Mississippi Advisory Opinions December 16, 1993: AGO 000007135 (December 16, 1993)

AGO 000007135.

Gentlemen: I have received your request on behalf of the House of Representatives and the Senate of the State of Mississippi, concerning the legality of gaming on inland waters in counties bordering the Mississippi Sound. Your letter states: When the Mississippi Legislature legalized dockside gaming through the Gaming Control Act, we specifically limited casino construction along the Gulf Coast to the waters "south of the three most southern counties..." Miss. Code Ann. 97-33-1(a)(Supp. 1993). It is my understanding that your office has interpreted this language to include the Mississippi Sound and its major bays, and to exclude the rivers, creeks and bayous flowing into these larger bodies. (Opinion to Senator Vic Franckiewicz, Jr., 8/29/90). Further, the waters of the three coastal counties are defined quite differently than the navigable waters of the Mississippi River. See, for example, Miss. Code Ann. Section 27-109-1(1990) and Section 97-33-1(Supp. 1993). It is our understanding that two casino developers are now proposing to construct casinos on man-made basins at the end of lengthy canals stretched inland from the Bay of St. Louis. One of the canals stretched inland from the Bay of St. Louis. One of the canals will reportedly exceed 1200 feet in length. Because of the fact that we have prohibited casino construction on naturally occurring inland waterways, it seems logical to assume that developers are also prohibited from building casinos on man-made inland waterways only tokenly connected to the Mississippi Sound or the Bay of St. Louis. Consequently, we would like to request an opinion from your office on the following question: Does the Mississippi Gaming Control Act authorize the construction of casinos along the Mississippi Gulf Coast on inland canals and marinas dredged or created after passage of the Act? Prior to the elections on dockside gaming, the voters in Harrison and Hancock Counties were assured that casinos would not be allowed to encroach beyond the Coastal areas. Inland expansion along man-made canals would completely frustrate our efforts to limit the expansion of these casinos into inappropriate areas and would constitute a major breach of faith with the citizens in our districts Initially, please understand that statutes legalizing gambling are narrowly construed to limit a pervasion of an otherwise illegal activity. No one possesses a constitutionally protected right to utilize their property for gaming. Yet the limited resources of the State have been overwhelmed by squabbles over location rather than devoted to enforcement of the Gaming Control Act. The pressure to adopt a liberal construction of gaming laws and condone the unchecked pervasion of legalized gaming in Mississippi is harrowing. Public policy, as dictated by the Mississippi Legislature, demands a strict interpretation of the Gaming Control Act. The relevant statutory provision is repeated in sections 97- 33-1, -7, -17, -25, and -27, of the Mississippi Code of 1972, as amended. This provision legalizes gambling: On a cruise vessel as defined in Section 27-109-1 whenever such vessel is in the waters within the State of Mississippi, which lie adjacent to the State of Mississippi south of the three (3) most southern counties in the State of Mississippi, and in which the registered voters of the county in which the port is located have not voted to prohibit such betting, gaming or wagering on cruise vessels as provided in Section 19-3-79. Miss. Code Ann. Sections 97-33-1,-7,-17, -25, and -27 (Supp. 1993). The legislature has declared "it to be the public policy of this state, that: Regulation of licensed gaming is important in order that licensed gaming is conducted honestly and competitively, that the rights of the creditors of licensees are protected and that gaming is free from criminal and corruptive elements. Public confidence and trust can only be maintained by strict regulation of all persons, locations, practices, associations and activities related to the operation of licensed gaming establishments. All establishments where gaming is conducted and where gambling devices are operated, and manufacturers, sellers and distributors of certain gambling devices and equipment must therefore be licensed, controlled and assisted to protect the public health, safety, morals, good order and general welfare of the inhabitants of the state." Miss. Code Ann. Section 75-76-3(b)(Rev. ed. 1991). The commission, charged with the duty to adopt regulations "consistent with the policy, objects and purposes of this chapter, as it may deem necessary or desirable in the public interest in carrying out the policy and provisions of this chapter [Gaming Control Act]", has adopted Regulation No. 2. See Miss. Code Ann. Section 75-76-33(1)(Rev. ed. 1991). This regulation allows cruise vessels to operate at locations that