Friday, October 31, 2014
Casinos are projected to siphon nearly an additional $1 billion dollars out of the Massachusetts economy every year. That’s 1 billion dollars that normally is spent on local businesses, instead spent on casinos whose owners live out of town.
Now ask yourself these two questions:
1. Where is that $1 billion dollars a year being spent now?
2. What happens to those businesses and their employees, once it no longer is?
With these kind of losses to already established local businesses, they will start laying off employees, or closing down altogether. Are you ready to lose your job? Are you ready to see a loved one lose their job? Are you ready to watch your favorite local businesses close up shop?
This is the amount of additional money your neighbors will stop spending at nearby businesses, and start spending at the casinos. All calculations are based upon the Massachusetts Gaming Commission's own estimates.
This is how much money the businesses in YOUR city or town will lose to the casinos every year.
This is how casinos hurt existing businesses and their employees:
Agawam: $ 3,873,051
Amherst: $ 5,071,212
Boston: $ 88,476,702
Chicopee: $ 7,531,189
Easthampton: $ 2,152,573
Everett: $ 5,953,309
Greenfield: $ 2,567,439
Hadley: $ 703,981
Holyoke: $ 5,431,369
Long Meadow $ 2,149,667
Worcester: $ 24,899,099
Cambridge: $ 15,025,365
Lowell: $ 15,219,251
Northampton: $ 3,828,182
Revere: $ 7,414,437
Palmer: $ 1,653,380
Pelham: $ 177,135
Pittsfield: $ 6,465,620
Falmouth: $ 4,830,329
Revere: $ 7,414,437
South Hadley: $ 2,348,481
Springfield: $ 20,845,669
West Springfield: $ 3,866,650
Worcester $ 24,899,099
Hold ’Em Or Fold ’Em: What’s Next For The Massachusetts Gaming Industry If Voters Repeal The Gaming Law?
The Supreme Judicial Court of Massachusetts recently cleared the way for gaming opponents to appeal directly to Massachusetts voters by allowing the measure to repeal the Massachusetts gaming law to be placed on the November 2014 ballot.[i] The initiative, known as Question 3, seeks to repeal the expanded gaming law by prohibiting the Massachusetts Gaming Commission from issuing any additional gaming or slots parlor licenses and prohibiting any casino or slots parlor that already has received a license from operating.
Both sides of the issue are committed to achieving victory with the voters on November 4, 2014.
Obviously, the companies that already have succeeded in securing licenses under the 2011 gaming law—Penn National Gaming, MGM Resorts and Wynn—are keen on protecting their investment, which already has cost them a great deal of money: license fees alone cost tens of millions of dollars, not including application fees and other expenses incurred in contemplation of opening a casino or slots parlor (e.g., site permits, professional consulting services).
So what happens if the repeal effort succeeds, however unlikely its chances may seem now? In particular, what will that mean for the companies that planned to open casino and slot gaming establishments in Massachusetts and the various counterparties (including the Commonwealth and the communities that were supposed to host them)? What will happen to the money that the winning licensees have already paid or still are due to pay to these parties, with the expectation of operating facilities that the voters may very well decide to outlaw? This article seeks to answer these questions and to explore what options may be available to would-be casino and slots parlor operators and their owners in the (perhaps unlikely) event that the Massachusetts gaming repeal effort carries the day on November 4th.
Opening a gaming establishment in Massachusetts is an extremely expensive proposition. In addition to paying a nonrefundable minimum $400,000 application fee to the Massachusetts Gaming Commission,[ii] a successful applicant also must pay a substantial license fee: $85 million for a casino license and $25 million for a slots parlor license.[iii] And of course, additional expenses are necessary to open and operate any planned casino or slots parlor as well: in addition to construction costs, local zoning and other permits must be obtained—a process which requires significant sums to be spent, years before ground-breaking, on expert consultants to address aesthetic, noise, traffic, environmental, and other issues. Additionally, applicants are required to obtain agreements with host or surrounding communities.[iv] These agreements are required to include “community impact fees” which are intended to compensate those communities for adverse impacts the development and operation of the casino may introduce (e.g., traffic, noise, public safety).[v]
Thus far, the single slots parlor license and two out of three casino licenses have been awarded. Subject to the outcome of the election, the Southeastern Massachusetts commercial casino license is expected to be awarded in August 2015.[vi]
Remedies and Defenses Available to Gaming Companies
To date, only Penn has paid the statutorily required license fee of $25 million for its slots parlor license. [vii] The Commission allowed MGM and Wynn to delay paying the $85 million casino license fee for their respective casino licenses.[viii] But there is little doubt that all applicants have already expended large sums of money hiring private counterparties, including professional consultants to support their applications for local zoning and other site approvals. And as already discussed, they also have negotiated contracts with other private parties, including host and surrounding communities, which contemplate future payments, all in anticipation that the planned gaming establishments will soon open for business and that the rising tide of these establishments’ profits will lift all boats. If that assumption is in jeopardy, what is to become of these agreements? And who will potentially be left holding the bag? The answers to these questions are found in Massachusetts’s law of contracts and unjust enrichment, construed against the reasonable expectations created by the gaming law’s statutory scheme, and they depend on the type of payment at issue, and the identity of the person to whom it is owed.
