MGC Ponders Whether Lower Broadway Project Should Be Regulated

The Massachusetts Gaming Commission (MGC) met last Thursday to discuss, but did not formally decide, whether a parking garage, an entertainment center that seats up to 999 people, and a pedestrian bridge that would cross over the present six-lane highway and connect to the Encore casino hotel should be considered part of the gaming establishment and therefore be subject to the purview of the MGC.

These three structures would be the first phase of the overall project, with a second phase that could include up to three hotels with retail space and restaurants. The development is being planned across the lower Broadway roadway from the Encore Boston Harbor in Everett.

The commissioners during the course of the meeting also explored a third option, rather than a simple yes or no vote as to whether the development should be deemed part of the gaming establishment.  MGC staff Joseph Delaney suggested that the MGC can place  restrictions on the gaming license that would address the concerns that were raised at the public hearing on Feb. 28.  Under this third scenario, the new development would have to still deal with several federal, state and municipal agencies on a regular basis that would be able to regulate this new development without the MGC getting too involved in the details of a regulatory process, since the restrictions on the license would address the concerns.

Todd Grossman from the MGC then gave a detailed examination of both the four-way test that the MGC has used in previous cases to see whether the new Everett development should be considered part of the gaming establishment.  In the deliberation, other precedents that the MGC has used on Massachusetts gaming entities were revisited .

Grossman noted that, “The law gives the MGC great discretionary latitude.” He pointed out that in the election held in the City of Everett in June, 2013, voters approved a gaming facility only on the present Encore site, not any gaming-related facility across the street. He pointed out that in the past, the MGC did not seek to oversee  the race track at Plain Ridge Park, another gambling establishment, since the racetrack is already under the purview of other governmental agencies.

He then outlined the four-way test that the MGC should use in approaching an answer as to whether the new development should be regulated by the MGC. Before the commissioners debated the four-way test, chairperson Cathy Judd-Stein noted, “This is a complex structure before us.”

The four parts of the test are as follows:

1) Is what is proposed a non-gaming structure, specifically the bridge?

2) Is the project related to the gaming area? In other words, does it make the gaming area more inviting as a destination?

3) Is there common ownership?

4) Does the MGC want to have a regulatory interest on part or parts of the gaming structure?

For the first part of the test, all commissioners agreed that the bridge was not a gaming structure.  Commissioner Gayle Cameron pointed out that she was “quite happy with the bridge for safety issues.”

Judd-Stein said, “I welcome the bridge for safety and mitigation of traffic.” She also noted that the new design of the bridge removed the gaming floor from bridge access that could allow minors to walk accidentally onto the gaming floor.

Regarding the second part of the test, commissioner Eileen Hill noted the new development “makes Encore more attractive” as a destination. She said that she struggled with this question, since she did not want to hinder the urban renewal area of Everett where the new development is proposed.

Commissioner Bradford Hill noted, “This is absolutely related to the gaming area.” All commissioners did agree that the development would enhance the gaming area.

For the third question on common ownership, the commissioners concurred that even though the new hotel and restaurants will be operated by a third party, East Broadway LLC (the entity that is seeking to develop the area in question), it still is under the Wynn ownership umbrella.

This brought the commissioners to Part 4 of the test, namely, whether they have a regulatory interest. Encore Attorney Samuel Tony Starr of the Boston firm Mintz Levin offered the view that there are already other agencies involved in regulating the proposed properties and that overview by the MGC could add a burden to those businesses, as well as to the MGC itself..

Judd-Stein seemed to agree with this path, noting that regulatory oversight “could place a burden on the commission,” and “put a substantial burden on (third party) operators with hundreds of employees.”

Cameron pointed out, “Wynn has always been willing to work collaboratively and to listen to the concerns of all parties.”

O’Brien noted that she needed more information on the details, such as the final design of the pedestrian bridge and exactly where people could exit as they approached the casino itself.

Commissioners also noted that the Wynn’s gaming license currently has restrictions and could include additional restrictions.

At the end of the meeting, the commissioners seemed to be inclined toward not regulating the new development, but requiring that very specific steps and protocols be put into place with legally-binding documents going into the details of the buildings and their operation that would address the concerns of the commissioners and the members of the public who participated in the Feb. 28 meeting.

O’Brien pointed out, “We need to look at all the details.”

The legal staff of the MGC will formulate documents that address the concerns that were brought up at the meetings and will get back to the MGC when it has completed its task.

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