it somewhat has sort of evaporated
because that referral has been rescinded
and that a new appeal has been filed
which now even for the first time today
I'm learning has a new appeal number
but the property has not been posted
with the refusal.
Excuse me, Mr. Bonney,
we're not going forward with the refusal.
The board is going to hear the sequential
First, they will hear the appeal against L&I. If they determine that the special exception
really should have been a special exception, if they grant the appeal against L&I,
then they can resume the pending special exception case. If they do not,
then we will determine procedurally how they'll handle it from that point on.
Okay, well, I appreciate that and thank you. I just wanted, I still think I feel
sort of professionally bound to just finish making my objection. I can understand that it
may just be for the record, but I'm sorry for interrupting you. No, of course not at all.
I mean, I don't think the applicant amended their original appeal to add a challenge against
I mean, I don't think the applicant amended their original appeal to add
LNI. I think they filed a new appeal of the refusal. And so I see those two appeals as
distinct. I don't think there's anything for the second appeal to be consolidated with. And I don't
think the second appeal has been posted on the property or neighborhood net letters be sent out.
so excuse me if i can just clarify further in case we weren't clear um they're being consolidated
only for the purposes of these hearings because they are related they are not the same appeal
and there is no need to post an appeal against lni right
correct i agree with the miss felletta that the appeal against lni does not need to be
Mr. Mattione, Mr. Mattione, I'm sorry. Were you sworn in yet?
Yes, I was, Mr. Chair.
All right. I'm sorry. Just identify yourself because we know.
Again, Michael Mattione, Federal Reserve Bank Building.
That's M-A-T-T-I-O-N-I, 100 North Independence Mall, Suite 5A Northwest, Philadelphia, 19106.
And again, this is an appeal. I'm sorry, Mr. Chairman.
No, please proceed. Thank you.
This is an appeal against L&I, and appeals against L&I do not get posted the same way that a referral or refusal gets posted.
So I think that that's the first issue.
So I would disagree with Mr. Bonney and his objection to this proceeding.
We noticed, and we're here, and there is no posting of an appeal against L&I.
So with that, I would like to proceed, Mr. Chairman.
Let me just do my last point is that the appeal that was recently filed was styled and identified, you know, in the appeal as a third party appeal.
I don't believe that this is a third party appeal.
This is the applicant appealing the refusal.
So I don't think it's a quote-unquote appeal against LNI or a third-party appeal.
I think it's a regular appeal.
But I have made the record, and I want to thank everyone for their indulgence, and I'll be quiet now.
Thank you.
I will proceed, Mr. Chairman.
Please proceed.
Thank you.
Again, Michael Mattione, and I am counsel for City Turf Club, the operator of the South Philadelphia OTB Race and Sportsbook.
We filed an appeal of the rescission of the referral that was originally issued on August 13, 2020,
for the application to relocate the OTB Race and Sportsbook to Inside Chickies and Pete's Restaurant and Sports Bar at 1526 Packer Avenue.
We believe the decision to revoke the referral and replace it with a refusal is an error of law and abuse of discretion by the City of Philadelphia.
We submitted an extensive memorandum of law on February 5th that fully explains our position
as to why this appeal should be sustained and the referral reinstated. I'm going to now review
our position for the board in greater detail as was set forth in our memorandum of law that was
filed with L&I and the zoning board, I'm sorry, filed with the zoning board on February 5th and
served on all parties. Again, I represent the City Turf Club and they are the owner and operator
of the race and sports book, which is presently located at 700 Parker Avenue.
On July 31st, City Turf Club filed an application to downsize and relocate their OTB race and sports book
from a 34,000 square foot location at 700 Packer Avenue to a 2,600 square foot location
inside Chickie's and Beats Restaurant and Sports Bar at 1526 Packer Avenue.
After filing, Council for City Turf Club engaged in a few email discussions
with the plans examiner assigned to review the application, Chelle Dahl. After a few emails,
Ms. Dahl was satisfied that the application was for a generic assembly and entertainment use
as defined in section 14-6017C. That's 14-6017C of the zoning code. Section 14-6017C was carefully
reviewed to determine whether the use fell under any of the assembly and entertainment specific
use stores. Particular attention was paid to the definition of casino in section 146017C2.
It was determined that the proposed use in OTB, race and sports book, is a non-primary location
defined by the Horse Industry Reform Act 3PACS section 9301. The plans examiner issued the
referral because the use is not a casino as is defined in Section 146017C2 because the zoning
code specifically defines casino as a licensed gaming facility authorized pursuant to 4 PACS Part 2.
authorized pursuant to 4 PACS Part 2. The OTB Race and Sportsbook is not licensed pursuant to 4 PACS
Part 2, so it falls outside of the definition of casino in the zoning code. Use also falls outside
of any other specific use types defined in the zoning code, such as the OTB Race and Sportsbook
is not an amusement arcade, nightclub, or private club, pool, or billiards room, or movie theater.