Against the Commonwealth.
It is quite clear that, no matter what happens, applicants will not be able to recover any application fees they have paid, which the statute expressly makes nonrefundable.[ix] The Supreme Judicial Court’s decision in Abdow expressly holds that the statute’s clear language precludes the existence of any “implied contractual right [against the Commonwealth] to a final determination” of one’s application.[x] The reason is simple: the statute makes clear that the application fee is nonrefundable, even if the application ultimately is denied. So the applicant cannot have any reasonable expectation of ever getting its application fee back. The same logic precludes an unjust enrichment claim as well as a contract claim.[xi]
Whether the license fee that Penn has paid could be recovered is a much closer question. The Supreme Judicial Court left that issue open in Abdow, noting that while the Commission’s regulations had initially declared that such fees are nonrefundable, a later amendment eliminated the key language, rendering the regulations now silent on the issue.[xii] Thus, there may be a plausible argument that the license fee should be recoverable via an unjust enrichment claim (if not on a contract theory), because the applicant’s reasonable expectation was that the fee would be paid in exchange for being allowed to operate a slots parlor; should the voters frustrate that expectation in November. The argument is that the applicant should be allowed to recover the benefit it conferred on the Commonwealth, now that the reason for paying the money has been destroyed.[xiii] Denying recovery would allow the Commonwealth an improper windfall of tens of millions of dollars.[xiv]
On the other hand, the Commonwealth has a response: the applicant reasonably should have anticipated the possibility that the gaming law would be repealed, destroying the value of the applicant’s investment, so the applicant should have reasonably expected that it might ultimately wind up with less than it hoped (or nothing at all) in exchange for the license fee. Indeed, the Abdow Court expressly noted that “the possibility of abolition is one of the many foreseeable risks that casinos, slots parlors, and their investors take when they choose to apply for a license and invest in a casino or slots parlor.”[xv] And the equities arguably do not weigh that strongly in Penn’s favor here. Although the Commission’s regulations now are silent as to whether the license fee is refundable because of an emergency amendment that became effective only days before Penn was awarded its license,[xvi] the prior version of the regulations, which were in effect during much of the time that Penn’s application was pending, made the license fee nonrefundable.[xvii]
Against Private Counterparties.
With respect to private counterparties, who either have already been paid or expect to be paid substantial amounts of money in exchange for professional services, mostly in connection with site-specific studies needed to support various zoning and other regulatory approvals, the analysis proceeds along similar lines. In the event the repeal effort succeeds, whether would-be casino operators can recover money they have already paid, or unwind deals with various counterparties to avoid paying more money, depends on the contents of the contracts and what the parties’ reasonable expectations are vis-à-vis the risk of repeal. Would-be casino operators have a plausible argument that, having paid these sums to others in contemplation of building, and eventually of operating, its casino, they have grounds to unwind these deals and to recover at least some (though probably not all) of what they have paid, as well as avoid paying future amounts that still may be due. The first step is to set aside the bargain it made with the private third parties in question. Massachusetts courts have long recognized that contractual arrangements are subject to avoidance where “an event neither anticipated nor caused by either party, the risk of which was not allocated by the contract, destroys the object or purposes of the contract, thus destroying the value of performance.”[xviii] In such cases, both parties are excused from further performance of the contract and released from their respective contractual obligations.
