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Judge dismisses lawsuit against Penn National

A judge in Columbus has dismissed a lawsuit that sought to prevent Penn National Gaming from relocating live horse racing to Dayton from Toledo.

The former owners of Lebanon Raceway filed an administrative appeal against the Ohio State Racing Commission for permitting Penn National to transfer its horse racing license from Raceway Park in Toledo to the new Hollywood Gaming at Dayton Raceway.

The former owners argued the transfer violated a law prohibiting the commission from allowing racing programs to take place at the same time at any two tracks located within 50 miles of each another.

But Franklin County Common Pleas Judge Colleen O’Donnell ruled the litigants have no standing to appeal the commission’s decision. She dismissed the lawsuit for lack of jurisdiction.

Dennis Concilla, an attorney representing the former owners, said there are other legal avenues his clients could pursue, but it is unclear whether they will take further action.

“We need to sit down, talk to our clients and see how they want to proceed,” he said.

Penn National, which was a co-defendant in the case, praised the court’s ruling.

“We have no way of knowing whether or not Lebanon will appeal, but if it does, we will continue to make what we believe is a very strong legal case,” said spokesman Bob Tenenbaum.

In 2012, the former owners of Lebanon Raceway — Lebanon Trotting Club and Miami Valley Trotting Inc. — sold their horse track and racing permits to Miami Valley Gaming, which relocated the track and operations to Turtlecreek Twp.

The same year, Penn National filed an application to relocate its track to Dayton from Toledo. The Dayton racino, which plans to open next month, is about 26 miles from the Warren County track.

In May 2013, the former owners filed an appeal challenging the legality of the racing commission’s decision allowing for the relocation to Dayton.

The group said the transfer cost them about $10 million, because that amount of their $70 million purchase agreement with Miami Valley Gaming was contingent upon no track relocating within the restricted geography for five years.

But Judge O’Donnell ruled the trotting groups were not a party to the commission’s action and had no legal right to appeal. O’Donnell noted in her ruling the relocation to Dayton hinges upon the facility complying with the rules forbidding racing programs taking place at the same time.

The racing commission has made it clear it will not authorize overlapping racing dates for Miami Valley Gaming, Scioto Downs in Columbus and Hollywood Dayton Raceway, a Penn National spokesman said.

Harness racing at Dayton Raceway is scheduled to begin Oct. 3.

The three tracks are in discussions to coordinate race dates to create a racing circuit for 2015 prior to applying for next year’s racing dates with the commission, officials said.

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