June 12, 2012 – La Mesa Racetrack & Casino, Racetrack Gaming Operator’s License No. R-009 v. State of New Mexico Gaming Control Board, Nos. 31,156 & 30,862

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: June 12, 2012
NOS. 31,156 & 30,862 (consolidated)
LA MESA RACETRACK & CASINO,
RACETRACK GAMING OPERATOR’S
LICENSE NO. R-009,
Petitioner-Appellant,
v.
STATE OF NEW MEXICO
GAMING CONTROL BOARD,
Respondent-Appellee.
APPEAL FROM THE NEW MEXICO GAMING CONTROL BOARD
M. David Chacon, Hearing Officer
Bregman & Loman, P.C.
Sam Bregman
Eric Loman
Albuquerque, NM
for Appellant
Gary K. King, Attorney General
Santa Fe, NM
Frank A. Baca, Special Assistant Attorney General
Peggy A. Hardwick, Special Assistant Attorney General
Albuquerque, NM
for Appellee

OPINION
VIGIL, Judge.
{1} 	The New Mexico Gaming Control Board (Board) ruled that a gaming license
it issued to La Mesa Racetrack and Casino, L.P. (La Mesa) was rendered void by
statute when La Mesa failed to conduct any live horse races during the 2010 meet
pursuant to a license issued by the New Mexico Racing Commission (Racing
Commission) to conduct such races. 	La Mesa appeals the Board’s ruling in two
separate appeals, which we have consolidated. 	For the reasons stated herein, we
affirm.
I. 	BACKGROUND
{2} 	La Mesa appeals from two final orders issued by the Board pursuant to NMSA
1978, Section 60-2E-60(A) (2002) (providing that any person adversely affected by
an action taken by the Board after its review pursuant to NMSA 1978, Section 60-2E-
59(A) (2002) may appeal to the court of appeals).
{3} 	On January 22, 2009, the Racing Commission granted La Mesa a license
(racing license) to conduct live horse races in Raton, New Mexico for the 2010 meet.
The racing license required La Mesa to conduct sixty days of live horse racing from
May 28, 2010, to September 6, 2010.

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{4} 	As a racetrack licensed by the Racing Commission, La Mesa was entitled to
apply to the Board for a gaming operator’s license (gaming license) to operate gaming
machines on its premises where the live racing is conducted. NMSA 1978, § 60-2E-
27(A) (2005) (amended 2009) (“A racetrack licensed by the state racing commission
pursuant to the Horse Racing Act . . . to conduct live horse races or simulcast races
may be issued a gaming operator’s license to operate gaming machines on its premises
where live racing is conducted.”). La Mesa applied for a gaming license, and on June
11, 2009, the Board granted La Mesa a conditional gaming license, subject to La Mesa
satisfying seven conditions. Conditions Nos. 2 and 3 were that:
2. 	[La Mesa] shall submit an unconditional letter of commitment for
funding sufficient to complete the construction of the racetrack
facilities necessary to conduct live racing, as outlined in phase 2
in [La Mesa’s] license application, and do so on or before
December 31, 2009.
3. 	[La Mesa] shall submit a plan to be approved by the Board,
detailing 	its 	legal 	and 	financial 	[divestiture] 	from 	LLMN
Investments, LLC, within 30 days of the issuance of this Decision
and Order, which should include the proposed restructuring of
Horse 	Racing 	at 	Raton, 	L.P. 	and 	Horse 	Racing 	at 	Raton
Management, LLC, as necessary and the [divestiture] shall be
completed by December 31, 2009.
A. 	La Mesa’s First Appeal
{5} 	On May 4, 2010, the Board held a special meeting to consider whether to take
action against La Mesa for its failure to satisfy Conditions 2 and 3 of the conditional
gaming license. The Board made findings that in La Mesa’s original application for