In avoiding the contract, the key threshold issue is whether the parties to the contract may be said to have allocated the risk of the supervening event—here the risk that Massachusetts voters might repeal the gaming law that made these casino projects possible in the first place. A risk allocation may be explicit in the contract itself, or it could be implicit from the circumstances as a whole. As to the latter possibility, “[t]he question is, given the commercial circumstances in which the parties dealt:
Was the contingency which developed one which the parties could reasonably be thought to have foreseen as a real possibility which could affect performance? Was it one of that variety of risks which the parties were tacitly assigning to the promisor by their failure to provide for it explicitly? If it was, performance will be required. If it could not be so considered, performance is excused.”[xix]
If the casino operators’ contracts with third parties did not explicitly allocate the risk to the operators, there is an argument that they also did not implicitly assume that risk in the circumstances.
On the other hand, while foreseeability is relevant to the issue of risk allocation,[xx] foreseeability of the risk alone is not sufficient.[xxi] And in any event, the question here is whether the risk of repeal was allocated to the casino operators, as between it and its private counterparties. If the casino operators win on the risk allocation point, the third-party contracts should be easily avoided under the other elements needed for frustration of purpose. If successful, the repeal effort will have destroyed the purpose of both the third-party contracts and the value of those contracts to operators, through no fault of theirs. This will mean that the counterparties will not have to do anything beyond what they already have done, and the would-be casino operators likewise will not have to pay anything more than they already have.
The question that then arises is whether the parties are to be left where these supervening circumstances have placed them, or whether the operators may demand rescission of the arrangement altogether and seek a return to the pre-contract status quo. To the extent that the operators have already paid money to their private counterparties under the frustrated third-party contracts, they may recover that money back, via the remedy of rescission, to the extent that the counterparty has not already earned the money through its performance.[xxii] The object of rescission is to restore both parties to the position they occupied before they entered into the contract. But that is not always feasible, particularly where (as here) the performance of one of the parties consists of professional services rendered, which cannot be given back and which may be harder to value than money or property.[xxiii] While rescission is not per se unavailable in such cases, courts do retain significant discretion to deny relief.[xxiv]
Against Host and Surrounding Communities.
If the gaming repeal effort succeeds, it is possible that host and surrounding communities may demand that licensees nonetheless continue to pay the “community impact fees” provided for in their agreements, as the Town of Middleborough demanded of the Mashpee Wampanoag Tribe after the Tribe failed in its efforts to open a tribal gaming facility in that town. Applying the same principles discussed above to these “community impact fees” provisions, it seems unlikely that the casino operators would still be on the hook for those fees if the repeal effort succeeds. The whole purpose behind those fees is to compensate host and surrounding communities for adverse impacts caused by development and operation of the proposed gaming establishment. But if the voters repeal the gaming law, there would be no adverse impacts to compensate. The fees in that event would not serve the purpose that the parties had in mind, but would instead represent only a windfall to the host and surrounding communities, which principles of equity disfavor.[xxv] Accordingly, should the would-be host or surrounding communities seek to enforce the community impact fee provisions as a result of the repeal, the would-be casino operators have a fairly strong argument that the agreements should be avoided, and both sides released from the agreements’ obligations, based on frustration of purpose.[xxvi]
As Massachusetts voters consider whether to ratify or veto the Legislature’s decision to allow casino gambling, the gaming companies should keep in mind what recourse they may have in the event the cards turn out not to be in their favor on Election Day. While these companies obviously have every intention of winning the electoral battle, a number of arguments may be available which might mitigate the potential downside risk in the event that the worst-case scenario—repeal of the Massachusetts gaming law—comes to pass.
[i] See generally Abdow v. Attorney Gen., 468 Mass. 478 (2014).
[ii] Mass. Gen. Laws c. 23K, § 15(11); 205 Code Mass. Regs. § 118.08.
[iii] Mass. Gen. Laws c. 23K, §§ 10(d), 11(b); 205 Code Mass. Regs. § 121.04.
[iv] See Mass. Gen. Laws c. 23K, §§ 2, 15(8) & (9), 17(a).
[v] Id. § 15(8) & (9).
[vi] See Mass. Gaming Commission, “Timeline,” supra.
[vii] See Abdow, 468 Mass. at 482-83.
[ix] See Mass. Gen. Laws c. 23K, § 15(11).
[x] 468 Mass. at 496 n.15.
[xi] See Cmty. Builders, Inc. v. Indian Motocycle Assocs., 44 Mass. App. Ct. 537, 560 (1998) (entitlement to restitution requires the conferral of an “unjust” benefit, “a quality that turns on the reasonable expectations of the parties”).
[xii] 468 Mass. at 492 n.14.
[xiii] Cmty. Builders, 44 Mass. App. Ct. at 560.
[xiv] See J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 794 (1986).
