If, as expected, the Pennsylvania Gaming Control Board awards a second Philadelphia casino license Tuesday, applicants who are turned down can appeal directly to the Pennsylvania Supreme Court.
But if the past is any guide, their chances of success are at best slim.
Since the onset of casino gambling in Pennsylvania in late 2006, business groups have competed fiercely to win the approval of the Gaming Control Board. And a half-dozen applicants who have been denied licenses have asked the Supreme Court to reverse the decision.
But in every instance, the Supreme Court has sided with the board.
Lawyers familiar with the process say this shouldn't come as a surprise. The Pennsylvania Gaming Act, which opened the doors to casino gambling, gives the board wide discretion in deciding which applicants are suitable.
Applicants who are turned down are given 30 days to appeal directly to the Supreme Court, a feature designed to accelerate the process.
But the burden is high. The Gaming Act says the high court "shall affirm" final orders of the board unless there has been a misreading of the law or regulators engaged in a "capricious disregard" of evidence.
"The statute allows the board a great deal of discretion," said Thomas A. "Tad" Decker, former chairman of the Gaming Control Board and current vice chairman of the Cozen O'Connor law firm. "The presumption is the board has . . . done their homework."
Four license applications are before the board: Live! Hotel & Casino, a joint venture of Cordish Cos. of Baltimore and Greenwood Gaming & Entertainment Inc.; developer Bart Blatstein and his proposed Provence casino complex at 400 N. Broad St.; Ken Goldenberg's Market8 at Eighth and Market Streets in Center City; and produce magnate Joseph G. Procacci's Casino Revolution at Front Street and Pattison Avenue.
A spokesman for Provence said the applicant remained hopeful that the project would be approved, and thus saw no need to discuss appeal options now.
A caller representing Casino Revolution declined to comment. Representatives of the other two projects did not respond to calls for comment.
One wild card in any appeal is the ongoing reduction of the gambling market. The act directs the board to employ what it calls a "prudent man" standard, which some casino lawyers interpret to mean that regulators base their judgments in part on whether a casino project makes economic sense.
It is on that basis that the one existing casino in Philadelphia, SugarHouse, is expected to appeal the decision. SugarHouse is not an applicant in the proceeding before the gaming board. But it won intervenor status this year with the argument that a second casino in the city would have financially catastrophic consequences.
In an eleventh-hour effort to head off expected competition, SugarHouse lawyers on Nov. 6 asked the board to reopen the record, arguing that the closing of four Atlantic City casinos and a fifth announcing it will end business there on or before Dec. 12, the decline in slot-machine revenue in Pennsylvania, and the anticipated opening of casinos in New York and Massachusetts are evidence of a saturated market for gambling.
To the extent that the industry has supplied SugarHouse with incontrovertible evidence of its own troubled condition, this line of argument would be relatively novel. In the past, disappointed applicants have stuck to more prosaic attacks. Such was the case in 2007, when Riverwalk Casino appealed its denial for a Philadelphia license, arguing that the Gaming Board had breached the open public meetings act, disregarded its own conflicts of interest, and incorrectly analyzed traffic impact of the proposed projects.
The Supreme Court, in a May 15, 2007, decision, dismissed each of those complaints and upheld the board's decision to license SugarHouse and the planned Foxwoods casino, which was never built.
In spite of the long odds, John Dornberger, a lawyer with the Philadelphia firm of Post & Schell and an expert on casino law, says the likelihood is that one or more of the losing parties in the application process will appeal.
"The amount of money spent by an unsuccessful applicant is significant," Dornberger said. "And I think they are going to make a practical decision on that basis. My sense is they would have to consider that. We have come all the way down the road, and we might as well go the distance."
Four groups have license applications before the board:
Live! Hotel & Casino, a joint venture of Cordish Cos. of Baltimore and Greenwood Gaming & Entertainment Inc.
Developer Bart Blatstein and his proposed Provence casino.
Ken Goldenberg's Market8 at Eighth and Market Streets in Center City.
Produce magnate Joseph G. Procacci's Casino Revolution at Front Street and Pattison Avenue.
A PREVIEW OF TUESDAY'S HEARING, A1EndText