is trying to figure out how 7th and Packard is operating.
Did they require a variance and or a special exception
when they began offering sportsbook betting?
Yes, Mr. Chair.
Before I begin, may I also have Mark Stewart added?
He's my co-counsel, and he's beginning to cancel.
Yeah, we'll get Mr. Stewart on.
We'll swear him in, please.
Mr. Stewart, may you please raise your hand?
Good morning, Mr. Stewart.
Please identify yourself with the records by your full name.
Good morning, Mr. Chairman, members of the board.
My name is Mark Stewart.
That's S-T-E-W-A-R-T.
my address is 213 market street in harrisburg pennsylvania thank you you swear and affirm to
tell the truth the whole truth nothing but the truth i do sir thank you uh michael mr marionni
yes mr chairman in 1992 a variance was granted to allow looking at the old records are hard to read
to allow paramutual bedding in what was then a G2 industrial district.
So it was under the prior code, prior to the 2012 code,
and I believe it's an I-1 or an I-2 zoning class now there.
I'm not totally sure.
So I would have to look under the present code to see what is a permitted use there
before I could say whether I believe it's a permitted use under the present code.
But under the prior code, back in 1992, they were granted a variance to allow power mutual bedding, accessory restaurant, warehouse distribution, and a bunch of other things at 700.
warehouse distribution and a bunch of other things at that 700 Packer Avenue site.
Yeah, it's a mixed use building. Okay. Thank you. All right. Pardon me.
I'm ready to proceed. Mr. Stewart was going to handle the
argument this morning based upon the brief that was submitted.
Thank you very much, Mr. Mattione and Mr. Chairman, members of the board.
um fortunately uh with the additional briefing we've had uh the issue before the board is
actually quite narrow and the parties agree on several points first we agree that the sole
issue is whether the proposed use is a quote-unquote casino under the zoning code we agree
that the code defines casino by referencing and relying on the gaming act pennsylvania gaming act
It defines it as a licensed gaming facility authorized by the state pursuant to that act.
We agree that the Gaming Act, in turn, uses and defines the term licensed facility, and we agree that the proposed use at 1526 Packer Avenue is not a quote-unquote licensed facility under the Gaming Act.
To the extent there was any doubt that remained about that, Exhibit 21 that we submitted is from the Pennsylvania Gaming Control Board, a letter from their chief counsel, which states that the proposed use is not a licensed facility under the Gaming Act.
Where we diverge is that we, the applicant, contend that the zoning code's casino definition, which, as I said, expressly relies on the Gaming Act when using the phrase licensed gaming facility, means and was intended to mean licensed facility as actually used in the Gaming Act.
The city and the association, on the contrary, contend that despite the express reference to the Gaming Act, the zoning code actually defines casino differently than what's in the Gaming Act in a way that is much broader than the Gaming Act and in a way that is even contrary to what's in the Gaming Act.
And that the city council accomplished all of that by simply inserting the single word gaming into the phrase licensed facility.
As we'll also discuss later, the city and the RCO also essentially for their position to be correct, they really are asking you to change the zoning code's definition of casino.
know. They don't want it to read licensed gaming facility. They want it to read licensed gaming
activity, but we can't change the terminology and the definition, and it has to be strictly
construed, and any doubts about it have to be resolved in the applicant's favor.
The association in their briefs, you know, pointed out that they think our position is just too
simple. It's too simple. We would contend that the opposite is their main flaw. The contortions that
the association and the city need to get themselves into to piece together their position should alone
be enough to reverse LNI's decision. The simple answer here has the benefit of being the one that
is most consistent with the code and with common sense. The code's verbiage is just an imprecise
reference to a licensed facility in the Gaming Act. Interestingly, if you look at section 14-405
of the zoning code, it makes reference to, quote, the Pennsylvania Gaming Control Board Act,
end quote. Now, there is no such law in Pennsylvania as the Pennsylvania Gaming
Control Board Act. So is the zoning code referring to a statute that doesn't exist?
Is this board obligated to discard those references because the reference is to a
non-existent law? No. These are conclusions that are not reached. The clear conclusion is that the
reference to the Pennsylvania Gaming Control Board Act was meant to be a reference to the
Pennsylvania Gaming Act. Likewise, when the Code's casino definition uses the phrase
licensed gaming facility as authorized pursuant to Title IV, the Gaming Act, did the City Council
actually mean to create a new term, licensed gaming facility, that's not used in the Gaming
Act? No, it did not. It did not intend to create a new term that was very, very close.
It did not intend to create a new term that was very, very close to the term used in the
Gaming Act, licensed facility, but somehow different.
Would the city have specifically invoked and relied on the Gaming Act if it intended in
the zoning code definition to create a new term that is in fact very different than the
Gaming Act's definition and much, much broader as postured by the city and the association.
