Parsing words at the Mass. Gaming Commission

Encore concert controversy not going away

MASSACHUSETTS LAWMAKERS MADE it pretty clear in 2014 that they wanted to protect midsize theaters from having to compete against event venues run by casinos, inserting into the gaming law that gambling licensees “shall only be permitted to build a live entertainment venue that has less than 1,000 seats or more than 3,500 seats.”

The restriction received very little attention until recently, when representatives of Medford and the Chevalier Theatre began complaining about concerts and other events held in the ballroom of the Encore Boston Harbor in Everett. Most of the events occurred pre-pandemic, but the shows are resuming again next week with a mixed martial arts fight night.

The representatives urged the Massachusetts Gaming Commission to fine Encore and halt any shows that violate the 1,000-3,500 ticket limit. They also threatened a lawsuit if Encore kept hosting the shows.

The Gaming Commission dealt with the controversy on Thursday not by addressing it head-on, but by letting its legal counsel, Todd Grossman, provide an interpretation of the law that basically would allow Encore to turn its ballrooms, lounges, and bars into concert venues of any size. That interpretation seemed amenable to the commission, which moved on to other matters with no comment. But the issue is not going away, in part because Grossman’s analysis is far from conclusive.

Grossman noted the statute allows licensed casinos to only “build” a live entertainment venue with less than 1,000 or more than 3,500 seats. He suggested nothing in the statute bars a casino from converting a ballroom or lounge into a concert facility and selling as many tickets as it wants.

Dan Rabinovitz, an attorney with Murphy & King who represents the city of Medford and the Chevalier Theatre’s booking agent, offered a very different interpretation of the law in his presentation to the Gaming Commission last week. He said Encore “built” its ballroom, and therefore the ballroom cannot be used to host entertainment events with 1,000 to 3,500 seats.

Grossman said his interpretation of the law is buttressed by a negotiated agreement between Encore and the Massachusetts Performing Arts Coalition, which represents theaters in the area. Grossman said the agreement, which was required of casino operators seeking a license from the Gaming Commission, permits the casino to use its bars, lounges, and hotel ballrooms for events, meetings, or celebrations where live entertainment is provided. 

“The hotel ballroom may be used for events that include live entertainment,” Grossman said. “There is no restriction in the agreement as to the size of any such event, either seats or patrons, the frequency of events, or any other such restrictions, though there could have been if it had been included in the agreement.”

Troy Siebels, president and CEO of the Hanover Theatre and Conservatory for the Performing Arts in Worcester, negotiated the agreement with Encore. He said Grossman’s summary of it is misleading because it focuses on a handful of words. “You have to read the whole thing,” he said.

In full, it states: “Wynn agrees that it does not currently plan to build, restore, operate or manage an indoor or outdoor, permanent or temporary live entertainment venue on or independent of the Casino Site in the Commonwealth of Massachusetts seating more than 1,000 persons, notwithstanding the fact that the Gaming Statute permits such venues seating more than 3,500 persons. The Parties acknowledge and agree that bars, lounges, common areas, hotel ballrooms, or other multi-use or meeting space within the gaming establishment or elsewhere at the Casino Site may be used for events, meetings, or celebrations that include live entertainment.”

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Bruce Mohl

Editor, CommonWealth

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

Converting a ballroom into a concert venue would appear to fit the agreement’s reference to a “temporary live entertainment venue.” As for the reference to live entertainment in ballrooms or lounges, Siebels said that was included so Encore could provide entertainment incidental to an event — like a jazz trio performing in a bar or a band at a wedding. He said it was never intended that Encore would be selling thousands of tickets to an event in its ballroom.

“It’s parsing words and it’s clearly contrary to the spirit of the gaming statute,” he said.