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Davric Maine Corp. v. Bangor Historic Track
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 102
Docket:	Cum-99-679
Argued:	May 3, 2000	
Decided:	May 26, 2000

Panel:CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

DAVRIC MAINE CORPORATION

v.

BANGOR HISTORIC TRACK, INC., IVAL CIANCHETTE and  
STATE HARNESS RACING COMMISSION

RUDMAN, J.
	
	[¶1]  Davric Maine Corporation, the owner and operator of
Scarborough Downs, appeals from a judgment entered in the Superior Court
(Cumberland County, Crowley, J.) granting Bangor Historic Track's (BHT),
Ival Cianchette's, and the State Harness Racing Commission's motion to
dismiss Davric's appeal from a decision of the Commission as untimely.  We
affirm the judgment.

I. FACTS

	[¶2]  On December 7, 1998, the State Harness Racing Commission
issued its decision on licensing applications and race dates for the 1999
harness racing season.  Prior to the decision, the Commission had held an
adjudicatory hearing on November 19 and 20, 1998, to consider
applications for licenses and race dates. At this hearing, all interested
parties were allowed to intervene.  The Commission reissued licenses to
BHT and Scarborough Downs pursuant to 8 M.R.S.A. § 271 (1997).{1}  In its
decision, the Commission issued live race dates to several tracks under two
different headings, "FAIRS AND EXTENDED MEETS"  and "COMMERCIAL
TRACKS." BHT and Scarborough Downs were the only two entities granted
live race dates under the "COMMERCIAL TRACKS" heading.  Davric objects
to the Commission's classification of BHT as a commercial track because the
Commission never heard evidence to support a finding that BHT was a
commercial track{2} and because BHT does not satisfy the requirements of 8
M.R.S.A. § 275-A.  Section 275-A of Title 8 defines a commercial track as:

1. Commercial Track.  "Commercial Track" means a harness
horse racing track licensed under this chapter to conduct
harness horse racing with pari-mutuel wagering that:

A. If the population within the 50-mile radius of the
track is 300,000 or more, conducted racing on more
than 100 days in the previous 2 calendar years,
except that if a racetrack that qualified as a
commercial racetrack under this subsection goes out
of business, one new racetrack opening in a location
with a population within a 50-mile radius of the
track of 300,000 or more qualifies as a commercial
track if it races more than 100 days in a calendar
year; or

B. If the population within the 50-mile radius of the
track is less than 300,000, conducted racing on
more than 25 days in the previous 2 calendar years,
except that if a racetrack under this subsection goes
out of business, one new racetrack opening in a
location with a population within a 50-mile radius of
the track of 300,000 or less qualifies as a
commercial track if it races more than 25 days in a
calendar year. 