And certainly if the city council had intended such a result, it would have done so in a much
clearer way and would have done much more than simply inserting the single word gaming into that
phrase. The definition would have been explicit about the broad array of uses that were being
captured and counterintuitively considered to be a casino, even though there's no slot machines
there and there's no table games there. Rather than invoking and relying on the Gaming Act,
the council would have made it clear and explicit that they were going beyond the Gaming Act and
its use of the word licensed facility, which statutorily can only be two locations in the
city of Philadelphia, and we know what they are, Rivers, former Sugar House, and Live.
And similarly, the remainder of the code, the zoning code, would include references
and other provisions that confirm and implement the city and the association's far-flung
interpretation. But in fact, the opposite is the case. The other code provisions that we cited to
in our brief, they all confirm that the reference in the definition to a licensed gaming facility
is intended to be the very same term as is in the Gaming Act when it uses licensed facility.
section 14-405-2b of the code it expressly refers to quote a category 2 licensed gaming facility
there's no such thing in the gaming act as a category 2 licensed gaming facility
there is after all a category 2 licensed facility
clearly and it's the type of casino that is allowed to be in the city of philadelphia it's
the type of casino that Rivers and Live are. Clearly, simply inserting the word gaming into
the phrase Category 2 does not convert it to something different than what we all know that
it is. The Code and the Gaming Act are referring to the same thing. And there's other provisions
in the Code that similarly make it clear that a casino is referring to a licensed facility with
slot machines and table games. The off-street parking requirements in section 14-405 are based
upon the number of slot machines and table game positions that are going to be in a casino.
There's a reference to a licensed gaming facility in section 14-203 as an entity that may extend
credit. Licensed facilities under the Gaming Act may extend credit to players, but the proposed
use and the use at 700 Packer Avenue does not involve the extension of credit. The RCO and
their supplemental brief also pointed out that the definition of casino that's currently in the code
predated the authorization or the legalization of sports betting in Pennsylvania.
I think that further bolsters our position. Otherwise, are we to believe that it was the
intention of city council to reference the gaming not to reference the gaming acts license facility
but instead merely by inserting that word gaming into the phrase to capture uses that would not
even exist for years after the new definition of casino was adopted clearly we don't think that's
the case and the city makes an equally we would consider it to be frankly a damaging admission
in their brief. It rightly contends that zoning uses are typically defined as activities.
They are not facilities. They are activities. That's what uses are. But the casino definition
in the zoning code does not follow this typical pattern. It actually defines a casino as a
facility authorized under the gaming act and that is just more proof that the code's definition was
in fact referring to the term licensed facility in the act and here is where the city and the
association want you to change the casino definition in fact they need you to change
In fact, they need you to change the casino definition.
the casino definition. Instead of licensed gaming facilities,
Instead of licensed gaming facility, they want you to change it to licensed gaming activity.
But the board can't change the code, and the code must be strictly construed in the applicant's favor.
And the change that they are looking for in terminology is what enables them to make their claim that the mere presence of sports betting at the off-track betting facility will magically convert the OTB into, or any other non-casino facility actually, into a quote-unquote casino.
know. For all the reasons that we've noted, there's no support for that analysis in the
Gaming Act or the Zoning Code. Exhibit 21, as mentioned from the Pennsylvania Gaming Control
Board, disputes this contention. And if I may, I'm going to try and share my screen.
See, I'm not the most tech savvy guy in the world, but I managed to do this.
so here is the letter from the gaming control board their chief counsel douglas sherman
if you go down to the third page there's a highlighted sentence on the screen
the ability to offer sports wagering at a non-primary location does not change the nature
of the non-primary location, but rather simply adds a second gaming option to the parimutuel
wagering occurring at the non-primary location. So there is no conversion, if you will.
And taken to its logical end, their position that there could be or should be a conversion
would mean that any activity conducted by a slot machine licensee that is regulated by the gaming
control board would be a casino. It would be a casino use. As we indicated in our brief under
the law, slot machine licensees can get a certificate to engage in a type of interactive
gaming at the Philadelphia airport. If one would do that, would the airport be converted to a casino?
No. Similarly, slot machine licensees can rent space, just office space, where they have redundancy facilities for interactive gaming.
That's activity that they engage in that's regulated by the Pennsylvania Gaming Control Board. Under the position advanced by the city and the association, such a use would be a casino under their view of the code's definition.
But that type of result is clearly untenable on its face.
At the end of the day, mental and legal gymnastics are unnecessary here.
The simple answer is the right answer.
A casino, a licensed gaming facility under the zoning code, is the same thing as a licensed facility under the Gaming Act.
if you add to this the standard that governs the appeal and the fact that doubts need to be
resolved in the applicant's favor, you come to the conclusion that the appeal should be granted
and L&I should be reversed. And I thank you very much for your generous indulgence for our argument.
