Current through Register Vol. 54, No. 44, November 2, 2024
(a) A schedule of licensing hearings for all
slot machine license applicants will be posted on the Board's web
site.
(b) The Board may schedule
prehearing conferences under §
491a.9 (relating to prehearing and
other conferences) to address issues related to licensing hearings.
(c) The Board will allot each applicant a
specified time for its presentation. The length of the presentations, which
shall be the same for each applicant within each category, will be established
by the Board.
(d) At a licensing
hearing, an applicant shall appear before the Board and at all times have the
burden to establish and demonstrate, by clear and convincing evidence, its
eligibility and suitability for licensure and to address the criteria
identified in section 1325(c) of the act (relating to license or permit
issuance).
(e) For the purposes of
this section, an applicant's demonstration of eligibility must include a
showing of compliance with:
(1) Section 1302,
1303, 1304 or 1305 of the act, as applicable.
(2) The application requirements in §
441a.3 (relating to slot machine
license application).
(3) The
license fee payment bond or letter of credit requirements in §
441a.5 (relating to license fee
payment bond or letter of credit requirements).
(4) The diversity requirements in Chapter
481a (relating to diversity) and section 1325(b) of the act.
(f) For the purposes of this
section, an applicant's demonstration of suitability must include a showing of:
(1) Good character, honesty and integrity in
compliance with section 1310 of the act (relating to slot machine license
application character requirements).
(2) Financial fitness in compliance with
section 1313 of the act (relating to slot machine license application financial
fitness requirements).
(3)
Operational viability, including:
(i) The
quality of the proposed licensed facility, and temporary land-based facility,
if applicable, including the number of slot machines and table games proposed
and the ability of the proposed licensed facility to comply with statutory,
regulatory and technical standards applicable to the design of the proposed
licensed facility and the conduct of slot machine and table game operations
therein.
(ii) The projected date of
the start of operations of the proposed licensed facility and any accessory
uses such as hotel, convention, retail and restaurant space proposed in
conjunction therewith. Applicants shall provide the Board with a time line on
the deliverability of proposed temporary land-based or phased permanent
licensed facilities and the accessory uses proposed in conjunction
therewith.
(iii) The ability of the
applicant's proposed licensed facility to generate and sustain an acceptable
level of growth of revenue.
(g) For the purposes of this section, an
applicant's demonstration of how it addresses the criteria identified in
section 1325(c) of the act must include:
(1)
The location and quality of the proposed facility, including, but not limited
to, road and transit access, parking and the facility's proximity to its
anticipated market service area.
(2) The potential for new job creation and
economic development which are expected to result from granting a license to an
applicant.
(3) The applicant's good
faith plan to recruit, train and enhance diversity in all employment
classifications in the facility.
(4) The applicant's good faith plan for
enhancing the representation of diverse groups in the operation of its facility
through the ownership and operation of business enterprises associated with or
utilized by its facility or through the provision of goods or services utilized
by its facility and through the participation in the ownership of the
applicant.
(5) The applicant's good
faith effort to assure that all persons are accorded equality of opportunity in
employment and contracting by it and any contractors, subcontractors,
assignees, lessees, agents, gaming service providers and suppliers the
applicant may employ directly or indirectly.
(6) The potential for enhancing tourism which
is expected to result from granting a license to the applicant.
(7) The history and success of the applicant
in developing tourism facilities ancillary to gaming development in other
locations if applicable to the applicant.
(8) The degree to which the applicant
presents a plan for the project which will likely lead to the creation of
quality, living-wage jobs and full-time permanent jobs for residents of this
Commonwealth generally and for residents of the host political subdivision in
particular.
(9) The record of the
applicant and its developer in meeting commitments to local agencies,
community-based organizations and employees in other locations.
(10) The degree to which potential adverse
effects which might result from the project, including costs of meeting the
increased demand for public health care and treatment of problem gamblers and
their families, child care, public transportation, affordable housing and
social services, will be mitigated.