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the gaming license, La Mesa represented its casino would open by September 2009;
that it thereafter represented its casino would open on or before January 31, 2010; and
that it subsequently represented it would open the casino by the end of April 2010.
The Board further noted that on March 4, 2010, it had placed an additional condition
on the gaming license that the casino be open for gaming on or before May 1, 2010.
The Board determined: (1) La Mesa failed to satisfy Conditions 2 and 3 under which
the conditional gaming license was issued; (2) La Mesa failed to satisfy the additional
condition that the facility be open on or before May 1, 2010; and (3) that the gaming
license expired because a gaming license is only valid for one year and must be
renewed annually, and La Mesa had failed to timely submit a proper renewal
application, accompanied with the proper fee.
{6} 	The Board denied the conditional gaming license granted to La Mesa on June
11, 2009, for failure to meet Conditions Nos. 2 and 3 and ordered that the license was
deemed void, effective immediately. 	In the alternative, the Board directed that an
administrative complaint be filed to revoke the conditional gaming license because La
Mesa failed to meet the condition that it be open for gaming by May 1, 2010. Finally,
the Board concluded that the gaming license had expired because La Mesa failed to
timely submit a complete renewal application, together with the proper fees.
{7} 	On June 3, 2010, La Mesa appealed from the Board’s May 4, 2010 order and
requested a hearing pursuant to Section 60-2E-59(A) (“Any person aggrieved by an

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action taken by the [B]oard or one of its agents may request and receive a hearing for
the purpose of reviewing the action.”). 	The Board appointed a hearing officer to
conduct the hearing. 	See § 60-2E-59(B)(2) (stating that the Board shall adopt
regulations for the appointment of a hearing officer to conduct the hearing and make
recommendations to the Board not more than thirty days after the hearing is
completed). The positions of the Board and La Mesa were presented at the hearing
by their respective attorneys.
{8} 	The Board filed a motion to dismiss the appeal with prejudice on August 9,
2010, on the basis that La Mesa’s gaming license was void as a matter of law because
La Mesa had not run any live horse races during its 2010 licensed race meet, and La
Mesa had no actual ability to run live horse races for the remainder of its 2010 race
meet. 	See § 60-2E-27(B)(2) (providing that unless a statutory exception applies, a
racetrack’s gaming operator’s license “shall automatically become void” if “the
racetrack fails to maintain a minimum number of four live race days a week with at
least nine live races on each race day during its licensed race meet”). 	The Board
argued that because the gaming license was void, La Mesa’s appeal of the Board’s
revocation of the license was moot. 	In response, La Mesa argued that because La
Mesa had filed a request with the Racing Commission to vary its live racing dates, it
satisfied a statutory exception for maintaining fewer than the required number of
racing days or races. See § 60-2E-27(F) (stating that obtaining written approval from

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the Racing Commission to vary the minimum number of live race days or races, when
the variance is due to specified reasons, does not constitute maintaining fewer than
four live race days or the minimum number of live races on each race day).
{9} 	The hearing officer held a hearing on the motion to dismiss on September 17,
2010. The Board and La Mesa were given a full opportunity to present testimony,
submit exhibits, and make arguments in support of their respective positions. At the
hearing, it was undisputedly established that La Mesa held no horse races during its
scheduled race meet from May 28, 2010, to September 6, 2010. Further, evidence was
presented that La Mesa had no ability to hold live horse races at Raton because it had
none of the facilities necessary to conduct live horse racing. “[T]here are no barns
built, there is no grandstand, there is no furnished track, no rail, no infield, no paddock
nor any jockey’s quarters.” 	In addition, the director of the Racing Commission
testified that the Racing Commission had not granted approval to La Mesa to change
its race dates and that the original race meet lasting from May 28, 2010, to September
6, 2010, was still in effect.
{10} 	Based on this evidence, the hearing officer concluded that La Mesa had failed
to hold the required live races and that La Mesa had not established an exception
under Section 60-2E-27(F). Thus, the hearing officer concluded that Section 60-2E-
27 rendered La Mesa’s gaming license void and recommended that the Board dismiss
La Mesa’s appeal as moot. The Board adopted the hearing officer’s recommendation