8 M.R.S.A. § 275-A (1997 & Supp. 1998).{3}  Davric maintains that BHT does
not fulfill the requirements of section 275-A(1)(B) because the population in
the 50-mile radius is greater than 300,000.{4}  BHT was issued 37 race dates
for the 1999 season.  Thus, the population of the 50-mile radius of Bangor
must be less than 300,000 for BHT to qualify as a commercial track pursuant
to section 275(1)(B).  Davric's concern over BHT's status as a commercial
track arises out of the Commission's distribution of two monetary funds: (1)
the Off-Track Betting (OTB) fund which proportionally distributes monies
from wagers at off-track betting facilities to commercial tracks that provide
simulcast transmission of live racing in Maine, see 8 M.R.S.A. § 295 (Supp.
1999);{5} and (2) the Commercial Meet Account (CMA) which distributes a
portion of the wagered money to "commercial meets" or "commercial
licensees" proportional to the handles at each track.  See 8 M.R.S.A. §
287(2) (Supp. 1999).{6}  If BHT lost its classification as a commercial track,
Davric would receive a larger portion of the OTB and CMA funds because
Davric and BHT are the only two commercial tracks in the state.  
	[¶3]  The Commission, which concluded hearings for licensing and
race dates on November 20, 1998, later reopened those hearings, under its
unique rules, on discrete issues after receiving requests to address certain
specific topics.  On December 18th, Northern Maine Fair Association and
BHT requested the Commission to reconsider its December 7, 1998
decision concerning their live race dates and BHT's request for simulcast
wagering.  On January 14, 1999, Davric asked the Commission to modify the
conditions it imposed on Davric's license, to award additional race dates,
and to stay the effect of conditions it imposed on Davric's license.  In its
letter dated January 14, 1999, Davric did not ask the Commission to
reconsider BHT's designation as a commercial track.  Davric first raised the
issue of BHT's commercial track status on January 25, 1999, when it
submitted a letter to the Commission stating that it had received
information that the 50-mile radius surrounding BHT contained a population
greater than 300,000 and, therefore, BHT did not qualify as a commercial
track and was not entitled to monies distributed from the CMA or OTB
funds.
	[¶4]  The Commission held a hearing on February 25, 1999, to
discuss Davric's ability to meet the conditions imposed upon it.  The
Commission also allowed Davric to raise the issue of BHT's status as a
commercial track for the limited purpose of helping the Commission to
determine whether it needed to reopen the race date hearings.  If BHT's
commercial track designation was in jeopardy, the Commission would have
to reopen the race date hearings and grant Davric more race dates;
otherwise, race tracks in Maine would not be allowed to hold simulcast
racing in the 2000 race year.  Chapter 11 of Title 8-the chapter which
governs harness racing-requires commercial tracks in the state to hold a
total of 150 live race dates per year before the Commission may allow
simulcast racing.  See 8 M.R.S.A. § 275-N (1997 & Supp. 1999).{7}  At the
February 25th hearing, the Commission stated that "in its decision making
process [when it granted the licenses in December 1999, it] contemplated
licensing facilities as commercial tracks or as other types of tracks."
	[¶5]  The Commission declined to reopen the race date hearing and
allowed its determination that BHT was a commercial track to stand for the
1999 race year.  The Commission also stated that Davric could raise the
issue again at the 2000 hearing.{8}  Davric then filed a complaint in the
Superior Court, appealing the Commission's decision concerning the race
dates and the designation of BHT as a commercial track and raising claims
of unjust enrichment and conversion against BHT and Ival Cianchette,
personally.  The defendants filed a motion to dismiss Davric's complaint. 
The court granted that motion on the basis that Davric's appeal was
untimely.  After finding the appeal untimely, the court dismissed Davric's
independent claims as barred by res judicata, the Commission's decision
being final.  This appeal followed.

II. STANDARD OF REVIEW

	[¶6]  We ordinarily review a motion to dismiss by examining the
complaint in a light most favorable to the plaintiff and accepting the material
facts of the complaint as true.  See Brown v. Maine State Employees
Association, 690 A.2d 956, 958 (Me. 1997).  In the present case, however,
we do not make any favorable inferences in favor of Davric because the
motion to dismiss is based on the subject matter jurisdiction of the court. 
See Hodgdon v. U.S., 919 F.Supp. 37, 38 (D.Me. 1996) (stating that when a
party challenges the jurisdiction of the court pursuant to Fed. R. Civ. P.
12(b)(1), the "court does not draw inferences favorable to the pleader, but
should consider any material outside the pleadings submitted by the pleader
and the movant").   

III.  SUBJECT MATTER JURISDICTION

	[¶7]  Davric contends that the court had subject matter jurisdiction
because the licensing and race date decision did not address BHT's status as
a commercial track.  The Superior Court found that the Commission did
determine BHT's status as a commercial track at the licensing and race date
hearing in November.  The court was correct in its conclusion.
  
