LOUISVILLE, Ky. (WDRB) – Bars and restaurants can’t have indoor service. Schools can’t have in-person classes. Gyms can’t have group workouts. Weddings and funerals must be trimmed to 25 people per room.

Yet, Gov. Andy Beshear apparently has no problem with hundreds of people gathering under the same roof to gamble at slot-like historical racing machines, an industry that grosses billions of dollars a year in wagers for the state’s politically influential horse tracks.

At first, Kentucky’s six racetrack-owned gaming venues, which have about 3,500 slot-like machines between them, appeared to be notably absent from a new set of capacity restrictions Beshear announced on Wednesday, which even included limits on private gatherings at homes.

The industry said it wasn’t subject to new restrictions, and Beshear said during his Thursday briefing that he doubted he had given the venues permission to use 75% of their capacity. In fact he had, according to document WDRB obtained Friday.

Then, a couple of hours after this story was first published, Beshear’s office said that the gaming venues are considered “indoor recreation facilities” under his Wednesday executive order, meaning they will have to reduce their capacity to 33% and cease indoor food and beverage consumption.

At the bigger venues such as Oak Grove, Derby City Gaming and Kentucky Downs, that could still be more than 200 patrons, based on the number of machines they had in operation as of September.

Until Friday, the industry had been guided by a separate set of rules contained in a May 19 reopening plan that the racetracks crafted for themselves, which Beshear approved in June. That plan called for gradual capacity increases up to 75% beginning Aug. 15.

The plan also called for the installation of plastic “social isolation shields” so people can sit less three-feet apart playing side-by-side gaming machines.

During his briefing Thursday, Beshear was unable to say what restrictions applied to the gaming venues.

“I believe our interpretation was they fall under a set of restrictions,” Beshear said. “We don’t have individual ones anymore for a wedding venue or a different type of venue, or indoor recreation facilities; so, we’ll send you our belief as to the application on that. I do not believe that we signed off on 75%, but we’ll take a look.”

Louisville’s Derby City Gaming and five other gaming venues generate $10 million a day in wagers from consumers who play their slot-mimicking games.

The revenue from the facilities directly benefits their Kentucky racetrack owners in the form of profits, but also indirectly by generating taxes that are used to prop up the state’s live horse racing industry by offering more generous racing purses.

Even amid the pandemic, the venues’ 3,546 machines generated $303 million in wagers in September, up 34% from a year earlier.

Made with Flourish

Historical horse racing venues differ from most other Kentucky industries in that Beshear has accepted their self-regulation proposal and not issued any rules specific to the venues.

“Separate guidance was not necessary since all licensed (historical horse racing) facilities submitted a proposal that we accepted. This is the guidance they will follow,” Beshear spokeswoman Crystal Staley said on June 11, after Beshear allowed the venues to reopen on June 8.

Churchill Downs' Tonya Abeln said the venues are currently limited to 75% of their fire-marshal capacity, “a percentage we do not come close to reaching.” 

The 75% limit comes from a detailed reopening plan dated May 19 that the industry submitted to Beshear, a copy of which Abeln provided to WDRB on Friday.

Beshear's office did not produce that plan when WDRB filed an open records request on June 5, seeking to obtain a copy of the plan the industry would be bound by to guide its reopening.

Instead, the governor's office sent a copy of a less-detailed, 19-page "reopening safety plan” dated May 4, which does not speak to capacity limits.

While the industry initially didn’t consider itself subject to the new restrictions Beshear ordered Wednesday, Churchill Downs’ Abeln said Thursday that all six venues were voluntarily “adopting and self-imposing stricter protocols.”

Those included no longer serving food indoors and closing bars within the venues.

Abeln said Friday that Churchill Downs – which owns Derby City Gaming, Oak Grove and Newport Racing & Gaming – accepts Beshear’s characterization as facility now subject to 33% capacity.

Defending his general approach to the gaming venues, Beshear said Thursday he wants to be “surgical” in applying as few restrictions as necessary to halt the spread of the coronavirus.

“There is going to be a whole lot of, why are you doing this to me and not to Walmart? The answer is, the public health experts tell us this is the most targeted way to reduce the growth of the virus with causing as little disruption as possible,” he said.

Dr. Steven Stack, Beshear’s health commissioner, did not respond Friday when asked through a spokeswoman what data or evidence shows the gaming venues can operate safely.

“This is a further indication that (Beshear’s) decisions are arbitrary and not made based on data and science,” said State Rep. Jason Nemes, a Republican from eastern Jefferson County. “Making decisions based on data is important both so we make better decisions and to increase compliance.”

Note: This was significantly updated following Gov. Andy Beshear's statement Friday afternoon that the gaming venues are considered indoor recreation facilities subject to a 33% capacity limit. It was also updated to clarify that Abeln's description of the industry's 75% capacity limit comes from May 19 industry-produced reopening plan, a copy of which she provided to WDRB. Beshear's office did not produce this document to WDRB in response to a June 5 open records request that sought the industry's reopening plan. 

Reach reporter Chris Otts at 502-585-0822, cotts@wdrb.com, on Twitter or on Facebook. Copyright 2020 WDRB Media. All rights reserved.