Andy Sanborn's legal team accuses state of stalling Concord Casino sale

Laurie and Andy Sanborn own The Draft Sports Bar and Grill and Concord Casino located on South Main Street.

Laurie and Andy Sanborn own The Draft Sports Bar and Grill and Concord Casino located on South Main Street. Monitor file

By SRUTHI GOPALAKRISHNAN

Monitor staff

Published: 07-10-2024 1:59 PM

Modified: 07-10-2024 5:19 PM


Concord Casino has a buyer lined up, but attorneys for Andy Sanborn, operator of the casino on South Main Street, argue that the Lottery Commission and Attorney General have been stalling the sale in bad faith.

But the state has vehemently denied intentionally holding up the sale.

Weeks of discussions and hearings have yielded little clarity regarding the roles of the Lottery Commission and the Attorney General in the sale process. The possible criminal investigation against Sanborn for the pandemic relief fund fraud has also made buyers hesitant to proceed with the sale.

Sanborn’s legal team has expressed frustration over what they say are the consistent delays in securing timely responses to emails and meetings with the potential buyer, leaving the sale process frozen.

“If they really truly wanted the deal and go through they could solve this in 15 minutes,” said Zachary Hafer, representing Sanborn and his business, Win Win Win LLC, which owns Concord Casino, during a status hearing on Wednesday morning. “They don’t and so they are continuing to do the types of stuff they’ve been doing since they lost in December.”

A December ruling ordered Concord Casino to be shut down and sold after it was discovered that Sanborn had fraudulently applied for and misused $844,00 in pandemic relief funds intended for struggling small businesses.

However, the Lottery Commission sought to revoke Sanborn’s license entirely.

Initially, Sanborn faced a deadline of June 27 to sell the casino, which was extended to July 18 due to ambiguity over the term “sale pending” in the December ruling.

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Hearing officer Gregory Albert extended the deadline to Sept. 30 after Sanborn’s Win Win Win LLC presented substantial evidence of an imminent sale.

Responding to Hafer’s claim of stalling, Mark Dell’Orfano, representing the Lottery Commission’s Investigation and Compliance Division through the Attorney General’s office, denied the allegations.

“I think that the whole false narrative that we somehow lost the December hearing, or that we’ve acted in bad faith when quite frankly, everything that we’ve done has been aboveboard,” said Dell’Orfano “We’re having a really hard time reconciling their arguments with the reality.”

Since August, when the joint investigation by the Attorney General’s office and the Lottery Commission found Sanborn “unsuitable” for charitable gaming, both parties have engaged in mutual accusations.

Judge Albert, after hearing the opening remarks from both parties, observed that despite their differing positions, they found common ground more frequently than not.

“We may be saying it a slightly different way, but I really do genuinely believe that there’s an awful lot of agreement there and there’s also an awful lot of bad blood,” said Judge Albert.

Concerns for potential buyers

During the meeting, the Lottery’s legal team pushed for an end to the closed-door hearings held over the past month, pointing to the extension granted to Sanborn.

However, Sanborn’s legal team objected, arguing that the hearings had established an open channel of communication that was previously absent.

Hafer also requested that Judge Albert issue an order restricting the roles of the Lottery Commission and Attorney General to assessing suitability, rather than micromanaging the sale agreement.

Judge Albert indicated that by Friday, he would decide whether an order regarding the state’s role in finalizing the sale agreement should be made.

In meetings between the buyer and the Lottery Commission, there has been no clear clarification on whether the Attorney General has the authority to make line edits to the sale agreement. However, the buyer has been cautioned that the Attorney General may raise concerns about certain terms.

Dell’Orfano argued that restricting the Lottery Commission’s role in the sale agreement would establish a detrimental precedent. Instead, he suggested a collaborative approach involving the buyer, seller, and Lottery Commission.

“If the Lottery is hamstrung with unclear bounds as to what it can and can’t say to people because what will be interpreted as a line-item veto as opposed to hey, look, we would tell this to anybody else. That sounds like a trial someday in the future, which just is bad for everybody,” he said.

Another recurring issue raised by Sanborn’s legal team is whether the new owner of Win Win Win LLC could be liable in case of a criminal investigation involving the current owner, Sanborn, or the business prior to acquisition.

This issue remained unresolved after Wednesday’s hearing.

Uncertainty about whether a future buyer could face criminal charges related to Sanborn’s use of pandemic relief funds has deterred potential buyers from finalizing the sale agreement.

Among the several buyers initially interested in acquiring Concord Casino, one prospective buyer communicated via email to the commission their decision to withdraw from the deal due to several concerns.

These concerns, revealed through records obtained by the Monitor via a right-to-know request, include zoning ordinances enacted by the Concord city council affecting casinos, potential criminal investigations involving Win Win Win LLC and challenges in identifying suitable locations for expanding casino operations to accommodate historical horse racing machines.

Impact on charities

With the closure of Concord Casino, New Hampshire now has 13 operational casinos.

Even before the closure, several nonprofits and charities were competing for venue space at casinos in New Hampshire to benefit from the 35% of total gambling revenue generated on charity gaming days.

The situation has worsened since the casino shutdown.

Dell’Orfano contends that the sale Sanborn is attempting to finalize serves Sanborn’s commercial interests rather than the public good.

However, Attorney Adam Katz, representing Sanborn, argues that the sale is indeed in the public interest. He said that if the sale is delayed, hundreds of thousands or possibly millions of dollars that could benefit the state or charity will be lost.

But Concord Casino has recorded the lowest earnings among all casinos in the state over the past three years.

In 2023, its earnings were reported at $518,930, down from $900,000 in 2022 and almost $1 million in 2021. These figures exclude operational expenses, payouts to prize winners, contributions to nonprofits, and payments to the Lottery Commission.

“It can be said that their spite against Mr. Sanborn outweighs their commitment to uphold a regimen that is meant to generate revenue for the state and charities,” said Katz. “It actually sort of speaks volumes about why we need the hearing officer’s involvement.”