Crosby also added that while the law only requires the Committee to meet once, he hopes that the Committee will play a more substantive role and will be active in communicating feedback from the field to the Commission.
Racing Division Report
- The Commission approved a request from Suffolk Downs to cancel three days of racing in June (the 11th, 18th, and 25th) and to move those days of racing to November (the 25th, 26th, and 27th).
- Application Form – Catherine Blue and Todd Grossman communicated to the Commission various revisions and amendments to the application form; most of the changes were to conform the language in the application to that of the regulations. A few changes, however, were not merely based on the language of the regulations. A few of the more noteworthy changes include:
- A box will be added to each question on the application in which applicants will be required to provide a brief summary of their answer for any answer which they address by way of an attachment to the application. This would allow the application to be a wholly-public document and will facilitate review by the public. Mr. Grossman added that some attachments to the application will be considered confidential while others will be made public; he did not specify any guidance as to what will be considered confidential or public but indicated that he anticipated that applicants would make those determinations and designate documents accordingly.
- A question will be added so that applicants need only submit supplements to the references required under the regulations which they submitted for the RFA-1 process in order to bring them up to date, as opposed to re-filing all of their references.
- A question will be added requiring a chart of all permits which applicants will require and the status of any such applications. This chart would also require applicants to submit documentation relative to the Massachusetts Environmental Policy Act, including Environmental Impact Reports and Environmental Notification Forms.
- An attestation that the applicant has read and understood the regulations, the law, and the instruction sections of the application and agrees to all of the obligations, terms and conditions the law imposes upon a successful applicant. Commissioner McHugh recommended that the language be modified slightly just to focus on the obligations, terms, and conditions of the law (as opposed to the regulations) in the event that the regulations conflict with the law in any way.
- Currently, applicants are required to submit two hard copies and one CD of the application. Mr. Grossman and Ms. Blue reported that they are working on establishing a server to permit applicants to upload an electronic copy in lieu of the CD copy. Several Commissioners acknowledged that this would be beneficial but stressed that any such change could only occur if all security issues had been worked out beforehand.
- Introductory Presentation by Applicants – currently this presentation will be two weeks after the application is submitted and applicants will have 90 minutes to present, during which no questions will be asked. The Commissioners suggested that it would be wise to amend the no questions policy to allow for clarification questions.
- Evaluation Criteria – Chairman Crosby raised some issues about clarifying some of the evaluation criteria and said that he would work on amending/sharpening the evaluation criteria. Specifically, he suggested focusing the language in the following areas:
- iGaming business – while currently not legal in Massachusetts, it may be important for the Commission to know the applicant’s plans with respect to iGaming in the event that iGaming does become legal in the Commonwealth.
- Marketing/competing with out-of-state casinos – Out-of-state casinos already have established relationships with Massachusetts citizens and have databases of information on Massachusetts citizens, giving them a tremendous advantage in terms of targeted marketing. The Commission and the Commonwealth obviously want to repatriate those Massachusetts dollars being spent at out-of-state casinos. The Commission might want to know more about how the applicants plan to address the out-of-state casinos’ efforts to maintain their business with Massachusetts citizens.
- Strategy for attracting patrons – the casinos will be marketing their specific city or region and the Commission might want to know more about the applicants’ marketing strategy.
- The Commission hopes to approve the application language at the next meeting.
The next meeting will be on Thursday, June 13 at 9:30 a.m., at the Division of Insurance 1st Floor, Meeting Room E, 1000 Washington Street, Boston, Mass.
Those interested in learning more about Goodwin Procter’s gaming and gambling expertise and practice, and/or the issues outlined above, should contact the author: E. Abim Thomas, or David Apfel or Bob Crawford, co-chairs of Goodwin Procter’s Gaming, Gambling & Sweepstakes Practice.