Can the Maine Harness Racing Commission allow telephone wagering at licensed tracks without a statute that authorizes it?

Plain-English summary

The Commissioner of the Department of Agriculture, Food & Rural Resources asked the Attorney General whether the Maine Harness Racing Commission could adopt a rule authorizing telephone wagering at facilities the Commission licenses. Attorney General G. Steven Rowe answered no.

The opinion rested on two intertwined principles. First, the Maine Law Court has held in Penobscot Nation v. Stilphen that all gambling in Maine is illegal unless expressly permitted by statute. So the question is not whether the law forbids telephone wagering; it is whether a statute affirmatively authorizes it. Second, the relevant statutes (8 M.R.S.A. §§ 275-B and 275-C) require pari-mutuel pool sales to take place "within the enclosure of the licensee's racetrack or at the licensee's off-track betting facility." The AG read that geographic limitation as a hard requirement of physical presence: the seller and the purchaser both have to be inside the licensed track or off-track betting facility for the sale to be authorized. A wager placed by telephone from elsewhere does not satisfy that requirement.

The AG also rejected the argument that maintaining a pre-funded account at the track moves the location of the "sale" inside the facility. The opinion treated the bettor's communication of an offer to wager as the moment the sale happens; if that communication comes from outside the track, the sale is outside the track. The AG cited federal Wire Act cases (United States v. Cohen, United States v. Ross), AT&T v. Coeur D'Alene Tribe, and Minnesota's Rice v. Connolly as instructive (though not binding) authority reaching the same conclusion in related contexts.

Finally, the AG explained that the Commission's general rulemaking authority under 8 M.R.S.A. §§ 268 and 279-A does not authorize a rule that expands wagering beyond what the Legislature has expressly permitted. Maine's Administrative Procedure Act requires that rules cite with particularity the statute that authorizes them, and courts must invalidate any rule that exceeds an agency's statutory authority. Telephone wagering not being mentioned in the harness racing statutes, the Commission could only adopt rules prohibiting it, not authorizing it.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is pari-mutuel wagering?

A betting system where all wagers on a race are pooled, the track takes a cut for expenses and taxes, and the remaining pool is distributed proportionally to those who picked winners. Maine permits pari-mutuel betting on harness races through Chapter 11 of Title 8 (8 M.R.S.A. § 261-A et seq.).

Why did the AG read § 275-B as requiring physical presence?

The statute's plain language limits sales to within "the enclosure of the licensee's racetrack" or "the licensee's off-track betting facility." The AG applied the Law Court's first canon of statutory construction (Harding v. Wal-Mart Stores) and read those geographic terms as imposing a physical-presence requirement that telephone wagering cannot satisfy.

What about an account-wagering system where the bettor's money is already at the track?

The AG rejected that workaround. The "sale" is the moment the bettor communicates the offer to place a wager. If that communication comes from outside the track, the sale is happening outside the track, regardless of where the money is held.

Did the Law Court ever weigh in directly?

Not on this exact question by 2001. The AG cited Penobscot Nation v. Stilphen for the broader gambling-is-prohibited-unless-permitted rule and Harding for the plain-meaning canon. The persuasive federal and out-of-state authorities (Cohen, Ross, Coeur D'Alene, Rice) were not binding on Maine courts but supported the AG's reading.

Could the Legislature have authorized telephone wagering?

Yes. The AG's reasoning was that the Commission cannot do it by rule because no statute authorizes it. A statutory amendment expressly permitting telephone or account wagering would change the analysis.

Background and statutory framework

Maine's Chapter 11 of Title 8 authorizes harness racing and pari-mutuel betting at licensed tracks and off-track betting facilities. § 275-B governs the sale of pari-mutuel pools, restricting sales to racetracks (licensed under § 271) and OTB facilities (licensed under § 275-D). § 275-C governs common pari-mutuel pools for simulcast races and contains the same geographic limitation. § 278 bars minors from pari-mutuel enclosures; § 275-D includes age-of-entry rules. The AG noted that these access-control statutes would be unenforceable if wagers could be placed from outside the licensed premises.

