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Davric v. Bangor Historic, attorneys and footnotes.

Attorney for plaintiff:

Edward S. MacColl, Esq., (orally)
Thompson, Bull, Furey, Bass & MacColl, LLC, P.A.
P O Box 447
Portland, ME 04112-0447

Attornys for defendats:

William B. Devoe, Esq., (orally)
Eaton, Peabody, Bradford & Veague, P.A.
P O Box 1210
Bangor, ME 04401-1210
(for Bangor Historic Track)

Catherine R. Connors, Esq., (orally)
Peter W. Culley, Esq.
Pierce Atwood
One Monument Square
Portland, ME 04101-1110
(for Ival Cianchette)

Andrew Ketterer, Attorney General
John H. Richards, Asst. Attorney General (orally)
6 State House Station
Augusta, ME 04333-0006
(for Maine Harness Racing Commission)
FOOTNOTES******************************** {1} . Section 271(1) states in pertinent part: 1. Licensing. If the commission is satisfied that all of this chapter and rules prescribed by the commission have been substantially complied with during the past year and will be fully complied with during the coming year by the person, association or corporation applying for a license; that the applicant, its members, directors, officers, shareholders, employees, creditors and associates are of good moral character; that the applicant is financially responsible; and that the award of racing dates to the applicant is appropriate under the criteria contained in subsection 2, it may issue a license for the holding of harness horse races or meets for public exhibition with pari-mutuel pools, which must expire on December 31st. 8 M.R.S.A. § 271(1). {2} . The record reflects no evidence was offered by Davric that it met the requirements to operate as a "commercial track." We note, however, that no challenge was made to Scarborough Downs' designation. {3} . This section was recently amended by P.L. 1999, ch. 482, § 2, to clarify the definition of the 50-mile radius. The amended statute reads: 1. Commercial Track. "Commercial Track" means a harness horse racing track licensed under this chapter to conduct harness horse racing with pari-mutuel wagering that: A. If the population of the region is 300,000 or more, based on the 1990 U.S. Census, conducted racing on more than 100 days in each of the previous 2 calendar years; or B. If the population of the region is less than 300,000, based on the 1990 U.S. Census, conducted racing on more than 25 days in each of the previous 2 calendar years. For the purposes of this subsection, "region" is determined by measuring a distance of 50 miles from the center of the racing track along the most commonly used roadway as determined by the Department of Transportation, drawing a circle around the center of the racing track using the 50-mile measurement and excluding those municipalities or unorganized territories that do not have boundaries contained entirely by that circle. 8 M.R.S.A. § 275-A (Supp. 1999). This clarified definition, which became effective on September 18, 1999, is retroactive to June 17, 1993. See id. (codifying P.L. 1999, ch. 482, § 10). Because the Commission awarded BHT's license and race dates before the amendment was enacted and because we do not remand for a determination of whether BHT satisfies the definition of a commercial track, we need not discuss the applicability of the amended definition. {4} . Neither party attempts to argue that BHT satisfies section 275-A(1)(A); the record indicates that BHT did not operate 100 live race dates. {5} . Section 295 states: 1. Payment. Amounts calculated as off-track betting facility simulcast fund share under section 286 must be paid to the commission for distribution as provided in subsection 2. 2. Distribution. On May 30th, September 30th and within 30 days after the close of all off-track betting facilities for the year, amounts payable under subsection 1 for distribution in accordance with this subsection must be distributed only for the dates assigned by the commissioner pursuant to Title 7, section 65 to the commercial racetracks and the agricultural fair associations that provide simulcast transmission of live racing in the State. Distribution must be in the proportion that the amount of wagers placed at off-track betting facilities on simulcast races from each licensee up to the last day of the preceding month bears to the total amount wagered at off-track betting facilities on races simulcast from all commercial racetracks and agricultural fair associations up to that date. The last payment of the calendar year must be adjusted to reflect each licensee's wagers in proportion to the total wagered at off-track betting facilities in that calendar year. 8 M.R.S.A. § 295. {6} . Section 287 states in relevant part: 2. Commercial meet account. The Treasurer of State shall deposit in a commercial meet account 72% of the revenue credited to the General Fund under this section that is attributable to amounts in excess of $35,000,000. This account must be divided in the proportion that the contributions of regular and exotic wagers of pari-mutuel pools on live racing made or conducted at the commercial meets of each licensee during the calendar year bear to the total contributions of regular and exotic wagers to pari-mutuel pools on live racing made or conducted at the commercial meets of all licensees during that calendar year. Licensees sharing in this distribution shall use 1/2 of the funds received for the purpose of supplementing purse money. The other 1/2 of this distribution must be paid to the commercial licensees as reimbursement for improvements made to their racing facilities in the calendar year during which the funds are generated. To receive reimbursement, commercial licensees must submit plans for the improvements to the commission and receive approval from the commission prior to making the improvements, and the commission must verify that the approved improvements have been made. 8 M.R.S.A. § 287. {7} . Section 275-N provides: The commission may not allow interstate simulcasting or license any off-track betting facility for any calendar year unless during the preceding calendar year there was at least 150 race dates on which live racing was actually conducted at the commercial tracks. Interstate simulcasting must always be allowed at any commercial track that conducted at least 136 race dates during the immediately preceding calendar year or at an existing commercial track as defined in section 275-A, subsection 1, paragraph B at which at least 35 race dates were conducted during the immediately preceding year. For the purposes of this section, any race date that the commission determines was canceled due to a natural or other disaster must be counted as a race date. 8 M.R.S.A. § 275-N. {8} . We note that the 2000 race date and licensing hearings have come and gone without Davric challenging BHT's status as a commercial track. {9} . Davric also maintains that BHT's eligibility to receive distributions from the OTB and CMA funds, pursuant, respectively, to 8 M.R.S.A. §§ 295 and 287(2), cannot be determined at the race date hearing. This argument is wholly unsubstantiated. Section 295 merely requires distribution of the OTB account to "commercial race tracks." See 8 M.R.S.A. § 295. Section 287(2) requires the Commission to distribute the CMA account to commercial meet licensees and section 275-A defines a commercial meet as a race at a commercial track. See 8 M.R.S.A. § 275-A. Thus, BHT's eligibility for these funds was contingent upon its status as a commercial track-a determination that the Commission permissibly made at the race date hearing. {10} . Section 11002 states in relevant part: 1. Proceedings instituted. Proceedings for judicial review of final agency action . . . shall be instituted by filing a petition for review in the Superior Court . . .: * * * 3. Petition filed. The petition for review shall be filed within 30 days after receipt of notice if taken by a party to the proceeding of which review is sought. 5 M.R.S.A. § 11002.

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