The Kentucky Court of Appeals has denied a request to shut down instant racing until the judges rule on the game's legitimacy.
The Family Foundation, through its trust, filed a motion in the Court of Appeals for an injunction to halt wagering on "historical races," which Kentucky Downs in Franklin has been offering since Sept. 1.
In a ruling filed Wednesday, the court denied that motion, saying it "cannot agree that the injury is irreparable or one that could not be rectified through the current litigation."
The Family Foundation, a conservative advocacy group, has been fighting the games as an illegal expansion of gambling. Last year, Franklin Circuit Court found that wagering on previously run races was legal and pari-mutuel, allowing Kentucky racetracks to put in instant racing machines pending regulatory approval.
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The Family Foundation said Thursday that it was disappointed but was confident it would prevail.
In its appeal of the December circuit court ruling, the Family Foundation lost a motion for an emergency injunction Sept. 8. The court is expected to rule on the case next year.
"They were ruling on a very narrow request, as to whether there was irreparable harm," said Martin Cothran, spokesman for the foundation. "It does seem to us that if slot machines harm people, and instant racing games are slot machines, and people are using them now, then they are harming people now."
He said his group had submitted a video of the games in action, which the racetracks and Gov. Steve Beshear's administration had moved to suppress.
"We are still looking for someone, somewhere in this case who is willing to look at an actual instant racing machine. So far, no one involved in this litigation has done so," Cothran said. "But the pictures don't lie."
Kentucky Downs was the first to install instant racing, with about 200 machines, but Ellis Park in Henderson filed an application this week that will be considered by the racing commission Oct. 18.
Other tracks, including The Red Mile in Lexington, are waiting for the appeals court to rule.
Corey Johnsen, president of Kentucky Downs, said Thursday that he thought the tracks, the Kentucky Horse Racing Commission and the state Revenue Cabinet were on solid legal ground.
"I'm more convinced today than ever that not only is this legal, but this is really important for the commonwealth of Kentucky and the horse industry," Johnsen said. "When I said we would generate millions of dollars for the state and the horse industry, I'm confident we can do that in 2012."
In the first five days of operation, the track saw almost $600,000 in betting, which would average out to $600 a day per machine.
Johnsen did not reveal new handle figures but said: "It's much better than it was. I would think it would be double what we saw opening weekend."