meet the following criteria: Waters within the State of Mississippi which lie adjacent to the three (3) most southern counties of the State. In addition to the Mississippi Sound, this would include St. Louis Bay, Biloxi Bay and Pascagoula Bay. However, the rivers and bayous leading into these bays, including but not limited to the Jourdan River, Wolf River, Bernard Bayou, Tchoutacabouffa River, Pascagoula River and Escatawpa are not within the authorized area. In determining where the river ends and the bay begins, an imaginary line shall be drawn from the foremost land mass at the intersection of the river and bay, straight across the rivers to the foremost land mass of the intersection on the other side. On August 29, 1990, our office issued an opinion concluding that "the legislature intended to allow gambling activities on cruise vessels moored along the waterfront of the Mississippi Gulf Coast, even though that waterfront is not technically "adjacent to the State of Mississippi south of the three (3) most southern counties". One, reading the statute, does not have to be a lawyer to reach the inescapable inference that the legislature's reference to the county was to the large landmass commonly depicted, as the county line, on general use maps--id est, the waterfront of the Mississippi Sound and its three largest bays. This "common sense" interpretation of the statute, has been approved and adopted by the Mississippi Gaming Commission and the Mississippi Legislature. In 1993, the legislature re-enacted the statute, without amendment. In fact, an amendment to expand gaming into all navigable waters in the coastal counties failed. (See House and Senate Journals for 1993 Legislative Session.) It has been suggested that the phrase "which lie adjacent to the State of Mississippi south of the three (3) most southern counties in the State of Mississippi" should be characterized as mere surplusage. The effect of this interpretation would legalize gaming in all inland "waters" within the coastal counties, regardless of their size or navigability, sanctioning the absurd result of legalizing gaming in a manmade inland pond. Such an interpretation would destroy a legislative policy and entirely defeat the manifest intention and purpose of the lawmakers. One of the cardinal rules of statutory construction is to save, and not destroy, the statute. Crocker v. U.S. , 323 F. Supp. 718 (1971). Effect must be given to the "purpose and policy of the Legislature and an unwise purpose will not be imputed to the Legislature when a reasonable construction of the statute, which will purge any inequality or absurdity, can be made". Sheffield v. Reece, 28 So. 2d 745 (Miss. 1947). Accordingly, we restate the opinion of this office that operation of casinos on the Gulf Coast are legal only in waters of the Mississippi Sound, St. Louis Bay, Biloxi Bay, and Pascagoula Bay. You maintain that "it seems logical to assume that developers are also prohibited from building casinos on man-made inland waterways only tokenly connected to the Mississippi Sound or the Bay of St. Louis". You are correct. Neither the law nor the regulations differentiate between man-made and naturally occurring watercourses emptying into the Mississippi Sound or the three largest bays. The law identifies permissible sites for gaming. It logically follows, that all other sites are impermissible under current legislation. Based on the above, it is the opinion of this office that the Mississippi Gaming Control Act and the regulations adopted by the commission do not authorize the operation of casinos along the Mississippi Gulf Coast on inland canals or other artificial watercourses created after passage of the Act. The burden of proving a location suitable for gaming is on the proponent. While our office can interpret legal standards for initial consideration by the Mississippi Gaming Commission, the commission is responsible for making a factual determination of the precise boundaries of the Mississippi Sound and its three largest bays. Efforts to accommodate expanded casino development would be more effectively and efficiently focused on changing the law. Should the Mississippi Legislature wish to expand suitable locations for gaming it may do so through the legislative process. We, however, can only interpret the law as passed by the legislature; and feel restrained to do so in a restrictive and conservative manner as dictated by the public policy of the Gaming Control Act "PUBLIC CONFIDENCE AND TRUST CAN ONLY BE MAINTAINED BY STRICT REGULATION OF ALL PERSONS, LOCATIONS, PRACTICES, ASSOCIATIONS AND ACTIVITIES RELATED TO THE OPERATION OF LICENSED GAMING ESTABLISHMENTS" --Miss. Code Ann. Section 75-76-3(b)(Rev. ed 1991) We hope this sufficiently answers your inquiry. If we may be of further assistance, please do not hesitate to contact us. With kindest regards, we remain

Sincerely, OFFICE OF THE ATTORNEY GENERAL By: Mike Moore, Attorney General