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Oregon DOJ: The Flying Lark is a prohibited casino

Grants Pass Downs

The Oregon Department of Justice has ruled that the 225 machines critical to a proposed horse racing-themed hospitality and wagering center in Grants Pass would not comply with Oregon law.

The opinion issued to the Oregon Racing Commission Friday determined that the Historic Horse Racing terminals planned for the Flying Lark differ from live horse racing, and therefore the facility “would constitute a prohibited casino.”

“After reviewing the features and designs of the HHRs proposed by (the Flying Lark parent company and Grants Pass Downs leaseholder) TMB Racing, we determine the machines are games of chance that do not afford players any meaningful opportunity to exercise skill,” according to the opinion sought by the Oregon Racing Commission.

A call to the Flying Lark — a 35,000-square-foot entertainment center next to Grants Pass Downs backed by Dutch Bros. Coffee co-founder Travis Boersma — was not returned late Friday. Boersma did, however, issue a statement, citing his disappointment in the DOJ opinion.

“I firmly believe it willfully disregards the state’s laws, which were lobbied for and agreed upon by Oregon’s sovereign nations,” Boersma said. “I believe the Oregon Racing Commission is acting in good faith and the process will ultimately reveal the Flying Lark to be a legal venture that serves to improve Oregon’s economy.

“I remain committed to saving horse racing in Oregon, providing family wage jobs in Southern Oregon, and working closely with tribal leaders to ensure all Oregonians benefit from the opening of the Flying Lark.”

HHR machines use cabinets similar to slot machines and allow people to bet on recordings of horse races. According to the opinion issued by Oregon DOJ Chief Counsel of the General Counsel Division Renee Stineman, the machines give the player limited time and information to make bets, and players do not know which race they are betting on, the names of the horses, trainers or jockeys.

“In fact, the player is not even shown the day-of-race odds; rather, the machine has internal access to that data and ranks the horses for the player,” Stineman writes in the opinion.

The Oregon Racing Commission sought the Department of Justice’s opinion before making a decision on whether to authorize the terminals made by Ainsworth Game Technology, Konami Gaming, PariMAX Holdings and Castle Hill Gaming.

The DOJ stated it considered that the Flying Lark has other features, such as a restaurant, bar and office space, but the dominant purpose of the facility “is clearly gambling.”

Gambling is prohibited under the state constitution if operated by any organization that’s not the Oregon Lottery.

“Because the proposed HHRs are games of chance, they qualify as a lottery but would not be operated through the State Lottery. Therefore, operation by TMB Racing would violate the constitutional restriction on lotteries.

The DOJ ruling mentioned that similar devices used from 2015 to 2019 at the since-closed Portland Meadows racing track complex only in a brief footnote.

“We recognize that the now-closed Portland Meadows race course operated HHRs similar to those proposed by TMB Racing. However, whether the constitution permitted those machines to be authorized was never formally resolved,” the footnote states.

Reach web editor Nick Morgan at 541-776-4471 or nmorgan@rosebudmedia.com. Follow him on Twitter @MTwebeditor.