Attorney General: Edward D. Kratovil, Division of Special Revenue, 1993-025 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

August 30, 1993

Edward D. Kratovil
Chairman, Gaming Policy Board
Division of Special Revenue
555 Russell Road
Newington, CT 06111

Dear Mr. Kratovil:

You seek our guidance concerning several interrelated issues arising from recent legislation which authorizes the conversion of the Bridgeport Jai Alai fronton to a dog track. Your questions are essentially three in number: (1) must Bridgeport Jai Alai surrender its Jai Alai license before construction can begin on the actual conversion to a dog track; (2) must the Board conduct a hearing before it can award playing dates to the pari-mutuel facilities; and (3) if such a hearing is required, how are conflicts resolved, when does Bridgeport Jai Alai cease to exist as a fronton, and when may the Board waive a regulation?

In our opinion, the answers to the first two questions are in the negative. Thus, the third question is rendered moot.

Your request for opinion indicates that since 1977, playing dates have been divided equally each year between the Milford Jai Alai fronton and the Bridgeport Jai Alai fronton. That is, the Gaming Policy Board has permitted the operation of the Milford fronton from December through May, and upon its closure, the Bridgeport facility has operated from June through November. Because of the close proximity of the two facilities, the Board had determined that "dividing the season equally [would] be both equitable and economical."1

In 1991, the General Assembly enacted Public Act 91-309 ( 5) and 91-366 ( 3) which authorized the conversion of the Bridgeport facility from a Jai Alai fronton to a dog track. This authority was further recognized by the Legislature in Public Act 92-17 ( 32). You inform us that Bridgeport Jai Alai anticipates that this conversion construction will commence in the fall of 1993. By November of 1993, the Gaming Policy Board, pursuant to Conn. Gen. Stat.  12-557e(3), must once again award playing dates to the respective pari-mutuel facilities. Bridgeport Jai Alai maintains that it is entitled to continue its operation as a Jai Alai facility during construction, while Milford Jai Alai fronton insists that Bridgeport Jai Alai should not be permitted to continue operation as a fronton with the consequence that Milford Jai Alai would be entitled to operate on a year-round basis.

The foregoing controversy has resulted in the questions posed by the Board which we address seriatim:

A. When must Bridgeport Jai Alai surrender its Jai Alai license?

None of the authorizing Public Acts2 specifically address this issue. Public Act 91-309,  5(c)(1) does, however, instruct that the Gaming Policy Board may "issue one additional license ... to conduct dog racing ... upon the surrender of the license to conduct jai alai events ...." Hence, the statutory scheme ensures that the dog racing license will issue only subsequent to the surrender of the Jai Alai license. This statute mandates only that the "conduct" of dog racing is conditional upon surrender of the jai alai license. Thus, there is no statutory mandate that the Jai Alai license be surrendered prior to, or during, the reconstruction phase.3

B. Is the award of playing dates a contested case matter which

necessitates the conduct of a formal hearing?

Conn. Gen. Stat.  12-557e provides that the Gaming Policy Board is "responsible for ... (3) setting ... jai alai meeting dates ...." It is further directed to "..., as far as practicable, avoid conflicts in the dates assigned for ... the exhibition of the game of jai alai ...." Conn. Gen. Stat.  12-574(m). Significantly, this same section provides that the decision of the Board regarding "the meeting dates assigned shall be final ...."

These statutory provisions have been the subject of previous litigation and a short history is appropriate.

In 1983, the Gaming Policy Board assigned Jai Alai playing dates for the three frontons for calendar year 1984. While each fronton was awarded the same number of performances (288), the Bridgeport and Milford frontons were to operate during six calendar months, while the Hartford fronton was permitted to operate during ten calendar months. The awarded dates resulted in actual conflicting performances at the Bridgeport and Hartford frontons on 92 dates. Bridgeport Jai Alai, alleging aggrievement, appealed this decision to the Superior Court. Our office, on behalf of the Board, argued that the award of dates was not an appealable decision under the statutes. The Superior Court disagreed with our jurisdictional claim but determined that the Board acted properly within its statutory mandate to avoid conflicts "as far as practicable." Bridgeport Jai Alai appealed this decision to the Appellate Court and this office, on behalf of the Board, cross-appealed on the jurisdictional issue. By the time the case was decided in the Appellate Court (February 12, 1985), the 1984 season had concluded and all the playing dates awarded had obviously expired. The court found the case to be moot and dismissed the case without reaching any issues. Bridgeport Jai Alai, Inc. v. Gaming Policy Board, et al., 3 Conn. App. 254 (1985).

