EUGENE J. KOPECKY, Appellant,
IOWA RACING AND GAMING COMMISSION, Appellee.
from the Iowa District Court for Linn County, Ian K.
citizen appeals a district court judgment affirming the Iowa
Racing and Gaming Commission's declaratory order.
J. Kopecky of Ackley, Kopecky & Kingergy, L.L.P., Cedar
Rapids, pro se appellant.
J. Miller, Attorney General, David M. Ranscht and Jeffrey C.
Peterzalek, Assistant Attorneys General, for appellee.
citizen appeals from the district court's ruling on
judicial review. The district court affirmed the Iowa Racing
and Gaming Commission's declaratory order in which the
Commission used its rules to conclude that its authority
under Iowa Code chapter 99F permits it to consider the
economic effect of a new gaming operation on existing gaming
facilities when deciding whether to issue a new gaming
license. On appeal, we hold the rule allowing the Commission
to consider the economic effect of a new gaming operation on
existing gaming facilities when deciding whether to issue a
new gaming license is not "[b]eyond the authority
delegated to the agency by any provision of law or in
violation of any provision of law" under section
Background Facts and Proceedings.
March 2013, the citizens of Linn County approved a referendum
to permit gambling games in the county. Soon thereafter, an
organization in Linn County applied to the Commission for a
license to operate a new gambling structure. The Commission
ordered two independent market feasibility studies, and both
studies concluded the casino market in Iowa was not
underserved, and a new casino would cannibalize revenue from
existing gambling facilities. Relying on the market studies
and citing the significant economic impact granting a new
gambling license could have on existing facilities, the
Commission denied the organization's application in April
March 9, 2015, Eugene Kopecky, a resident of Linn County,
filed a petition for declaratory order with the Commission.
Kopecky was not associated with the organization whose
application for a license was denied in 2014. In his
petition, he stated he "plans to file an application
with the [Commission] to secure a gambling license to conduct
gambling games in a licensed gambling structure in Linn
County, Iowa." However, he believed it would "serve
no purpose for [him] to file an application for a
license" because the Commission denied a previous
application due to "the negative impact on existing
license holders in other Iowa counties."
contended the Commission's consideration of that factor
in denying an application is "contrary to Chapter 99F of
the Iowa Code" and that it is necessary to determine the
proper meaning and construction of the Code as it relates to
issuing a gaming license when the residents of a county have
approved a gambling referendum. Thus, Kopecky asked the
Commission to answer two questions:
Question Number One:
Whether or not the [Commission] can use the existence of a
gambling license in one county, or the impact on an existing
gambling license in one Iowa county, when considering whether
or not to issue a gambling license in another (different)
Question Number Two:
If the [Commission] has adopted administrative rules that are
contrary to Chapter 99F of the Iowa Code are those
administrative rules null and void?
asserted the answer to question one is no, and the answer to
question two is yes.
April 9, the Iowa Gaming Association (IGA), an association
comprised of eighteen existing gambling licensees, intervened
in the declaratory order proceedings because the answers to
Kopecky's questions would affect the existing licensees.
In its brief in support of its petition for intervention, the
IGA asserted that the Commission has broad powers to regulate
all gambling operations under Iowa Code chapter 99F and that
Kopecky misinterpreted the Code as well as the
Commission's rules. After hearing oral argument from
Kopecky and the IGA at its June meeting, the Commission
announced its decision.
Commission answered Kopecky's first question in the
affirmative, concluding Iowa Code chapter 99F and the
administrative rules "allow and/or require" it to
consider the impact on an existing casino in one county when
considering whether or not to issue a gambling license in
another county. With respect to Kopecky's second
question, the Commission determined it did not have
jurisdiction to answer the question, as it is within the
court's purview to determine whether an administrative
rule is ...