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Rod Smith

Hard Rock Moves to Dismiss Complaint

27 August 2004

LAS VEGAS -- The Hard Rock Hotel has set the stage for a battle with the Nevada Gaming Commission by filing a motion to dismiss a three-count complaint against it for suggestive advertising.

Previously, the Hard Rock and the state attorney general's office tried to negotiate a $300,000 settlement to resolve the complaint, which alleged the marketing campaign reflected poorly on the gaming industry and the state.

However, the commission rejected the settlement in July, saying larger policy issues affecting the industry and the community had to be addressed .

In July, the attorney general's office asked for more time to negotiate an agreement, but Gaming Commission Chairman Pete Bernhard instead scheduled a hearing on pretrial motions for Sept. 24 and a trial for Nov. 18.

As part of the process, the American Civil Liberties Union of Nevada and the Nevada Resort Association filed friend of the court briefs on Monday, asking the Gaming Commission to grant the Hard Rock's motion for dismissal.

"Basically, it's a First Amendment issue. While the hotel and the resort association were represented, we felt it was important for the public to be heard," ACLU general counsel Allen Lichtenstein said.

He added there is nothing illegal about the ads, and said his group believes state regulations allowing state regulators to sanction companies or individuals on the basis of taste are unconstitutional.

Numerous members of the public have appeared before state regulators to protest the Hard Rock's advertising campaign, which they claimed is offensive, damages children and discourages families from moving to Las Vegas.

One of the ads shows a man with a scantily clad woman lying atop a gaming table with chips nearby and a card in her mouth. Above the two there originally was text that read: "There's always a temptation to cheat."

Commissioners in May expressed doubts that any reasonable person would realistically interpret the Hard Rock ads as promoting illegal activity as alleged in the complaint despite the Gaming Control Board's decision to approve sanctions based on that interpretation.

Hard Rock Hotel President Kevin Kelley declined Thursday to comment on the motion to dismiss. Hard Rock attorney Jeff Silver, a partner in Gordon and Silver, and Nevada Resort Association President Bill Bible failed to return phone calls.