This prior litigation is significant in two respects: First, with all due respect for the prior decision of the Superior Court, this office continues to maintain that the award of playing dates is not a matter which is properly reviewable by the court in the guise of an administrative appeal. Secondly, as the Superior Court observed, under the "as far as practicable" standard of the statute, the mere existence of conflict does not render an award voidable since the Board must determine the best method available for allocating playing dates.

In determining whether the formal hearing process must be utilized by the Gaming Policy Board in the discharge of its duty to award playing dates, we are guided by the principles enunciated in the recent Connecticut Supreme Court decision, Lewis v. Gaming Policy Board, et al., 224 Conn. 693, 620 A.2d 780 (1993). According to Lewis for a decision of an administrative agency to be considered a "contested case" and hence appealable to the Superior Court, a three-fold test must be satisfied: (1) does the plaintiff have a right or privilege at issue; (2) does a statute require that the agency determine the right or privilege; and (3) must such a right be determined after a hearing. See also Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792 (1993).

The instant circumstances satisfy none of these criteria. While the Board must undoubtedly award playing dates under the statute, no licensee can demonstrate a right to be awarded specific dates. Put another way, while a licensee could assert a right to a minimum number of playing dates,4 no statute or regulation vests a licensee with a right to specific dates in any calendar year. Moreover, while the statute authorizes the Board to award playing dates, the statute does not impose upon the agency a duty to determine if a licensee should be awarded the specific dates requested. Perhaps most significantly, the statutes do not require that the Board conduct a hearing when it "awards" these dates. On the contrary, Conn. Gen. Stat.  12-574(m) specifies that the decision regarding the award of dates shall be "final". This same statutory section explicitly imposes upon the agency the duty to conduct a hearing with reference to a decision regarding the issuance or suspension/revocation of a license but imposes no such duty with reference to the assignment of dates.

Hence, we conclude, that the award of playing dates is a matter which the Board may properly address in the context of a "meeting" and the Board need not convene the more formal hearing procedures to make that determination.

The third question which you pose presumes that the Board must proceed to determine playing dates as part of an administrative hearing. In view of our response to question two, i.e., that the "meeting" format is appropriate when dealing with the award of playing dates, it is unnecessary to address the issues raised therein.

However, we would reemphasize that the Board is statutorily required to avoid conflicts in the playing dates awarded to the different frontons "as far as practicable." We would further observe that this language confers a reasonable discretion upon the Board to decide how to strike the proper balance. In this regard, the words of the Court, when reviewing the authority of the Liquor Control Commission to determine the number of liquor licenses which could be issued in a particular location, are appropriate in these circumstances:

We cannot say, as a matter of law, that the commission abused the wide discretion vested in it in arriving at such a conclusion. "It was contemplated by the legislature that the commission might draw the line somewhere, and we see nothing arbitrary or illegal in the ruling of the commission, supported as it is by the judgment of the trial court, that this was a point at which it might be drawn." Biz v. Liquor Control Commission, supra, 562.

Viola v. Liquor Control Commission, 158 Conn. 359, 363, 364, 260 A.2d 585, 587 (1969).

Analogously, the Board, in the exercise of its developed expertise in the area of legalized gaming, is entrusted to consider when, and if, conflicts in the dates awarded to the pari-mutuel facilities are permissible. It is entitled to "draw the line" somewhere. The statutes provide that such a judgment is not to be second-guessed by the courts in an administrative appeal. See Lewis v. Gaming Policy Board, et al., supra.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Richard M. Sheridan
Assistant Attorney General

RB/RMS/td


1 We note that more recently, the Hartford Jai Alai fronton has been permitted year round operation.

2 Public Act 91-309,  5; Public Act 91-366; Public Act 92-17,  32.

3 We do not address the issue of whether the exhibition of Jai Alai for gaming purposes during construction is consistent with the public health, safety or convenience, since this is a determination to be made by the Division of Special Revenue/Gaming Policy Board. See Conn. Gen. Stat.  12-562(a) and Regulations ee 12-574-D8(b) and (d).

4 See Regulations, Operation of Jai Alai,  12-574-D6a(a), where a licensee is entitled to "not less than one hundred (100) days in a year...."


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