For these reasons, the Plans Examiner correctly determined that the proposed use was a generic assembly and entertainment use as set forth in the code under Section 146017C.
1526 Packer Avenue is located in the CA1 zoning class.
The generic assembly and entertainment uses are permitted as special exceptions in the CA1 zoning district.
The Plans Examiner correctly issued a referral on August 13, 2020.
As Ms. Tenere said, a first day of hearings was held on December 1, 2020, on the application
for special exception.
Only on January 26, 2021, more than five months after the referral was issued, the counsel
for the RCO sent a letter to the ZVA stating that the RCO believed that a variance, not
a special exception, was required.
It should be noted that the RCO never filed a formal appeal application challenging the
issuance of the referral.
Upon receipt of this letter, the City determined that a refusal should have been issued and
revoked the referral and issued a refusal dated January 28, 2021, but which was not sent to
my office until February 4, 2021. Immediately upon receipt of the refusal, we filed the appeal
that we marked as Exhibit 11, our exhibits that were provided to the Zoning Board on February 5.
Also included Exhibit 13 as a memorandum of law and supported this appeal,
which was also filed with the Zoning Board on February 5th.
As I will explain, the Memorandum of Law explains why this appeal should be granted,
the refusal rescinded, and the referral reinstated.
The refusal claimed that the use was a casino, ignoring the definition of casino contained in the zoning code.
This use is not a casino.
City Turf Club is relocating an OTB race and sports book to 1526 Packer Avenue.
City Turf Club filed a relocation petition with the State Horse Racing Commission to relocate the OTB Racing Sportsbook.
A copy of the relocation petition is attached to Exhibit 17 of the material submitted to the ZBA on February 5th.
The present and future location of the OTB Racing Sportsbook is a non-primary location
and is not a licensed casino or a licensed facility, as is defined in the Gaming Act and the Zoning Code.
The RCO has repeatedly stated that City Turf Club intends to operate a casino at the new location,
even though City Turf Club has been operating an OTB facility at 700 Packer Avenue for nearly 30 years.
It is not a casino and never will be.
The facility is a licensed OTB under the Racing Act, not under the Gaming Act.
It will remain a non-primary location after the relocation.
The Racing Act defines a non-primary OTB location as a facility in which pari-mutual wagering is conducted
other than a racetrack where live racing is conducted.
Pari-mutual wagering is defined in the Racing Act as wagering on the outcome of a horse racing event
organized for the distribution of the total amount wagered, less deductions permitted by law.
The State Horse Racing Commission has traditionally exclusively licensed OTB facilities.
In 2018, sports wagering was permitted at non-primary locations such as the turf club.
The Gaming Act permitted slot machine licensees to conduct sports wagering at the licensed
primary facility and also at non-primary locations such as the turf club.
The zoning code refers to licensed gaming facilities as defined in PA-4-PA-CS Part 2
and describes a licensed facility as an operation authorized to play slot machines and table games.
The Race and Sportsbook is not a licensed facility under the Gaming Act,
and CityTurf Club, its operator, is not a licensed gaming entity.
There is a clear distinction between racing and gaming facilities.
Licensed gaming facilities allowing slot machines, but racing facilities are prohibited from allowing slot machines.
The OTV Race and Sportsbook is a retail establishment where patrons can place race and sports wagers in person.
A licensed facility under the Gaming Act is a physical location at which a licensed gaming entity is authorized to operate slot machines, table games, and interactive gaming.
Either pari-mutual or sports wagering qualifies as any of these types of activities.
Neither pari-mutual or sports wagering qualifies as any of these types of activities, and neither is referred to in the Gaming Act definition of licensed facility or the zoning code definition of licensed facility.
For this reason, a facility where pari-mutual and sports wagering is conducted is not and cannot be a licensed facility.
Since the OTB, Race, and Sportsbook cannot be a licensed facility, it cannot be a casino as defined in the zoning code in Philadelphia, and CityTurf Club is not a licensed gaming facility, licensed gaming entity as defined in the Gaming Act, so it cannot operate slot machines, table games, and is not a licensed facility or casino.
In an abundance of caution, and to try to make things clear, non-primary locations, such
as the OTV, Race, and Sportsbook, are not among the enumerated facilities to constitute
a licensed facility under the Gaming Act.
The Pennsylvania Gaming Control Board does not regulate non-primary facilities.
These facilities are regulated by the State Horse Racing Commission.
In order to be a casino, a facility would have to be licensed by the Gaming Control
Finally, the Gaming Act prohibits casino gaming at non-primary locations such as the
OTB race and sports ball.
The plain language in the zoning code is clear and unambiguous.
When the language of an ordinance is unambiguous, the letter may not be disregarded to pursue
the spirit of the ordinance.
The zoning code relies upon the Gaming Act to define a casino.
