Current through Register 1531, September 27, 2024
(1) Hearings held
before the full commission pursuant to 205 CMR 101.01 shall be adjudicatory
proceedings conducted in accordance with M.G.L. c. 30A, §§ 10 and 11.
All hearings shall be further held under
205 CMR 101.00, as
applicable, and
801 CMR
1.02: Informal/Fair Hearing
Rules, unless the applicant/petitioner makes a written request for a
hearing under
801 CMR 1.01:
Formal Rules. In that event the commission shall determine,
based on the facts and circumstances of the matter, whether
801 CMR 1.01 or
1.02
will apply in order to ensure a fair outcome. Such determination shall be based
on such factors as the complexity of the issues presented, whether all parties
are represented by counsel, and similar considerations. Conflicts between
801 CMR 1.01 or
1.02
and
205 CMR 101.00 shall be
resolved in favor of
205 CMR 101.00. If the
commission grants a request for a hearing to be held pursuant to
801 CMR 1.01, the
provisions of
801 CMR 1.01(1), (2), (3), (5), (6),
(11) and (14) shall not apply.
(2) The following types of adjudicatory
hearings shall be held directly, in the first instance, by the commission:
(a) Suitability hearings before the
commission pursuant to M.G.L. c. 23K, § 17(f), concerning any findings of
fact, recommendations and/or recommended conditions by the Bureau relative to
the suitability of the applicant for an initial gaming license or renewal of a
gaming license, including without limitation, recommendations and recommended
conditions resulting from the RFA-1 or new qualifier process pursuant to
205 CMR 115.00:
Phase 1 and New Qualifier Suitability Determinations, Standards and
Procedures.
(b) Hearings
regarding the failure of a gaming licensee or qualifier to maintain adequate
suitability as set forth in
205 CMR
115.01(4) and any adverse
action taken against a gaming licensee or qualifier as a result of said
failure.
(c) Hearings regarding the
termination, revocation or suspension of a category 1 or category 2 gaming
license issued by the commission pursuant to M.G.L. c. 23K, and/or the addition
or modification of a condition thereto, or the termination, revocation or
suspension of a license to conduct a racing meeting pursuant to M.G.L. c.
128A.
(d) Hearings regarding the
transfer of a category 1 or category 2 gaming license or the transfer of a
license to conduct a racing meeting or related to the transfer of interest in a
category 1 or category 2 gaming license or gaming establishment in accordance
with
205 CMR 116.08 through
116.10;
(e) Hearings regarding the assessment of a
civil administrative penalty pursuant to M.G.L. c. 23K, § 36, against a
category 1 or category 2 gaming licensee or a racing meeting
licensee.
(f) Hearings regarding
the approval or amendment of the gaming licensee's Operation Certificate as
discussed in
205 CMR 151.00:
Requirements for the Operations and Conduct of Gaming at a Gaming
Establishment;
(g) For
purposes of reviewing a petition to reopen a mitigation agreement in accordance
with
205
CMR 127.04: Commission Review of a
Petition to Reopen a Mitigation Agreement.
(h) Any challenge to the certification or
denial of certification of an independent testing laboratory in accordance with
205 CMR
144.06: Independent Testing
Laboratory Certification and Auditing.
(i) Any challenge to the certification or
denial of certification as a gaming school in accordance with
205 CMR
137.01(4).
(j) Review of an application for a gaming
beverage license, or request to amend, alter, or add a licensed area, pursuant
to
205 CMR
136.03(4).
(3) Any request for such a hearing
shall be filed with the clerk of the commission on a form provided by the
clerk. Such a request shall not operate as a stay of the underlying action
unless specifically allowed by the commission upon motion of the aggrieved
party. A request for a stay may be allowed at the commission's discretion if
one or both of the following two circumstances are demonstrated by the
aggrieved party:
(a)
1. there is a likelihood that the party
seeking the stay will prevail on the merits of the case; and
2. there is a likelihood that the moving
party will be harmed irreparably absent a stay.
(b)
1. the
consequences of the decision(s) to be made in the case are
far-reaching;
2. the immediate
impact upon the parties in a novel and complex case is substantial;
or
3. a significant legal issue(s)
is involved.
