Current through Register Vol. 47, No. 5,
March 10, 2024
30-2001
Prehearing procedures.
Unless the hearing officer provides otherwise, C.R.C.P. 16
shall not apply to hearings before the Commission and these rules shall govern
all prehearing practice.
(1) Motions.
(a) Any motion or motion response shall
incorporate legal authority, or be filed simultaneously with a brief containing
legal authority. The motion shall advise the Commission of the necessity for
expeditious ruling, certification or referral to the Commission, or other
urgency, if any. Failure to incorporate or recite legal authority may be
grounds for denial of the motion, without prejudice.
(b) A responding party shall have 10 days in
which to file a response to a motion. The failure to respond may be deemed a
confession of the motion, and the Commission may enter any order related
thereto, including sanction or award of other relief.
(c) A reply will be permitted only upon
motion to the Commission within five days after the filing of the response. The
reply must accompany the motion.
(d) Oral argument shall be allowed only upon
order of the Commission. If any party fails to appear at an oral argument or
hearing without prior showing of good cause for non-appearance, the Commission
may proceed to hear and rule on the motion.
(2) Prehearing Statement.
(a) When ordered by the Commission, each
party shall file with the Commission and serve on each other party a prehearing
statement in substantial compliance with the form as outlined in Appendix A to
this rule.
(1) Prehearing statements shall be
filed and served no later than 14 days prior to the date set for
hearing.
(2) Parties shall exchange
exhibits by the date on which prehearing statements are to be filed and served.
Parties shall label exhibits in a manner consistent with the identification of
exhibits in the prehearing statement. Exhibits need not be filed with the
Commission.
(b) The
authenticity of exhibits, statutes, ordinances, regulations, or standards set
forth in the prehearing statement shall be admitted unless objected to in a
written objection filed with the Commission and served on other parties no
later than 7 days prior to the hearing.
(c) The information provided in a prehearing
statement shall be binding on each party throughout the course of the hearing
unless modified to prevent manifest injustice. New witnesses or exhibits may be
added only if the need to do so was not reasonably foreseeable at the time of
filing of the prehearing statement and then only if it would not prejudice
other parties or necessitate a delay of the hearing.
APPENDIX A OUTLINE FOR PREHEARING
STATEMENT
The following shall be included in each party's Prehearing
Statement:
I. PENDING
MOTIONS. List all outstanding motions that have not been ruled upon by the
Commission.
II. STATEMENT OF CLAIMS
AND DEFENSES. Provide a concise statement of all claims or defenses asserted by
all parties, together with all matters in mitigation or aggravation. This
statement may incorporate, by reference, previously published charges, counts,
and grounds.
III. UNDISPUTED FACTS.
Provide a concise statement of all facts which the party contends are or should
be undisputed.
IV. DISPUTED ISSUES
OF FACT. Provide a concise statement of the material facts which the party
claims or concedes to be in dispute.
V. POINTS OF LAW. Include a concise statement
of all points of law which are to be relied upon or which may be in
controversy, citing pertinent statutes, regulations, cases and other authority.
Extended legal argument is neither required nor desired, but is more
appropriately placed in a brief on the matter. This statement may incorporate,
by reference, previously published charges, counts, and grounds.
VI. WITNESSES. Include the name, address, and
telephone number of any witness or party whom the party may call at hearing,
together with a statement of the content of such person's testimony.
VII. EXPERTS. Include the name, address, and
a brief summary of the qualifications of any expert witness a party may call at
hearing, together with a statement as to each expert which sets forth in detail
the opinions to which the expert is expected to testify. These requirements may
be satisfied by the incorporation of an expert's resume or report containing
the required information.
VIII.
EXHIBITS. Provide a description of any physical or documentary evidence to be
offered into evidence at the hearing. Exhibits should be identified as follows:
If there is only one party in opposition to the Division, the Division shall
employ numbers, and the other party shall use letters. If there is more than
one party in opposition to the Division, each party shall employ assigned
letters with numbers, e.g. A-#, B-#, C-#, etc.
IX. STIPULATIONS. Provide a listing of all
stipulations of fact or law reached, as well as a listing of any additional
stipulations requested or offered to facilitate disposition of the
case.
X. DISCOVERY STATUS. Present
an identification of the status of discovery, and identify any additional
discovery issues which remain unresolved.