A.  Commercial Track Determination

	[¶8]  Davric asserts that the court erred because 8 M.R.S.A. § 271
does not require the Commission to determine whether the track is a
commercial track pursuant to section 275-A before it issues a license. 
Section 271, however, does require the Commission to consider whether all
the statutory requirements of the chapter are satisfied before it issues a
license.  See 8 M.R.S.A. § 271(1).  Section 271(1) provides that the
Commission may issue a license once "the commission is satisfied that all of
this chapter and rules prescribed by the commission have been substantially
complied with during the past year and will be fully complied with during
the coming year. . ."  See id.  
	[¶9]  Further, the record manifests that the Commission did analyze
whether BHT was a commercial track pursuant to section 275-A.  The
Commission noted, at the February 25th hearing, that it considered what
types of tracks it was licensing when it issued licenses and race dates.  More
importantly, when the Commission listed BHT as a commercial track on the
race date list and simultaneously issued its license, the Commission
explicitly expressed its judgment that BHT was a commercial track. 
Implicit in this statement is the Commission's conclusion that BHT
substantially complied with all the requirements of Chapter 11, including
meeting the definition of a commercial track pursuant to section 275-A(1). 
See 8 M.R.S.A. § 271(1); Driscoll v. Gheewalla, 441 A.2d 1023, 1029-30
(Me. 1982) (upholding agency finding because record implicitly supported
such a finding even though no express finding existed).
	[¶10]  Section 275-N further supports the conclusion that the
Commission found BHT to be a commercial track.  Section 275-N requires
that the commercial tracks in the state hold a total of 150 live race dates in
the preceding calendar year before the Commission may allow interstate
simulcasting or off-track betting.  See 8 M.R.S.A. § 275-N.  The Commission
issued Davric 138 live race dates and BHT 37 live race dates.  Implicit in the
Commission's allotment of less than 150 live race dates to Davric is the
Commission's determination that BHT was a commercial track; otherwise,
the simulcasting and off-track betting would not be allowed for the 2000
race year.  See id.; Driscoll, 441 A.2d at 1029-30.  Thus, the Commission
made a final decision concerning BHT's status as a commercial track in its
decision dated December 7, 1998.{9} 
 
B. Timeliness	
  
	[¶11]  The court determined that it did not have subject matter
jurisdiction to review the Commission's determination that BHT was a
commercial track because Davric's appeal was not made within thirty days of
the Commission's decision as required by 5 M.R.S.A. § 11002(3) (1989).{10} 
Statutory limitations on appeal periods are jurisdictional.  See Brown v.
State, 426 A.2d 880, 888 (Me. 1981).  The December 7th decision
specifically notifies the parties that appeal to the Superior Court must be
made within thirty days of the receipt of the decision.  The Administrative
Procedures Act requires the party appealing a final agency action to appeal
within thirty days of notice.  See 5 M.R.S.A. § 11002(3).  Davric's Superior
Court appeal was not filed until March 1, 1999-eighty-three days after the
agency's final decision.  Davric did not even raise the issue as to BHT's status
before the Commission until January 25, 1999-forty-nine days after the
decision was rendered.  
	[¶12]  Davric argues that its appeal was timely because the agency's
final decision was on January 25, 1999, the last date of the hearings, not on
the date the decision was issued.  This argument lacks merit because the
Commission did not re-open the general hearing on January 25, 1999, but
rather re-opened discrete portions of the hearing to address the requests
for reconsideration that it received.  BHT's status as a commercial track was
not among the list of requests for reconsideration.  Moreover, after the
Commission received a request from Davric to review BHT's status as a
commercial track on January 25, 1999, the Commission allowed Davric a
hearing to assist the Commission in determining whether it was necessary
to re-open the BHT issue.  The Commission determined that its December
7th decision should stand because Davric did not seasonably raise the issue.
The Superior Court correctly found that Davric's appeal was untimely.
	[¶13]  The other issues raised by Davric do not merit discussion.  
	The entry is:
Judgment affirmed.