The Commission's rulemaking authority comes from 8 M.R.S.A. §§ 268 and 279-A. Maine's Administrative Procedure Act at 5 M.R.S.A. § 8052(8) requires rules to refer with particularity to the statute on which they rest. § 8058(1) requires courts to invalidate any rule that exceeds agency authority. The combination forecloses an agency from filling silences in the underlying authorizing statute by rule.

Citations

• 8 M.R.S.A. § 268 (Commission powers and rulemaking)
• 8 M.R.S.A. § 275-B (sale of pari-mutuel pools, location requirement)
• 8 M.R.S.A. § 275-C (common pari-mutuel pools for simulcast)
• 8 M.R.S.A. § 275-D (off-track betting facility licensing)
• 8 M.R.S.A. § 278 (minors not admitted to pari-mutuel enclosures)
• 8 M.R.S.A. § 279-A (Commission rulemaking)
• 5 M.R.S.A. § 8052(8) (APA rule citation requirement)
• 5 M.R.S.A. § 8058(1) (judicial invalidation of ultra vires rules)
• Penobscot Nation v. Stilphen, 461 A.2d 478, 482 (Me. 1983)
• Harding v. Wal-Mart Stores, Inc., 2001 ME 13, 765 A.2d 73
• Child Development Services-Cumberland County v. Attorney General, 2000 ME 177, 760 A.2d 630
• Rockland Plaza Realty Corp. v. City of Rockland, 2001 ME 81
• In re Wage Payment Litigation, 2000 ME 162, 759 A.2d 217
• United States v. Cohen, 260 F.3d 68 (2d Cir. 2001) (federal Wire Act, 18 U.S.C. § 1084)
• United States v. Ross, 1999 WL 782749, 1999 U.S. Dist. LEXIS 22351, No. 98-Cr. 1174-1 (S.D.N.Y. Sept. 16, 1999)
• AT&T Corp. v. Coeur D'Alene Tribe, 45 F. Supp. 2d 995, 1000-05 (D. Idaho 1998)
• Rice v. Connolly, 488 N.W.2d 241, 246-48 (Minn. 1992)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2001/ag_20011210.pdf

Original opinion text

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
6 State House Station
Augusta, Maine 04333-0006

G. Steven Rowe
Attorney General

December 10, 2001

Robert W. Spear, Commissioner
Department of Agriculture, Food & Rural Resources
28 State House Station
Augusta, ME 04333-0028

Re: Rule-making Authority

Dear Commissioner Spear:

You have asked for an opinion from this office as to whether the Maine Harness Racing Commission may authorize telephone wagering at facilities licensed by the Commission through rules adopted pursuant to Title 8 M.R.S.A. §§ 275-B and 275-C (1997 & Supp. 2000) absent express statutory approval of telephone wagering. For the reasons that follow, I have determined that the Commission lacks the authority to authorize telephone wagering.

The Maine Law Court has reaffirmed what is clear from Maine's statutory framework, all gambling in Maine is illegal unless expressly permitted by statute. Penobscot Nation v. Stilphen, 461 A.2d 478, 482 (Me. 1983). Accordingly, I have examined the extent of wagering activity expressly authorized by our Legislature. There is no such express authorization found in Maine statute, including Title 8, Chapter 11 (Harness Racing); Title 8, Chapter 14-A (Lottery); Title 17, Chapters 13-A (Beano or Bingo); Title 17, Chapter 14 (Games of Chance); or Title 17-A, Chapter 39 (Unlawful Gambling). Nor do the provisions you cite, Title 8 M.R.S.A. § 275-B and § 275-C, contain such an express authorization. To the contrary, an analysis of these statutes provides additional support for the conclusion that Maine law does not authorize telephone wagering.