XI. TRIAL EFFICIENCIES. List an estimate of
the amount of time required to present the case, and special needs for
accommodation of exhibits, witnesses, testimony, or any other matters which
have not been addressed.
30-2002
Prehearing discovery.
(1) Administrative hearings are informal,
expedited matters; accordingly, traditional discovery practice common before
the District Courts of the state is inappropriate. Accordingly, discovery
practice in matters before the Commission is limited. Parties must undertake to
request information from the other parties or the Division in a manner
consistent with the following guidelines.
(2)
Confidential
materials. Pursuant to section
44-30-526, C.R.S., the files and
records pertaining to the Division's investigations are confidential, and
protected from scrutiny from any person, including the person in interest,
unless the Commission makes specific allowance therefor.
(3)
Discretionary disclosure of
confidential materials. Notwithstanding the confidentiality of
information, the Commission has determined to disclose certain documents under
the following circumstances:
(a)
License condition or denial actions. In contested
actions concerning the denial or condition of a license or other approval, the
Division shall allow the applicant to inspect only so much of the Division's
investigative files and work product as the Commission deems appropriate. The
Division may refuse to provide copies of any document so inspected. (Approved
12/18/98 Effective 3/2/99)
(i) The Division
must allow the applicant to inspect any document, or any part thereof, and its
relevant context, if any, in the Division's possession which the Division
intends to use as evidence in the hearing, and provide the applicant with a
copy of same, unless the Division cannot accomplish duplication of the document
with the Division's own equipment; an applicant must pay for the duplication of
all other documents or items, and the Division may impose reasonable
restrictions upon the duplication process, including requiring that the
duplication be performed in the presence of an agent of the Division, that the
duplication be performed under an agreement of confidentiality, that the
duplication take place at the Division's offices, that the applicant provide
the transfer medium for the duplication, or any other condition related to the
security or integrity of the record keeping process.
(ii) The Division must provide the applicant
with a copy of only:
(A) Those meaningful
portions of transcripts of statements of witnesses in the Division's possession
or control; and
(B) portions of
transcripts, in context, which the Division intends to use as evidence in the
hearing.
(iii) The
Division must provide the applicant with access to any evidence which the
Division intends to introduce in the hearing.
(iv) The presence of intervenors in a denial
action shall constitute grounds for modification of these standards on a case
by case basis. Generally, applicants and intervenors will have similar access
to materials insofar as is relevant to each party's individual interest in the
matter, provided that the access is consistent with C.R.S.
44-30-526. (Approved 12/18/98
Effective 3/2/99)
(b)
Sanction actions. The Division shall allow the
respondent to inspect the Division's internal written report of its
investigation of the circumstances under scrutiny, and provide the respondent
with a copy of same.
(i) The Division must
allow the respondent to inspect any document, or any part thereof, and its
relevant context, if any, in the Division's possession which the Division
intends to use as evidence in the hearing, and provide the respondent with a
copy of same, unless the Division cannot accomplish duplication of the document
with the Division's own equipment. An applicant must pay for the duplication of
all other documents or items, and the Division may impose reasonable
restrictions upon the duplication process, including requiring that the
duplication be performed in the presence of an agent of the Division, that the
duplication be performed under an agreement of confidentiality, that the
duplication take place at the Division's offices, that the applicant provide
the transfer medium for the duplication, or any other condition related to the
security or integrity of the record keeping process.
(ii) The Division must provide the respondent
with a copy of only:
(A) Those meaningful
portions of transcripts of statements of witnesses in the Division's possession
or control; and
(B) portions of
transcripts, in context, which the Division intends to use as evidence in the
hearing.
(iii) The
Division must provide the respondent with access to any evidence which the
Division intends to introduce in the hearing.
(iv) The presence of intervenors in a
sanction action shall constitute grounds for modification of these standards on
a case by case basis. Generally, respondents and intervenors will have similar
access to materials insofar as is relevant to each party's individual interest
in the matter.
(c) Any
party may petition the Commission for greater access to or copies from the
Division's or the Commission's files. The Division may petition the Commission
for a protective order restricting disclosure or use of any document.
(d) All copies of any confidential document
provided any party pursuant to this rule shall remain confidential and
protected for all purposes, and are subject to the following Protective Order:
(i) While a party may share such information
with that party's counsel and essential witnesses, no party or counsel shall
disclose the contents, substance, or fact of existence of any protected
document to any other person or party, nor may any party use any protected
document for any purpose except as evidence in a hearing before the Commission.
