Opinion statement

Oregon DOJ finds HHR machines at proposed Flying Lark resort would constitute illegal casino

Rendering for the proposed Flying Lark destination in Grants Pass, Josephine County, Oregon.
Reading time 2:13 min

An opinion released by the Oregon Attorney General’s office on Friday finds that setting up gaming machines at The Flying Lark -a proposed destination resort by Travis Boersma, co-founder of the Dutch Bros. Coffee franchise- in Grants Pass, Josephine County, would constitute an illegal casino.

"The planned concentration of 225 electronic gaming machines offering games of chance constitutes a casino," the opinion reads. "Therefore, TMB Racing’s plan violates the constitutional prohibition against casinos.”

The opinion was provided on February 11 upon a request by Jack McGrail, Executive Director for the Oregon Racing Commission, which is currently considering an application from The Flying Lark parent company TMB Racing. 

The company is seeking to operate 225 historical horse racing (HHRs) machines at its proposed entertainment facility on the grounds of the Grants Pass Downs horse racing course. The Oregon Department of Justice finds this would violate two provisions of the Oregon Constitution, which prohibit casinos and lotteries, except those operated by the State Lottery.

While the opinion does not necessarily imply a rejection of the Flying Lark’s proposal, it does, however, worsen the odds that the gaming machines will be part of the project. McGrail and the Gaming Commission are likely to take into account the state’s top attorney’s consideration when deciding whether to greenlight the project.

Boersma first filed a request for approval with the state’s Racing Commission in October. However, the matter soon sparked controversy, with a coalition of Oregon tribes quickly voicing their opposition to the project: they claim that, should the HHR machines be set up, the Flying Lark would turn into a casino, and the Oregon constitution prohibits non-tribal casinos.

While the state prohibits off-reservation casinos, the Flying Lark seeks to take advantage of a 2013 law, which allows commercial horse tracks to offer betting on HHRs. But while precedents exist, tribes argue modern versions of these machines are identical to slots, removing any element of skill that identifies them as HHR machines: the DOJ concurs.

“After reviewing the features and design of the HHRs proposed by TMB Racing, we determine that the machines are games of chance that do not afford players any meaningful opportunity to exercise skill,” the DOJ opinion reads. “As a result, we conclude that they are lotteries. Lotteries are constitutionally prohibited in Oregon, unless they are run by the State Lottery. Thus, the HHRs cannot be authorized by the Commission.”

According to Boersma, losing these machines would sink The Flying Lark and the company’s efforts to revive Oregon horse racing. Supporters of the project also claim this would threaten hundreds of jobs in Josephine County, reports KDRV12.

"I’m disappointed in the DOJ’s opinion regarding The Flying Lark,” Boersma said in a statement, released on Friday in response to 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.”

The businessman further says he believes the Oregon Racing Commission is acting in good faith and that 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," he concluded.

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