(4) In order to be considered by the
commission, a request for a hearing must be filed no later than 30 days from
the date the complained of action was taken, except in the event of civil
administrative penalties. The request for review of a civil administrative
penalty issued by the Bureau pursuant to M.G.L. c. 23K, § 36 shall be
filed no later than 21 days after the date of the Bureau's notice of issuance
of the civil administrative penalty and such a request must comply with the
provisions of M.G.L. c. 23K, § 36(e). In the case of a temporary
suspension of a license by the Bureau in accordance with M.G.L. c. 23K, §
35(e), a gaming licensee shall be entitled to a hearing before the Commission
within seven days after the suspension was issued.
(5) The request for a hearing shall include:
(a) the contact information of the party
requesting the hearing;
(b) the
contact information of counsel representing the party requesting the hearing,
if any; and
(c) a brief description
of the basis for the request for the hearing. In the event that a temporary
suspension has been issued in accordance with M.G.L. c. 23K, § 35(e), at
its election the licensee may include a request that the hearing be scheduled
within seven days of the date of the issuance of the suspension. If the matter
involves a civil administrative penalty, the request shall include a written
statement denying the occurrence of any of the acts or omissions alleged by the
Bureau in the notice, or assert that the amount of the proposed civil
administrative penalty is excessive.
(6) The failure of a party to provide a
specific description of the basis for the request for hearing may result in the
dismissal of the request per the discretion of the commission.
(7) Any adjudicatory hearing conducted under
205 CMR 101.01 may be closed to the public at the request of either party, or
on the commission's own initiative, in order to protect the privacy interests
of either party or other individual, to protect proprietary or sensitive
technical information including, but not limited to, software, algorithms and
trade secrets, or for other good cause shown. Such a determination rests in the
sole discretion of the commission.
(8) Pursuant to M.G.L. c. 23K, § 3(h),
the chair may direct that all of the commissioners participate in the hearing
and decision of the matter before the commission. In the alternative, pursuant
to M.G.L. c. 23K, § 3(h), the chair with the concurrence of one other
commissioner may appoint a single commissioner to preside over the hearing. The
notice scheduling the time and place for the hearing shall specify whether the
commission or a designated individual shall act as presiding officer in the
particular case.
(9)
Burden of Proof
(a)
The applicant shall have the affirmative obligation to establish by clear and
convincing evidence both its affirmative qualification for licensure and the
absence of any disqualification for licensure.
(b) In the case of a recommendation to
terminate, revoke or suspend a category 1 or category 2 gaming license, or a
license to conduct a racing meeting, the bureau or the racing division, as
appropriate, shall have the affirmative obligation to establish by substantial
evidence grounds upon which the commission should terminate, revoke or suspend
the licensee's category 1 or category 2 gaming license or the licensee's
license to conduct a racing meeting.
(c) In the case of an adverse action taken
against a gaming licensee or qualifier for failure to maintain their
suitability pursuant to
205 CMR
115.01(4) the Bureau or the
racing division, as appropriate, shall have the affirmative obligation to
establish by substantial evidence the lack of clear and convincing evidence
that the gaming licensee or qualifier remains suitable.
(d) In the case of a transfer of interest,
the gaming licensee shall have the affirmative obligation to establish by clear
and convincing evidence its compliance with
205 CMR 116.09:
Approval.
(e) In
the case of a civil administrative penalty, the Bureau shall have the
obligation to prove the occurrence of each act or omission by a preponderance
of the evidence.
(10)
Decisions. Upon completion of the hearing, the
Commission shall render a written decision as promptly as administratively
feasible, in accordance with M.G.L. c. 30A, § 11(8). The written decision
of the Commission shall be the final decision of the Commission.
(11)
Appeal.
Pursuant to M.G.L. c. 23K, § 17(g), the applicant and/or the gaming
licensee shall not be entitled to any further review from the Commission's
determination of suitability. Decisions by the Commission concerning the
matters set forth in 205 CMR 101.01(2)(b) may be reviewed by the appropriate
court pursuant to the provisions of M.G.L. c. 30A.
