By GARRY RAYNO, InDepthNH.org
CONCORD — Attorneys for Concord Casino owner Andy Sanborn claim state regulators keep moving the goalposts as they attempt to prepare for an administrative hearing to determine if he is unsuitable to hold a charitable gaming license.
At a hearing Monday in Merrimack County Superior Court on whether to continue an injunction blocking the hearing Sanborn requested to contest the attorney general’s findings, his office contended it made an offer granting everything Sanborn’s attorneys wanted, but that was not enough.
The former state Senator was accused of federal financial fraud, for accepting a $844,000 federal COVID Economic Injury Disaster Loan and buying three race cars with the money, paying the casino’s rent to the building he owns for more than three years in advance and other allegations.
Andy Sanborn did not attend the hearing as his lawyer said after the hearing he’s dealing with a serious medical issue.
Casinos were prohibited from accepting COVID loans under the economic injury program, but Sanborn’s application omitted the casino’s name and changed the business description to “Miscellaneous Services.”
After the investigation, Attorney General John Formella found Sanborn unsuitable to hold a charitable gaming license, the Lottery Commission, which regulates charitable gaming, sought to revoke his license to operate the Concord Casino.
At the hearing Monday, Superior Court Judge Any Ignatius wondered why the case was before the Superior Court when another tribunal, the Lottery Commission, would be making the determination.
But Sanborn’s attorney Mark Knights said the commission has nothing scheduled. The commission refused to allow them time to prepare for the case, including the work of a forensic auditor, he said, as well as set the boundaries for discovery and any additional charges.
He said until the temporary injunction was imposed earlier this month the commission refused to rule on their motions or provide all of the evidence it produced in the investigation, violating Sanborn’s due process rights.
He also claimed the commission refused to say what the process would be and how it would be run or set limits on what is at issue.
He noted there are factual and not just legal issues, such as a constantly changing witness list.
“We need some guard rails,” Knights said, and “respectfully ask they respond to what we file.”
The commission did not invoke an emergency position to take Sanborn’s license away, he noted, but the issue should move expediently.
Assistant Attorney General Christina Wilson said they have been talking with Sanborn’s attorneys to try to resolve the issues and made an offer Thursday, to hold the hearing the first week of December, to recuse all current commission members and to find a third party hearings officer, to limit the discussion to the issue of Sanborn’s license and had turned over all the discovery information.
“We offered pretty much everything they wanted,” Wilson said, “but that was not good enough. They are trying to drag out this process.”
If the case goes beyond the end of the year and his gaming license expires, then he can avoid revocation of his license, she said and could sell the facility without that taint.
Wilson said to date, Sanborn has not reapplied for his license as holders have to do each year.
She said that does not strip the commission of its jurisdiction or authority over the matter of suitability to hold a license, she said.
“The underlying facts don’t change and we know the conduct the commission is concerned with,” Wilson said, noting the attorney general’s report outlines the issues to be heard and those issues should be litigated at the administrative level and not before Superior Court.
Sanborn’s attorney’s took issue with Wilson’s statement saying they look forward to meeting the case “head on” and Knights said “at best this investigation is sloppy.”
He said they identified the wrong account when Sanborn had plenty of money available in another, and claimed he was not profitable when he was and he raised other issues.
“The idea we are trying to run out the clock is nonsense and unethical,” Knights said. “The only reason we are making any progress is because we filed for a temporary restraining order.”
Ignatius asked both sides if an administrative hearing the first week of December was agreeable to both sides.
Knights said they will need an additional week, noting the issue is not just time, but what they have to prepare for.
Wilson said she would agree to the date but fully expected the attorneys to ask for an extension as they continue to drag out the process.
Originally the commission intended to hold a “show cause” hearing, where the burden of proof would be on Sanborn to prove the attorney general’s report was faulty, but the attorney general’s office has agreed to hold an adjudicate hearing where the burden of proof would be on the state.
Knights said that was fine provided the commission does not seek to waive certain rules, noting the commission sought to waive the rules that made the case more difficult for them before.
Wilson said she believes the rules the office has agreed to include a provision that allows rules to be waived by either party with agreement of the other, but wanted to check on that.
Ingatius also suggested a hearings officer from another state agency be found to conduct the hearing so the person would be experienced and not an outside contractor as the commission had proposed.
She said she would issue a written opinion as soon as she could to turn the case back to the Lottery Commission to work out the details, not the Superior Court.
The attorney general’s report also alludes to complaints filed against the Concord Casino that prizes were lowered during games, there were discrepancies in donations to charities, some earned less than the 35 percent of gross revenue state law requires, there was a sliding scale for rent charges to charities, surveillance cameras were inoperable at times or had wrong time stamps and table game dealers made errors.
In light of the allegations, Formella found Sanborn was not suitable to hold a charitable gaming license nor a license to hire employees at his casino, which is in the same building as The Draft restaurant and bar, he owns with his wife Laurie Sanborn.
Formella’s office is also investigating possible criminal charges and has referred the case to the U.S. District Attorney’s office in Concord.
Sanborn’s wife, Rep. Laurie Sanborn, a Bedford Republican, is House Speaker Pro Tem, chair of the House Ways and Means Committee and was chair of a commission studying the effects of changes in charitable gambling laws, but she resigned from that committee after regulators announced her husband was unfit to hold a casino license.
Andy Sanborn proposed a larger charity gambling facility on Loudon Road in Concord which was recently approved by the Concord Planning Board, but the decision is being litigated by neighbors of the proposed facility.
Andy Sanborn, a Bedford Republican, served in the state Senate for five terms, and left to run unsuccessfully for Congress in 2018.
Garry Rayno may be reached at firstname.lastname@example.org.