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in a decision and order dated October 27, 2010, and dismissed La Mesa’s appeal. La
Mesa now appeals to this Court pursuant to Section 60-2E-60(A).
B. 	La Mesa’s Second Appeal
{11} 	While the first appeal was pending, the Board’s executive director sent La Mesa
a letter on August 9, 2010, notifying La Mesa that pursuant to Section 60-2E-
27(B)(2), its gaming license was automatically void due to its failure to hold live races
during its licensed meet. 	La Mesa appealed from this determination as well and
requested a hearing. The same hearing officer who presided over the first appeal was
appointed to preside over the hearing on this appeal, and the same attorneys also
appeared on behalf of the Board and La Mesa.
{12} 	In this appeal, La Mesa contended that the Board’s executive director did not
have authority to declare that La Mesa’s gaming license was invalid without action
by the Board. La Mesa further argued that any contention that its gaming license was
void under Section 60-2E-27(B)(2) was premature, because on March 18, 2010, it had
applied to the Racing Commission for a variance of its minimum number of race days
or races, and the Racing Commission had not yet made a ruling on the request. La
Mesa said that on April 15, 2010, the Racing Commission had tabled the variance
request and that a hearing on its request was scheduled for December 21, 2010, before
the Racing Commission’s hearing officer.

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{13} 	On October 27, 2010, the Board filed a motion for summary judgment. The
basis was that under the doctrine of res judicata, La Mesa was bound by the Board’s
decision in the first appeal in which the Board determined that La Mesa’s gaming
license 	was 	automatically 	void 	under 	Section 	60-2E-27(B)(2). 	The 	Board
subsequently filed a supplemental submission in support of the recommendation for
summary judgment. 	This consisted of legal arguments concerning the executive
director’s authority to send La Mesa the August 9, 2010 letter notifying La Mesa that
its gaming license was automatically void due to its failure to hold live races during
its licensed meet, and an order of the Board dated January 6, 2011, in which the Board
affirmed and ratified the authority of the executive director to make the determination
set forth in his August 9, 2010 letter to La Mesa. In addition, the Board submitted an
affidavit of the Board’s executive director stating that La Mesa had not provided to
the Board written approval from the Racing Commission allowing La Mesa to vary
its minimum number of live race days or races.
{14} 	The hearing officer held a hearing on the motion for summary judgment on
November 23, 2010. The Board and La Mesa were both represented by counsel and
were once again given a full opportunity to present testimony, submit exhibits, and
make arguments in support of their respective positions. On January 31, 2011, the
hearing officer issued his recommendation in the second appeal. The hearing officer
found that the executive director had authority to send La Mesa the August 9, 2010

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letter, or in the alternative, that the Board had affirmed and ratified the determination
made by the executive director in the August 9, 2010 letter. 	Further, the hearing
officer recommended that under the doctrines of res judicata or collateral estoppel, the
Board grant summary judgment against La Mesa, or in the alternative, dismiss La
Mesa’s second appeal because La Mesa’s gaming license was automatically voided
by 	Section 	60-2E-27(B)(2). 	The 	Board 	accepted 	the 	hearing 	officer’s
recommendation in an order dated February 28, 2011. La Mesa also appeals from this
order of the Board pursuant to Section 60-2E-60(A).
II. 	ANALYSIS
{15} 	La Mesa contends that the Board erroneously concluded that its gaming license
was void and consequently erred in dismissing its first appeal as moot and that the
summary judgment entered by the Board on its second appeal must be reversed. We
will set aside administrative action of the Board only if it is “(1) arbitrary, capricious
or an abuse of discretion; (2) not supported by substantial evidence in the whole
record; or (3) otherwise not in accordance with law.” 	Section 60-2E-60(B). 	In
addition, we note that the Board made extensive findings of fact in support of its
conclusions and that La Mesa does not challenge those findings of fact on appeal. We
therefore deem the Board’s findings of fact binding on appeal. Cf. Alfred v. Anderson,
86 N.M. 227, 228, 522 P.2d 79, 80 (1974) (stating that where the district court

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findings are not attacked on appeal as inaccurate, incomplete, or inadequate, they are
binding on appeal).
A. 	Dismissal of La Mesa’s First Appeal as Moot
{16} 	The Board dismissed La Mesa’s first appeal as moot on the grounds that no
relief could be granted to La Mesa because its gaming license had been rendered void
by Section 60-2E-27(B)(2). On appeal, La Mesa asserts that its gaming license was
not void due to an exception contained in the same statute. Because these arguments
require statutory interpretation, our review is de novo. See Att’y Gen. v. N.M. Pub.
Regulation Comm’n, 2011-NMSC-034, ¶ 10, 150 N.M. 174, 258 P.3d 453 (“Statutory
interpretation is an issue of law, which we review de novo.” (internal quotation marks
and citation omitted)).
{17} 	We begin with the language of the statute. Section 60-2E-27(B)(2) in pertinent
part states: “A racetrack’s gaming operator’s license shall automatically become void
if . . . the racetrack fails to maintain a minimum of four live race days a week with at
least nine live races on each race day during its licensed race meet, except as provided
in Subsection F of this section.” (Emphasis added.) The plain language of Section
60-2E-27(B)(2) automatically voids a gaming license if the licensee fails to hold the
requisite number of live horse races during its race meet, unless Subsection F applies.
See Att’y Gen., 2011-NMSC-034, ¶ 10 (stating that in construing statutes, “[w]e
follow classic canons of statutory construction, looking first to the plain language of