The Gaming Act's definition of casino is controlling because that is what the zoning code relies upon to define casino.
Since the OTB race and sports book falls outside of a licensed facility as is defined in the zoning code,
the OTB race and sports book cannot be a casino as the term was defined in the zoning code.
The only definition in the zoning code that applies to define the OTB race and sports book is the generic assembly and entertainment definition in section 146017C.
The use is, as discussed, not a casino.
Thus, the issuance of the referral on August 13 was correct, and the recent rescinding of the referral and replacing it with a refusal is an abuse of discretion and an error of law by the City.
For these reasons, we request that this appeal be granted and that the refusal be rescinded and the referral that was originally issued on August 13 be reinstated.
Thank you, Mr. Chairman.
Mr. Maglioni, would you have any knowledge as to the current OTB at 7th and Packard? What zoning
classification was issued for that? It went back to the early 90s when it was opened. It was a G2
industrial use and it required a variance to open. Only that was because it was G2, correct?
Me too. Now I believe it's I-1.
I think, you know, because with the new zoning code, they changed the zoning classifications.
I believe it's I-1.
Other than the size of the current facility at 7th and Packard,
is there any other change in the way, in the operation that is being proposed at Chickie and Pete's?
I mean, it's going to be a brand new modern facility, a brand new upscale.
But the operation itself is going to be the same operation.
Same operation.
regional sports facility. No other games of chance or anything will be added to that
proposed facility, correct? They will not be and they're not allowed to legally either.
They would need a special zoning commercial entertainment district in order to open up a
casino. And that would have to be issued by the Commonwealth of Pennsylvania Gaming Commission.
Correct. And there are no further casino licenses available and it cannot happen under this
regulatory scheme it's impossible thank you mr chairman thank you i don't know who's next mr
bonnie or mr reuter um i guess i'll go next um if you can all hear me i have to keep asking that
yeah leonard i believe you're still under oath so just identify yourself for the record and proceed
Sure. Leonard F. Reuter for the city of Philadelphia, senior attorney. I want to just clarify something that may have gotten a bit mixed up or missed in terms of Mr. Mattione's presentation.
If we were just talking about off-track horse race betting or parimutuel betting, we wouldn't be here.
That is not the issue.
The issue here is they specifically said that they would do sports wagering at the location.
And on that point, I would respectfully disagree with Mr. Mattione's assessment of what the state law requires.
I think we can all, I assume that we can all stipulate that the city's definition, first of all, I think we can all stipulate that the city's definition.
I assume that we can all stipulate that the city's definition, first of all, I think we can all stipulate that for this zoning classification, CA1, whereas certain amusements are allowed by special exception, casino is explicitly not permitted in CA1.
So if this were a casino, there would be no dispute, if there was no dispute this was a casino, there would be no dispute that it is not permitted in this district and a refusal should have been issued.
I agree that with respect to the application, to the extent that it sought parimutual betting and off-track betting for horse races, which is a very different thing, and I agree with Mr. Mattione, it's a completely different thing.
to people to a lay person I guess they might think gambling is gambling what's the difference
but state law makes a huge distinction between the two because horse racing has been allowed
in the state for many decades gambling obviously is relatively recent and off-track betting is its
own thing so off-track betting on horse races and I think that's where we have to keep the focus
The application sought off-track betting, paramutual betting, and sports wagering,
and it is a sports wagering that is the issue here.
I'm going to try to share my screen here just to highlight just what the state law says.
I'm not going to present any exhibits here or anything along those lines, so let me just do this.
so again we have in order to be authorized under the state this is a title for pennsylvania
consolidated statutes uh section 13c11 so 13c is the chapter that deals with us when the state
in 2018 authorized sports wagering throughout pennsylvania essentially on a temporary basis
is, you know, subject to, you know, depending on what the feds wind up doing with sports betting.
So I think, but that being the case, so it's 13C. 13C11 dictates who is authorized to conduct
sports wagering. So this is the state law. This is the General Assembly. So subsection A sub 1
sub I, the board may authorize a slot machine licensee to conduct sports wagering and to
operate a system of wagering associated with the conduct of sports wagering at the slot machine
licensee's licensed facility, a temporary facility authorized under 13C21B, an area authorized under
section 13C21C, or through an internet-based system. So I also want to point out, if you look
um at subsection three there nothing in this is very key nothing in this part shall be construed
to create a separate license governing the conduct of sports wagering by slot machine
licensees within this commonwealth so it's our interpretation that what this means is that is
a couple things first of all if you're going to offer sports wagering and again we're not talking
horse racing, we're talking about everything but horse racing, basketball games, football games,
baseball games, tennis, table tennis. I mean, sports betting covers basically any athletic
activities other than horse racing. If you're going to offer wagering on sports other than
horse racing, you must be a licensee under the state's gaming code. You cannot offer sports