[xv] 468 Mass. at 492.
[xvi] Abdow, 468 Mass. at 492 n.14 (citing 205 Code Mass Regs. § 121.01(1), (2) (effective Feb. 24, 2014)).
[xvii] Id. (citing 205 Code Mass. Regs. § 121.01(1), (2) (2013)).
[xviii] Chase Precast Corp. v. John J. Paonessa Co., Inc., 409 Mass. 371, 374 (1991); accord Massachusetts Mun. Wholesale Elec. Co. v. Danvers, 411 Mass. 39, 52 n.8 (1991).
[xix] Mishara Constr. Co. v. Transit-Mixed Concrete Corp., 365 Mass. 122, 129 (1974).
[xx] Chase Precast, 409 Mass. at 375 n.4
[xxi] Id. at 378 n.8 (citing W. L.A. Inst. for Cancer Research v. Mayer, 366 F.2d 220, 225 (9th Cir. 1966)).
[xxii] See Restatement (Third) of Restitution and Unjust Enrichment §§ 34, 54 (2011).
[xxiii] The amount that could be recovered would likely be equal to the proportion of the contractual fee that has been paid for the work which corresponds to the portion of the defendant’s performance that remained undone at the time demand for rescission was made. See id. § 34(2)(a). In essence, the amount recoverable is the amount paid, offset by whatever the counterparty is entitled to recover on a quantum meruit theory.
[xxiv] Id. § 54 comment b. See also Bellefeuille v. Medeiros, 335 Mass. 262, 266 (1957) (allowing rescission even though plaintiff could not return exact property defendant had transferred, but could restore its monetary equivalent).
[xxv] See J.A. Sullivan, 397 Mass. at 794.
[xxvi] Chase Precast, 409 Mass. at 374.
By Mark Arsenault and Laura Crimaldi| Globe Staff October 31, 2014
In a Chelsea neighborhood of steep hills and big dogs, a persistent woman in a Wynn Resorts baseball cap knocked on a dozen doors until she found that elusive election-season prize, an undecided voter.
“Have you thought about the jobs a casino would bring?” asked 66-year-old LouAnne Zawodny, referring to the Wynn casino plan for her hometown of Everett. Some of those jobs would go to Chelsea residents, she suggested to the voter, maybe to residents of this very neighborhood.
Not far away, in Charlestown, resident Dianne Ludy recently heard a very different take on the promises of the casino industry, and whether they could be trusted.
Canvasser Stephen Eisele, a spokesman for the Repeal the Casino Deal campaign, spoke to Ludy about the industry’s expansion into his home state of Missouri.
“They say, ‘Oh, this is going to solve education funding forever,’ ” he said. “My tuition went up every year I was in state school there.”
For underfunded casino opponents who cannot afford a massive advertising campaign, house-to-house canvassing for votes is a necessity. And even with a multimillion dollar TV budget, procasino canvassers have been knocking on doors and hustling for votes.
“The most effective election motivator is still personal contact,” said Jerold Duquette, associate professor of political science at Central Connecticut State University and a Western Massachusetts resident. “We give people credit for taking the time to show up and to talk to us.”
Both sides of the debate have tried to educate voters about the counterintuitive wording of the repeal question.A “yes” vote would block casinos; a “no” vote would allow casinos to open.
Elizabeth Fitzgerald, 26, addressed more than a dozen canvass volunteers at the campaign headquarters of Repeal the Casino Deal recently, to lay down the ground rules for door-to-door campaigning.
Find out where voters stand on Question 3, Fitzgerald told them, but don’t get into arguments.
“I had an 86-year-old woman try to push me down the stairs when we were talking about casinos,” she said. “It can get a little aggressive.”
The theme the anticasino canvassers took to the streets is that the gambling industry cannot be trusted.
“They come in with these beautiful drawings, promises of jobs . . . all these benefits,” said casino opponent Rob Pyles, who said his research into the industry convinced him that the promises just don’t come true.
Pyles, of East Boston, said casino proposals are “very seductive” and he was undecided about the gambling industry for a long time before becoming an opponent. Now, he’s a coordinator for Faith for Repeal, a coalition of Christian, Jewish, and Muslim groups fighting casinos here.
In 2011, state lawmakers legalized up to three resort casinos and one slot parlor in Massachusetts. Casino regulators have so far chosen three winning projects: a $1.6 billion Wynn Resorts proposal for the Mystic River waterfront, an $800 million MGM Resorts proposal for downtown Springfield, and a Plainville slot parlor project by Penn National Gaming. The final license, for Southeastern Massachusetts, is not due to be awarded until next year.