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the statute, giving the words their ordinary meaning, unless the Legislature indicates
a different one was intended.” (internal quotation marks and citation omitted)). La
Mesa does not dispute that it failed to hold the number of live race days or races
required by Section 60-2E-27(B)(2).
{18} 	However, La Mesa contends that its gaming license is not automatically void
pursuant to Section 60-2E-27(F)(6), which provides:
F. 	Maintaining fewer than four live race days or nine live races
on each race day during a licensed race meet does not constitute a failure
to maintain the minimum number of live race days or races as required
by Paragraph (2) of Subsection B of this section if the licensee submits
to the board written approval by the state racing commission for the
licensee to vary the minimum number of live race days or races, and the
variance is due to:
. . . .
(6) any other act, event or occurrence that the board finds
is not within the control of the licensee even with the exercise of
reasonable diligence or care.
(Emphasis added.) La Mesa argues that Section 60-2E-27(F)(6) applies because it
submitted a request to the Racing Commission to vary its minimum number of race
days or races, which was at first tabled by the Racing Commission and then set for a
hearing before its hearing officer. La Mesa further asserts that the applicable “other
act, event or occurrence” was due to the failure of one of its contractors to have a
proper license, resulting in a delay in building a portion of the racing and gaming
facilities imposed by the New Mexico Construction Industries Division. See § 60-2E-

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27(F)(6). 	Thus, La Mesa asserts that the Board was premature in ruling that the
gaming license was void before the Racing Commission ruled on its variance request
and that the gaming license was not rendered void by Section 60-2E-27(B)(2). We
disagree.
{19} 	The plain meaning rule of statutory construction requires us to give effect to the
language of a statute and refrain from further interpretation when the language used
in the statute is clear and unambiguous. 	See Marbob Energy Corp. v. N.M. Oil
Conservation Comm’n, 2009-NMSC-013, ¶ 9, 146 N.M. 24, 206 P.3d 135. 	To
prevent its gaming license from becoming automatically void, Section 60-2E-27(F)(6)
clearly and unambiguously required La Mesa to submit to the Board written approval
obtained from the Racing Commission to vary the number of its live race days or
races, and La Mesa failed to submit the required approval to the Board. 	We
acknowledge that La Mesa submitted its variance request to the Racing Commission
in March 2010, before the meet ended and that the Racing Commission, for reasons
not disclosed by the record, tabled the variance request and then set it for hearing
before a hearing officer in December 2010. However, the undisputed fact is that when
the Board’s hearing officer heard the motion to dismiss the first appeal on September
17, 2010, La Mesa had no track, no rail, no infield, no paddock, no jockey’s quarters,
no grandstand, and could not conduct live horse racing. As of September 17, 2010,
the race meet had already expired, and the statute says nothing about the effect of a

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variance request that is pending before the Racing Commission after the meet has
already expired. The undisputed fact is that La Mesa did not obtain written approval
from the Racing Commission to vary its minimum number of live race days or races.
We 	therefore 	affirm 	the 	Board’s 	conclusion 	that 	Section 	60-2E-27(F)(6) 	is
inapplicable and that Section 60-2E-27(B)(2) rendered La Mesa’s gaming license
automatically void when La Mesa failed to maintain a minimum number of four live
race days a week with at least nine live races on each day during its licensed race
meet.
{20} 	La Mesa argues that the issues in its first appeal are not moot because its
gaming license could be reinstated by the Board, which would then revive the same
issues raised in the first appeal. 	See 15.1.10.42(F) NMAC (2/28/2005) (amended
12/15/2010) (“Voiding of a license by the [B]oard pursuant to Section 60-2E-27(B)
of the act and these rules does not constitute a denial, permanent suspension or
revocation of the license for cause by the [B]oard or a limiting action by the [B]oard
on the gaming operator licensee.”). We disagree. A case is rendered moot “when no
actual controversy exists, and the court cannot grant actual relief.” Gunaji v. Macias,
2001-NMSC-028, ¶ 9, 130 N.M. 734, 31 P.3d 1008 (internal quotation marks and
citations omitted). It is completely speculative whether La Mesa’s racing license will
be reinstated by the Board in the future and what circumstances will exist between the
parties at that time. La Mesa offered no evidence at the hearing or on appeal that it

