State gaming and racing regulators

Summary

The State gaming, racing and charitable-gaming regulators were appropriate governmental authorities in the statutory sense: each holds by statute the exclusive power to license, condition, suspend and close the commerce it regulates, and each used that power in March 2020 to close its licensees outright, in May-July 2020 to reopen them only on written conditions it approved licensee by licensee, in November-December 2020 to re-tighten, and in 2021 to keep capacity, distancing, screening, masking and employment-condition orders in force into the third quarter. Their instruments matter to the Suspension Clause for three reasons. First, they are orders in terms: 'all gaming operations... shall... cease' (Louisiana, Ex. 050); 'shall be suspended at 8:00 p.m. on March 16, 2020' and 'shall not reopen... until the Director of the Division vacates the suspension... by written order' (New Jersey, Ex. 080); 'All gaming devices, machines, tables, games, and any equipment related to gaming activity must be shut down' (Nevada, Ex. 002); 'ordered all riverboat gaming casinos in the state to temporarily suspend their casino operations and to close' (Missouri, Ex. 038). Second, they reached far beyond the casino floor: hotel towers, restaurants, bars, showrooms, arenas, convention space, pools, racetracks, simulcast parlors, truck stops, taverns and grocery stores with video poker or bar-top slots, bingo halls run by charities and fraternal clubs, and the thousands of vendors, contractors and third-party tenants whom the reopening orders bound through the licensee (Exs. 013, 022, 060). Third, they ran continuously: Nevada's Board reissued its Health and Safety Policies eight times between May 2020 and April 2021 and stated in April 2021 that its cleaning and disinfection protocols had 'been in place since June 4, 2020' (Ex. 016); Louisiana's Board issued thirty numbered COVID-19 emergency orders between March 16, 2020 and October 27, 2021 and recited in the last of them that Orders 24, 25 and 27 'remain in full force and effect' (Ex. 079); Massachusetts rescinded its casino orders only at 12:01 a.m. on May 29, 2021 and left a pandemic safety officer and case-reporting duty in place 'until further notice' (Ex. 037). 2020 Q2 (from March 13). March 15 (Ex. 029); the Pennsylvania Gaming Control Board ordered the six casinos still open closed by 6:00 a.m. March 17 (Ex. 026); the New Jersey Division of Gaming Enforcement suspended the nine Atlantic City casinos and two racetrack sports lounges at 8:00 p.m. March 16 (Ex. 080); the Louisiana Board closed every casino, racetrack slot floor and video poker device at midnight March 16 (Exs. 050, 051); the Mississippi Commission closed all 26 casinos at midnight March 16 and all charitable gaming by 8:00 a.m. March 17 (Ex. 048); the Missouri Commission closed all thirteen riverboats at midnight March 17 (Ex. 038); the Nevada Board enforced Directive 002's shutdown of every gaming device in the State and approved the temporary closure of every licensed establishment (Ex. 002); the New Mexico Board directed bingo and nonprofit gaming licensees to cease all games of chance and close on March 19 (Ex. 089). The closures were extended in writing through April and into May (Louisiana Orders 4, 5, 7, 8, 10, 11, Exs. 052-057; Missouri Exs. 039-041; Nevada Directive 010 and Notice 2020-23). Reopening came only on the regulators' conditions: Mississippi at 50 percent occupancy with entry screening and no entertainment from May 21 (Exs. 043, 049); Louisiana at 25 percent of occupancy and 25 percent, then 50 percent, of gaming positions from May 18 (Exs. 058, 059) and at 50 percent occupancy and 75 percent of positions with temperature screening from June 5 (Ex. 060); Missouri June 1; Nevada June 4 under the Board's reissued policies with resort-hotel arrival screening (Ex. 005); Ohio June 19 under mandatory distancing, masking and a telework clause (Exs. 087, 088). New Jersey, Pennsylvania, Massachusetts, Michigan and New Mexico casinos were still closed on June 30, 2020. 