If passed, Question 3 would block all casino development in the state.
Both sides of the debate have tried to educate voters about the counterintuitive wording of the repeal question. A “yes” vote would block casinos; a “no” vote would allow casinos to open.
While Everett residents overwhelmingly supported the Wynn project in a referendum last year, residents of nearby Charlestown have raised concerns about casino traffic coming through Sullivan Square.
Peter Thompson of Charlestown complained to the canvassers that no one lives in the section of Everett where Wynn plans to build the casino, leaving Somerville and Charlestown residents to deal with its drawbacks.
Thompson said he favored repealing the casino law, though he is sympathetic to residents who approved casinos in other communities. “I have no problem with Plainville, Springfield; they should be able to get casinos. The fact that it’s all or nothing, it’s just not right.”
Canvassing against the repeal in Chelsea, Zawodny stuck to the overriding theme of the procasino campaign: jobs. Her backup argument is that the Wynn proposal would clean up a site that has been polluted for years.
“We see all the surrounding communities coming into their own,” Zawodny said, speaking as an Everett resident. “When this thing happened with Wynn, we said that it was finally our time. There is very little here. It gave people hope.”
Chelsea resident Paul Lydon, a 49-year-old pipefitter, told Zawodny that he supports casinos — and opposes repeal — for the sake of casino jobs. Maybe even a job for himself. “Having a second job is always good these days,” he said.
Down the street, Patricia Quatieri told Zawodny she was leaning against casinos in Massachusetts.
Zawodny asked her to consider the benefits of a project that would clean and redevelop the polluted Everett property: “No one has touched that piece of land down there for years.”
Quatieri said a few minutes later that she was “a little bit” persuaded to oppose the repeal, after speaking with Zawodny. “I didn’t know how bad [the land] was over there,” she said.
The dogged canvasser was on her way to the next house.
SUICIDE IS THE GAMBLING INDUSTRY'S DIRTY LITTLE SECRET!
The Gambling Vultures work hard to cover it up, keep reports out of the media.....
...to continue to PICK YOUR POCKET while you think it's entertainment.....
On the right side of this blog are CATEGORIES of collected articles, the few that have appeared because no one wants to talk about SUICIDE.
AGA even commissioned a phony report to refute the FACTS.
GAMBLING ADDICTION has the lowest rate of self-referrals of ALL addictions and the highest rate of SUICIDE. FACT!
Please don't believe you won't know someone who COMMITS SUICIDE because of GAMBLING ADDICTION....it's not true!
Take the time to read Gladys' post....
Ring of Fire - a repost in honor of Father's Day
My thoughts alone!
YES TO STOP THE CASINO MESS!
"If it can happen to me and my girls, it can happen to you and your family. It's vicious industry. By voting yes on Question 3, you'll protect your family and your community." In an emotional retelling of the loss of her husband Scott to gambling addiction, Ohio resident Stacy Stevens encourages Massachusetts voters to think twice before allowing the predatory nature of casinos to come into our Commonwealth.
|"A Family Story"|
On August 13, 2012, Scott Stevens, described as a successful business executive, husband, and father of three daughters, took his own life in a park he raised funds to build. He had lost hundreds of thousands of dollars at a casino opened up across the river in nearby West Virginia.
While it's easy to get lost in the statistics; the number of gamblers will rise in Massachusetts by the tens of thousands and gambling addicts maintain some the highest rates of suicide. The personal stories of those who struggle are also important. The predatory tactics of the casino industry have real consequences for real people.
We know the facts are on our side. The empty promises of the casino industry fail to pan out in state after state, community after community. Please share Stacy's video, make sure that her voice is heard. We may not have the millions of the casino bosses, but we have the voices of hundreds of thousands of casino repeal supporters across the state. Lend yours.
Any way you can spread the word, now is the time. You can engage with us on Twitter, Facebook, and through our website, as your voice maximizes our reach. For other ways to join the campaign, please donate, and follow us on social media.
Thank you for your support!
Repeal the Casino Deal
P.S. Please forward this message on to at least 10 of your friends and family members.
Repeal the Casino Deal | PO Box 520162 | Winthrop | MA | 02152
Thursday, October 30, 2014
Stacy Stevens' Story
Stacy Stevens shares the tragic story of gambling addiction, which took the life of her husband. She advocates for a Yes on Question 3.