A party may disclose the information only as may reasonably be necessary for
the preparation or presentation of evidence in the matter.
(ii) Unless the Commission provides
otherwise, once a confidential document has been accepted into evidence in any
hearing, it loses its protected status.
(iii) All confidential documents, and all
copies thereof, must be returned to the Division upon the conclusion of any
matter for which the confidential document was provided. Failure to return any
such confidential document is grounds for sanction of the license or other
approval, or any other appropriate sanction.
(e) Requests for production of documents from
the division shall be made by motion for disclosure to the
Commission.
(4)
Interviews and depositions.
(a) The Commission may permit depositions,
only in cases of necessity, exigency, a witness' failure to cooperate, witness
unavailability for hearing, the inadequacy of an interview, or other similar
good cause shown and the information is not available by other reasonable
means.
(b) Depositions shall be
conducted under such limitations, terms and conditions as specified in the
order authorizing them.
(c) In
order to promote a free discussion of facts and opinions, the Division shall
make relevant staff available for unrecorded interviews by any party. The
Division shall cooperate in good faith with reasonable requests of any party,
but the Division is not obligated to disclose confidential or protected
information. The Commission may require an interview be conducted before
authorizing a deposition.
(5)
Interrogatories.
(a) Absent good cause shown, each party may
serve up to ten written interrogatories upon each adverse party, each of which
shall consist of a single, particularized question without subparts and without
multiple subjects or objectives.
(b) The responses to the interrogatories
shall be provided to all parties within 20 days of service of the
interrogatories.
(c) The answering
party may reasonably object to any interrogatory, and thereby avoid answering
until directed to do so upon resolution of the objection by the
Commission.
(6) The
Commission may impose appropriate sanctions if any party fails to comply with
the provisions of this rule, any action governed by it, or any order entered
pursuant thereto.
(7) Discovery
shall be completed no later than 20 days in advance of the hearing
date.
(8) Upon good cause shown,
the Commission may allow additional discovery, may further limit discovery, or
may modify the time limits set forth in this rule.
(9) Parties are under a continuing obligation
to update, correct, supplement, or amend any information previously provided in
a timely manner until the conclusion of the hearing.
(10) Witnesses are encouraged, but not
obligated, to freely share information with all parties. A party shall have
unrestricted ability to contact other non-party witnesses for these
purposes.
30-2003
Contested hearing procedure.
(1)
Except as pertains to the summary suspension of a license or other approval,
and then only insofar as these procedures are not inconsistent with the
procedures contained within the administrative procedures act, sections
24-4-104 and
105, C.R.S., or with the Commission's
procedures for summary suspension, the following procedures shall govern
non-rulemaking hearing practice before the Commission, unless otherwise
directed by the Commission.
(2)
Hearings shall be conducted by the Commission, sitting
en
banc, or by a designated or duly appointed administrative law judge.
(a) The Commission may also designate a
member Commissioner or Administrative Law Judge to preside as a Hearing Officer
to address and resolve non-dispositive pre-hearing motions, requests, and other
matters pertaining to the preparation, conduct, presentation, and orderly
progression of the matter before the Commission.
(b) Any party may petition the Commission to
review or reconsider any action of the Hearing Officer; the Commission may
grant or deny oral argument on the matter, and rule on the matter accordingly.
The pre-hearing determinations of the Hearing Officer shall govern the hearing
unless and until the Commission shall enter an order modifying or changing the
pre-hearing determination. The Hearing Officer may also refer any matter to the
Commission for its determination, with or without recommendation.
(c) The Commission shall resolve all
dispositive matters raised in any hearing. The Hearing Officer shall refer any
dispositive matters to the Commission for its determination, with or without
recommendation.
(d) The Hearing
Officer may hold a pre-trial hearing and the evidentiary hearing virtually,
in-person, or a hybrid variation thereof. At the discretion of the Hearing
Officer, a witness may testify virtually or by phone.
(3)
Evidentiary
procedure.(a) The Commission
shall not be bound by the technical rules of evidence, and informality in any
proceeding or in the manner of taking testimony shall not invalidate any
Commission order, decision, or regulation.
