Penn National has right to oppose slots at mall, Gansler says

Penn National Gaming, which operates the slot machine casino that opened last week in Cecil County, is free to support a campaign against construction of a similar parlor in Anne Arundel County, Attorney General Douglas F. Gansler said in an opinion issued Tuesday.

The Cordish Cos., which cannot build at Arundel Mills unless county voters approve the plan in a referendum next month, had asked the Maryland Lottery Commission to levy "substantial fines" against Penn National for helping to fund a group that opposes the project. The commission, in turn, asked for a legal opinion from the attorney general's office.

Company President David Cordish continued his vigorous fight against the referendum on another front on Tuesday, lashing out at Gov. Martin O'Malley, who he said was not supporting the mall project sufficiently.

"The only thing I can say about Governor O'Malley's position is he must apparently want to raise taxes," he told reporters.

The dispute over whether Penn National could spend money on the petition campaign had threatened to delay the opening of Maryland's first slots casino.

Citizens Against Slots at the Malls drew financial support from the Maryland Jockey Club, in which Penn National owns a substantial stake. The Cordish Cos. said the involvement violated state law that precludes any slots licensee from interfering with another slots license or holding more than one.

But in an 11-page opinion, Gansler wrote that the lottery commission does not have the authority to regulate "election-related activities of its licensees" — and even if it did, a court would likely find that the First Amendment protects Penn National's "advocacy."

The general counsel for the Cordish Cos. expressed disappointment with the opinion but said it "carries no more weight than our attorney's."

"The Lottery Commission is free to determine whether or not it is appropriate for one of its licensees, namely Penn National, to interfere with the establishment of the state's designee for a facility in Anne Arundel County," counsel Charles Jacobs wrote in an e-mail.

It was unclear how the lottery commission would proceed. Director Stephen L. Martino could not be reached for comment. Several members of the panel, including chairman J. Kirby Fowler Jr., have expressed disdain for Penn National's conduct. The gambling giant has agreed to help own and operate Laurel Race Track in a joint venture with the Maryland Jockey Club.

Alan M. Rifkin, an attorney for Penn National, said Gansler's opinion was "in complete accord" with the First Amendment and Maryland law.

"Once again, the Cordish Cos. have struck out in their attempt to improperly silence opposition to a slots facility at Arundel Mills mall," Rifkin said. "The matter will and should be solved at the ballot box."

Earlier Tuesday, in a meeting with reporters to rebut what he called "misrepresentations and lies" in opponents' advertisements, Cordish said he didn't "understand" O'Malley's position on slots.

Cordish is urging county residents to vote for Question A, which would affirm the zoning approved by the County Council and enable the developer to build the casino.

A citizens group called No Slots at the Mall, which is financed by the Maryland Jockey Club, has urged voters to reject the measure, in hopes of steering slots to Laurel Racetrack.

O'Malley has opined that racetracks make better locations for slots than shopping centers, and has voiced sympathy for mall neighbors, most of whom oppose the casino.

"I don't understand his position," Cordish said. "But he's entitled to his position. He's the governor. … If you're the jobs governor of Maryland, not West Virginia, you ought to be for Question A."

Cordish added that O'Malley "ought to be doing what [former] Governor Ehrlich's doing, supporting Question A."

Cordish hired Republican former Gov. Robert L. Ehrlich's law firm last year to do public relations work in Anne Arundel — a relationship that O'Malley's re-election campaign highlighted in a radio ad released Tuesday.

"This ad is about who Bob Ehrlich is really working for, and the fact that he is not on the side of Maryland families," said Rick Abbruzzese, an O'Malley deputy campaign manager.

Andy Barth, a spokesman for Ehrlich, responded that O'Malley is "making stuff up" when it comes to slots.

"Once again, Martin O'Malley is 'making stuff up' to cover up the pitiful failure of his efforts to get slots machines up and running in Maryland; they are only being discussed at Arundel Mills because O'Malley's constitutional amendment resulted in this being the only place in AA county where they could now go," Barth wrote in an e-mail.

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