Thank you, Mr. Stewart. I do have a question. I'm going to reference the letter that you and
mr manioni sent to mr r douglas sherman who's the chief counsel for the office of enforcement
for the pennsylvania gaming control board i'm not going to read the entire letter but i do want to
this is a question that you're asking the gaming control board parks holds all requisite approvals
for the pg pgcb to conduct sports wagering at a non-primary location 700 pecker avenue
you further go on to say in section two a primary a non-primary location is prohibited from having
slot machines and table games and that is in direct reference correct me if i'm wrong to 1526
packer avenue that would be direct reference to that correct that's correct there's neither at
700 packer avenue nor at 1526 can there be slots or table games and i just want to read this for
anyone who's listening out there who may be of the impression or may have been told by people in the
community that this is going to be a casino the way we normally would think of a casino that would
allow table games, slot machines, and other forms of gaming. You further go in your letter to the
Chief Counsel. The South Philadelphia Race and Sportsbook at 700 Packard Park is not a licensed
facility under the Gaming Act and may not operate slot machines.
under the Gaming Act and may not operate slot machines or table games.
You next point out, should the State Horse Racing Commission approve the relocation of the South
Philadelphia Race and Sportsbook to 1526 Packard Avenue, Philadelphia, the relocated non-primary
location would not constitute a licensed facilities, in quotes, under the Gaming Act.
This fact would not be changed even if parks were to secure the Pennsylvania Gaming Commission board approval to conduct sports waging at 1526 Packer Avenue.
And then finally, you ask, under no circumstances would parks be able to lawfully operate slot machines or conduct table gains at a non-primary location located at 1526 Packer Avenue?
and i will just conclude with
mr sherman's response and it's a it's a two-page letter i'm not going to read through it but his
final comment is to your and mr matty only inquiry to get clarification parks would not
be able to lawfully operate slot machines or table games at any non-primary location under
the provisions of the gaming act this is a strict provision and it gives you all the numbers which
states that an authorization to conduct sports waging under this that section may not authorize
may not authorize the placement or authorization of slot machines or table games in a non-primary
location. That seems to me to be extremely clear that whatever this board decides, and if we were
to decide to move forward and approve this application, under no circumstances would 1526
Packer Avenue be permitted to have slot machines and table games or other forms of gaming other
than the sports book and racing is that accurate that is accurate sir and I believe it's actually
agreed by the other parties okay I thought I heard you say in the beginning but for those folks who
are out there and have not had that conversation with counsel for the opposition I wanted them to
make certain that they understood there was no slot machines or any other kinds of gaming other
than sports betting and horse rating which would be permitted should the board agree approve
okay i mean i'd be too long-winded but i want to get that out there for the public to understand
okay uh all right next up mr mattione are you ready or i mr stewart um made the argument and
I have nothing further to add on this issue on this. Okay. Mr. Bonnie.
good morning mr chairman good morning sir please identify yourself on the record and i'll swear
you in my name is paul bonney uh and i'm attorney for the rco which is the packard park civic
Association. My work from home address is Three Bells Court, Philadelphia 19106.
Thank you. And your name is spelled B as in boy, O-N-I. Do you swear and affirm to tell the truth,
the whole truth, nothing but the truth? I do. Thank you. Please proceed.
You know, I'm tempted, Mr. Chairman. We know we've been talking about this part of society
for so long now but would you agree with me that if Harrisburg changed the law that perhaps other
forms of gambling might be allowed here in the future I can't hear I'm sorry I can't hear you
I would agree okay Harrisburg had decided to do a lot of things they may decide to issue more
category one licenses. That's right. I doubt it from my experience, but who knows? As you well
remember, when the casino law was first passed, it was slot machines only. No table games were
No table games were allowed in this Commonwealth, and it was only two years after that that the, I think it was, what is it, 572, 672, I forget the bill number, that later authorized by certificate table games.
allowed in this Commonwealth. And it was only two years after that.
In the original bill, as you might recall, the state senate bragged that no credit would be allowed when you played your slots.
You can't gamble on credit, but two years later they could.
Now we have slot machines at truck stops. We have mini casinos. We have gambling in the airport. We have sports wagering. So things change, Mr. Chairman. And I would agree with you that under current law, they couldn't do it. And that's not part of our argument. I'm just responding to what we all think is how the world will go. We don't know how the world will go.
Well, we don't know. And we don't know. And if that were to happen, and if you're talking about maybe 1526, Packer Avenue becoming one of those facilities in the future, wouldn't they still be required to get a Category 1 license? And wouldn't that not require special zoning, the CED, a commercial, I think it was commercial entertainment district, which would have to be introduced by the city council?
We don't know.
So I think we know from past experience is why Foxwoods didn't get built, because I held it up for three years until the Supreme Court stepped in.
We don't know. I'd like to get into.
Well, no, but you raised it. Anything could happen. That's right.
Thank you. So I have a. And Chickie and Pete may decide to go out of business tomorrow.
We don't know. Well, let's hope not. He may have to go out of business.
All these bars and restaurants are suffering. Well.
Thank God we have a new president. But I want to, I have a presentation to make. And as I alluded to, as I stated last time, and as I stated in our letter brief, I have some information to present.
I want to thank the board for holding this special hearing so that this special listing, so that we do have time to explore this.
I want to mention one thing about Mr. Stewart's very eloquent argument.
and it is also something that they put in their brief
that I think if, as he pointed out,
as he describes it as a narrow issue