2020 Q3. Atlantic City reopened at 6:00 a.m. July 2 at 25 percent with indoor dining barred until September 4 (Exs. 018-022; Borgata July 23-26, Ex. 021); Massachusetts July 6 under the Commission's Minimum Requirements (three players per blackjack table, no craps, roulette or poker, occupancy by formula) (Exs. 030, 032); Detroit August 5 at 15 percent of legal capacity (Exs. 081, 082); Pennsylvania on Board-approved plans with poker rooms closed (Ex. 025). Nevada closed bars and bar-top gaming in seven counties from July 10 to September 10-20 (Exs. 008-010) and required universal masking (Ex. 007). Louisiana's Phase II and Phase III conditions kept every casino at 50 percent occupancy (Ex. 060); Mississippi imposed universal indoor masking on casinos and bingo halls from July 3 (Exs. 046, 047); California's racing regulator ran Del Mar and the Northern California circuit without spectators (Exs. 084, 086). New Mexico's racetrack casinos and nonprofit gaming rooms remained closed all quarter (Ex. 089). 2020 Q4. Nevada's Board incorporated Directive 033's gathering rules (Ex. 011) and then Directive 035's Statewide Pause (25 percent floors; gatherings of 50 or 25 percent) (Ex. NV-050); Massachusetts imposed Order No. 53's early closing (Ex. 034) and then Order No. 59's 25 percent cap from December 26 (Ex. 035); Louisiana returned to modified Phase II on November 25 with half of all gaming devices disabled and mandatory masks (Ex. 063) and extended its employment-condition forbearance (Ex. 064); Detroit operated at 15 percent until the MDHHS closed the casinos again from November 18 to December 22 (Exs. 081, 083); Pennsylvania's casinos closed again December 12, 2020 through January 4, 2021 under the Governor's order (see the PA State file); New Mexico stayed closed. 2021 Q1. Nevada stepped to 35 percent February 15 and 50 percent March 15 (Ex. 013) and conditioned further relief on workforce vaccination (Ex. 015); Louisiana moved to Phase III (50 percent occupancy, 75 percent of positions) on March 5 (Ex. 069); Massachusetts reintroduced craps on March 11 with the floor still capped near 40 percent (Ex. 036); New Mexico's racetrack casinos reopened at 25-75 percent of occupancy by county from February 25 (Exs. 091, 092). 2021 Q2. Louisiana removed numerical caps April 1 but kept mandatory distancing, screening and employee protocols (Exs. 073, 074); Nevada set county-by-county gaming capacities from May 1 (Clark County 80 percent) and ended capacity limits June 1 while masks continued (Ex. 017; Ex. NV-074); Massachusetts rescinded its casino orders May 29 on conditions (Ex. 037); New Jersey's caps ended May 19 - June 4 (Exs. NJ-047, NJ-050); Nevada's pool rules ran through April (Ex. 014). 2021 Q3. In force on July 1, 2021: Louisiana Order No. 24 (mandatory distancing to avoid crowding in gaming areas, lobbies, food and beverage facilities and amenities; employee protocols; plan approval) (Ex. 074) and the employment-condition forbearance orders (Exs. 075, 077); Nevada's statewide mask rule under Directive 045 as enforced by the Board (Ex. NV-074); Massachusetts' pandemic-safety-officer and case-reporting conditions (Ex. 037); Louisiana's COVID-19 Response Liaison requirement (Ex. 062). Added during the quarter: Louisiana Order No. 27 (August 4: masks mandatory for all employees and all persons indoors on every gaming property, under Proclamation 137 JBE 2021) (Ex. 076); Nevada Directive 047 and GCB Notice 2021-71 (masks in counties of substantial or high transmission from July 30) (Exs. NV-041, NV-051); Louisiana Order No. 29 (September 22: a governmental finding that admissions had not returned to 2019 levels and that employment conditions could not be enforced through December 31, 2021) (Ex. 078).