Title 8 M.R.S.A. §§ 261-A et seq. (Chapter 11) authorizes harness racing within the State of Maine. Chapter 11 authorizes wagering in the form of the sale of pari-mutuel pools or common pari-mutuel pools. Section 275-B, "Sale of pari-mutuel pools," provides as follows:

The following persons may sell pari-mutuel pools on horse racing in accordance with this chapter and rules adopted by the commission.

1. Racetracks. A person licensed pursuant to section 271 to conduct harness horse racing with pari-mutuel betting may sell pari-mutuel pools within the enclosure of the racetrack where the licensed race or race meet is conducted.

2. Off-track betting facility. A person licensed pursuant to section 275-D to operate an off-track betting facility may sell pari-mutuel pools at that licensed facility.

(Italics provided). Section 275-C, "Common pari-mutuel pools," provides, in relevant part,

1. Authority. A person authorized to sell pari-mutuel pools on horse racing may sell common pari-mutuel pools for simulcast races. The sale must be conducted within the enclosure of the licensee's racetrack or at the licensee's off-track betting facility.

(Italics provided).

The issue turns on whether sections 275-B and 275-C require all aspects of the sale to take place while the parties to the sale are physically present within the enclosure of the racetrack or physically at the off-track betting facility. The Law Court has repeatedly stated that the first canon of statutory construction is to "look first to the plain meaning of the statutory language as a means of effecting the legislative intent." If the meaning of the statute is plain, it must be interpreted "to mean exactly what is says." Harding v. Wal-Mart Stores, Inc., 2001 ME 13, ¶ 9, 765 A.2d 73, 75 (internal citations omitted).

The terms of sections 275-B and 275-C, which authorize the sale of pari-mutuel and common pari-mutuel pools, also limit where these sales take place. Each statute includes language requiring that the sale take place "within the enclosure of the licensee's racetrack or at the licensee's off-track betting facility." 8 M.R.S.A. §§ 275-B(1) and 275-C(1). The Legislature could easily have crafted the statutes without this limitation, but did not, and this language cannot be disregarded. "Unless the statute itself reveals a contrary legislative intent, the plain meaning of the language will control its interpretation. To that end, the particular words used in the statute must be given their plain, common and ordinary meaning." Child Development Services-Cumberland County et al. v. Attorney General, 2000 ME 177, ¶ 6, 760 A.2d 630, 631 (citations omitted). The Law Court has often relied on dictionary definitions where the statutory scheme provides no definition specific to the laws under scrutiny. Rockland Plaza Realty Corporation v. City of Rockland, et al., 2001 ME 81, ¶ 12. "Sale" is defined as "the act of selling; exchange of property of any kind, or of services, for an agreed sum of money or other valuable consideration." Webster's New World Dictionary 1256 (Second College Edition 1980). Pursuant to the plain language of the statute, the sale of the pari-mutuel pools, in other words, the exchange of the purchaser's money for the chance to win a larger return, must take place "within the enclosure of the licensed track or at the licensee's off-track betting facility."

The fact that the sale must take place within the enclosure of the licensed track or at the licensed off-track betting facility is in keeping with entire regulatory scheme of Chapter 11. Limitations such as those found in sections 275-D(7) ("Operation of facility"; limitations on access of minors to premises) and 278 ("Minors"; minors not admitted to pari-mutuel enclosures) would make no sense and become unenforceable should the statute be read to allow wagers to be placed from outside the premises of the track or off-track betting facility by electronic, telephonic or other means. The statute must be interpreted "in the context of the statutory scheme in which it is found." In re Wage Payment Litigation, 2000 ME 162, ¶ 4, 759 A.2d 217, 221. Because the plain meaning of the text, viewed both alone and in context, resolves these interpretive issues, there is no need to resort to extrinsic factors to determine the Legislature's intent. Id. (citations omitted). My review of the plain language of the statutes leads me to conclude that the law requires the physical presence of the seller and purchaser at the licensed racetrack or licensed off-track betting facility. This requirement precludes telephone wagering.