(b) Although the Commission is not bound by
the technical rules of evidence, to promote uniformity in the consideration of
evidence, the Commission shall use as a guide the Colorado Rules of Evidence
applicable in civil non-jury cases in the district courts of
Colorado.
(c) When necessary to
ascertain facts affecting substantial rights of the parties to a proceeding,
the Commission may receive and consider evidence not admissible under the
Colorado Rules of Evidence, if the evidence possesses probative value commonly
accepted by reasonable and prudent persons in the conduct of their
affairs.
(d) In any inquiry by the
Commission into a person's suitability, evidence of reputation or of character
is relevant, when viewed in context of the public interest, and bears probative
weight when it relates to the following matters:
(1) Criminal justice;
(2) Fraud, thievery, or dishonesty;
(3) Probity, integrity or honesty;
(4) Association;
(5) Financial affairs; and
(6) Any other licensing
criterion.
(e) Any two or
more parties may stipulate to offer into evidence as an exhibit or other
evidence any fact or matter in issue of substance or procedure. The Commission
shall enter an order approving or disapproving any stipulation offered into
evidence, or may recommend modification as a condition for approval.
(f) Before the commencement of the case, each
party sponsoring an exhibit should furnish a copy to each other party, to the
Hearing Officer, to the record secretary, and to each Commissioner present at
the hearing.
(1) The Commission may limit the
number of copies to be furnished where reproduction is burdensome.
(2) The Commission shall disregard exhibits
provided but not admitted into the record; in like fashion, they shall not be
included in the record unless specific request therefor is made.
(3) Rebuttal exhibits and evidence need not
be provided in advance of the use of the evidence.
(g) A witness may testify virtually or by
telephone unless otherwise ordered by the Hearing Officer or the
Commission.
(4)
Burden of Proof.(a)
Unless the Commission directs otherwise, hearings ordinarily proceed with the
presentation of evidence in the following order:
(1) Proponent of the order;
(2) Intervenor, if any;
(3) Answer in opposition;
(4) Rebuttal by the proponent of the
order.
(5) Upon motion, and for
good cause shown, the Commission may permit surrebuttal by any party, and
variance from this order of presentation.
(b) The proponent of an order, or other
affirmative action, shall have the burden of proof.
(1) Applicants for licensure, for renewed
licensure which is denied, or for other approvals granted by the Commission are
proponents for the issuance of the license or any other approvals granted by
the Commission. The Division shall be the proponent in matters pertaining to
Orders to Show Cause or Summary Suspension for the proposed sanction of a
license, and in matters pertaining to the limitation on renewed
licensure.
(2) Notwithstanding the
burden of proof, any applicant may request the Division to make an initial
evidentiary presentation on all matters alleged in any denial, after which the
applicant may present its case, with the Division to conclude by presenting a
rebuttal, if any, and the applicant may be allowed a surrebuttal.
(3) In other proceedings where the burden of
proof is not otherwise provided, the burden of proof and the burden of going
forward shall be determined by the Commission.
(5)
Subpoena
issuance.(1) Only the
Commission, any commissioner, any Hearing Officer, or the Director of the
Division, upon proper and timely request, may issue a subpoena or a subpoena
duces tecum requiring the attendance of a witness or the production of
documentary evidence, or both, at a hearing. A subpoena shall issue within
three business days of the request therefor.
(2) Other parties, and their counsel, may not
issue any subpoena, but are responsible for effecting service of all subpoenas
issued to them in the manner described in Rule 45(c), Colorado Rules of Civil
Procedure.
(3) Each party is
responsible to ensure the validity of any subpoena issued at its request which
commands the performance of an obligation by any person outside the
jurisdiction of the Commission.
(4)
On prompt motion, the Commission may quash or modify any subpoena if compliance
therewith would be unreasonable or oppressive. The Commission may also direct
an in camera review of subpoenaed documents prior to making them available to
inspection by any party or the public. The Commission may order the sealing of
any document from public scrutiny.
BASIS AND PURPOSE FOR RULE 21
The purpose of Rule 21 is to establish playing rules for
authorized types of games which combine the play of blackjack with the play of
poker, and management procedures for conducting blackjack-poker combination
games in compliance with section
44-30-302(2),
C.R.S. The statutory basis for Rule 21 is found in sections
44-30-201, C.R.S.,
44-30-302, C.R.S.,
44-30-816, C.R.S., and
44-30-818, C.R.S. Amended
8/14/16