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had reapplied for a license or was otherwise entitled to reinstatement of its license.
Thus, we affirm the Board’s dismissal of the first appeal as moot.
B. 	The Entry of Summary Judgment on La Mesa’s Second Appeal
{21} 	La Mesa’s second appeal arose when it appealed from the letter sent by the
director of the Board notifying La Mesa that its gaming license was rendered void by
Section 60-2E-27(B)(2). Two issues were raised by La Mesa in the second appeal:
(1) whether the gaming license was void under Section 60-2E-27(B)(2) when the
Racing Commission had tabled La Mesa’s request for variance of its race dates; and
(2) whether the director had the authority to unilaterally conclude the license was void
without the Board’s action. See 15.1.10.42(D)(1) NMAC (providing that “[u]pon the
determination by the [B]oard that a racetrack gaming operator licensee has failed to
maintain the minimum number of live race days or races as required by the act and
these rules: (1) the gaming operator’s license shall become automatically void and of
no legal effect”). 	The Board again concluded that La Mesa’s gaming license was
automatically void under Section 60-2E-27(B)(2). Additionally, the Board ruled that
res judicata barred La Mesa from again arguing in the second appeal whether the
gaming license was rendered void by Section 60-2E-27(B)(2). 	Finally, the Board
determined that the director had the authority to notify La Mesa that its gaming license
had become void. We address the issues in turn.

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{22} 	“Summary judgment is appropriate where there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law.” Self v. United
Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “We review
these legal questions de novo.” Id.
{23} 	We have already concluded that Section 60-2E-27(B)(2) automatically voided
La Mesa’s gaming license because La Mesa failed to hold live horse races and failed
to satisfy the exception enumerated in Section 60-2E-27(F)(6). 	La Mesa has
presented no additional disputed facts requiring further analysis, and we therefore
conclude that the Board properly granted summary judgment against La Mesa in the
second appeal. Because summary judgment was properly granted on this issue, we
deem it unnecessary to determine whether the Board correctly ruled that res judicata
also required dismissal of La Mesa’s second appeal.
{24} 	Moreover, the issue pertaining to the authority of the director to send the letter
to La Mesa has been rendered moot. It is undisputed that after the director sent La
Mesa the letter, the Board approved and ratified the director’s action in stating that La
Mesa’s gaming license was void. See Bd. of Cnty. Comm’rs v. Chavez, 2008-NMCA-
028, ¶ 17, 143 N.M. 543, 178 P.3d 828 (“Ratification is the adoption or confirmation
by a principal of an unauthorized act performed on its behalf by an agent.” (internal
quotation marks and citation omitted)). Thus, even if we assume that the director had
no authority to determine on his own that La Mesa’s gaming license was void, the

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Board’s approval and ratification of the director’s act renders La Mesa’s argument
moot. 	See Chavez, 2008-NMCA-028, ¶¶ 1, 21-22 (concluding that summary
judgment was properly granted on a claim alleging that the mayor took unauthorized
unilateral action because it was undisputed that the city council subsequently ratified
the mayor’s action).

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III. 	CONCLUSION
{25} 	We hold that the Board’s action in dismissing both appeals was not arbitrary,
capricious, or contrary to law and was based on substantial evidence in the whole
record. 	It is therefore unnecessary for us to address any other issues raised by La
Mesa. The orders of the Board are affirmed.
{26} 	IT IS SO ORDERED.
______________________________
MICHAEL E. VIGIL, Judge
WE CONCUR:
__________________________________
JONATHAN B. SUTIN, Judge
__________________________________
LINDA M. VANZI, Judge