The argument may be made that requiring a purchaser to maintain an account at the licensed track or off-track betting facility, so that the purchaser's consideration for the wager is already at the track or facility prior to the purchase of the pari-mutuel pool (or placing of the wager), places the location of the sale entirely within the track or facility. This argument disregards the nature of the transaction that occurs when an individual places a call or otherwise communicates with the track or facility from a different location. Quite simply, there is no sale or wager without the communication from the purchaser or bettor. It is that communication that initiates the transaction. If that communication, which constitutes an offer to place a wager, make a bet or purchase a pari-mutuel pool, comes from outside the track or OTB, the sale is not being made "within the enclosure of the licensed track or at the licensee's off-track betting facility."

Courts in other jurisdictions have rejected arguments permitting the use of the telephone or other electronic means of placement of a bet or the transmission of a wager (in the language of the Maine statute, the "sale of pari-mutuel pools") in a number of different contexts. While these decisions are not binding in the interpretation of Maine statutes, their reasoning and conclusions are instructive. See, e.g., United States v. Cohen, 260 F.3d 68 (2nd Cir. 2001) (In an appeal from conviction for violations of federal Wire Act, 18 U.S.C. § 1084, the court rejected the argument that defendant's company, World Sports Exchange, did not transmit wagers via telephone or internet from New York even though WSE required bettors to establish accounts with WSE in Antigua.); United States v. Ross, 1999 WL 782749, 1999 U.S. Dist. LEXIS 22351, No. 98-Cr. 1174-1 (S.D.N.Y. Sept. 16, 1999) (In applying 18 U.S.C. § 1084, the court distinguished bets placed over the telephone from information assisting in the placing of bets or wagers, and rejected defendant's claim that no bet comes into existence until payment is made.); AT&T Corp. v. Coeur D'Alene Tribe, 45 F.Supp.2d 995, 1000-05 (D. Idaho 1998) (Where National Indian Lottery would rely on interstate toll-free telephone number so that players could order chances while outside the limits of the Reservation, it is not gaming "on Indian lands," even though purchaser has account with the Tribe on the Reservation. The lottery was thus subject to state law rather than Indian Gaming Regulatory Act.); Rice v. Connolly, 488 N.W.2d 241, 246-48 (Minn. 1992) (The court found that bets not physically placed at a racetrack cannot be "on-track" pari-mutuel bets "no matter how they are transmitted to track, electronically recorded, or accepted into pool of funds," and that legislation authorizing off-track teleracing and regulations allowing telephone account wagering system were beyond scope of authorized wagering.), rehearing denied, 1992 Minn. LEXIS 247 (Sept. 2, 1992).

Guided as I am by the plain language of the statutes, I conclude that bets can only be placed by persons physically located within the enclosure of the racetrack or at the licensed off-track betting facility, and that bets communicated to the track or facility from another location, by whatever means, are not authorized by the Maine Legislature. The existence of rulemaking authority does not change that result.

The Maine Legislature delegates rule-making authority to state agencies. The Maine Administrative Procedure Act requires agencies "to refer with particularity" to the statute that serves as the basis for any rule. 5 M.R.S.A. § 8052(8). Rules function to implement and interpret statutes, but not to expand the parameters of the law set out by the Legislature. Maine courts are required to declare invalid any rule that "exceeds the rule-making authority of the agency." 5 M.R.S.A. § 8058(1). Title 8 M.R.S.A. § 268 and § 279-A grant the Harness Racing Commission rule-making authority. Telephone wagering is not mentioned in these statutes, and is thus not specifically authorized by them. The Harness Racing Commission thus has no authority to adopt rules regulating telephone wagering, except to the extent that any such rules prohibit the activity.

Please let me know if you have further questions.

G. Steven Rowe
Attorney General