(11) The record of the applicant and its
developer regarding compliance with:
(i)
Federal, State and local discrimination, wage and hour, disability and
occupational and environmental health and safety laws.
(ii) State and local labor relations and
employment laws.
(12) The
record of the applicant in dealing with its employees and their representatives
at other locations.
(13) The
applicant's business probity, experience and ability.
(14) Areas of deficiency in the applicant's
application previously identified by the Bureau or the Bureau of Licensing that
have not been resolved.
(h) The applicant's demonstration of how it
addresses section 1325(c) of the act and subsection (g) may include information
relating to its affiliates, intermediaries, subsidiaries or holding
companies.
(i) No later than 30
days before the first scheduled licensing hearing in the category of license
for which the applicant has filed an application, the applicant shall file with
the Board a memorandum identifying all evidence it intends to use in support of
its presentation before the Board. At the same time, Category 1 and Category 3
applicants shall serve the memorandum on the other applicants in the same
category. At the same time, Category 2 applicants shall serve the memorandum on
all other applicants whose proposed facility meets the same location criteria
as the applicant's proposed facility as specified in subsection
(n)(1)(i)-(iii). The memorandum must include the following:
(1) The name of the applicant and docket
number of the applicant's application to which the evidence will
relate.
(2) Identification of each
standard and criterion in subsections (d)-(f) to which the evidence will
relate.
(3) As to each criterion
identified, whether the evidence will be presented through oral testimony or
the proffer of documents, or both. If any portion of the evidence will be
presented through oral testimony, the notice must include the name, address and
telephone number of each testifying witness, the identified criteria about
which the witness will testify and a detailed summary of the witness'
testimony. If any portion of the evidence will be presented through the proffer
of documents, including reports and exhibits, the memorandum must include a
copy of each document to be proffered and the name, address and telephone
number of the persons who prepared the document.
(4) If any person identified in paragraph (3)
will testify as an expert, the person's qualifications, including the person's
education, experience and training, and a listing of the other jurisdictions
where the person has been qualified as an expert witness within the last 5
years, shall be attached to the notice. A copy of the results or reports of any
tests, experiments, examinations, studies or documents prepared or conducted by
the expert or about which the expert will testify or which will be relied upon
by the expert to render an opinion shall be attached to the notice.
(5) Documents required under paragraphs (3)
and (4) that have already been submitted to the Board and made part of the
public record may be referenced instead of being included with the memorandum
identifying all evidence an applicant intends to use in support of its
presentation before the Board.
(j) The Board will serve on all applicants
within that category any expert reports developed for and requested by the
Board that pertain to the applicants.
(k) Applicants, at the time of filing, shall
provide the Board with an electronic version, in a format prescribed by the
Board, of the reports and exhibits provided in paper form.
(l) If an applicant designates any submitted
report or exhibit as confidential under §
401a.3 (relating to definitions)
or section 1206(f) of the act (relating to Board minutes and records), the
applicant shall:
(1) Clearly and conspicuously
indicate that the report or exhibit is confidential in both the paper and
electronic format and provide these exhibits separately from the
nonconfidential exhibits.
(2)
Request that the confidential information be presented to the Board in an
executive session in accordance with
65 Pa.C.S. §
708(a)(5) (relating to
executive sessions) and provide an explanation of the need for the designation
of confidentiality and presentation during an executive session or authorize
the release of the report or exhibit in compliance with section 1206(f)(5) of
the act.
(m) Applicants
are prohibited from relying upon or introducing new evidence, including
witnesses' testimony, reports or exhibits, not identified under subsection (i)
or (n), except in the following circumstances:
(1) Applicants may update or supplement
evidence, including witnesses' testimony, reports or exhibits to respond to
requests from the Board or Board staff.
(2) Applicants may update or supplement
evidence, including witnesses' testimony, reports or exhibits to respond to
issues raised subsequent to the filing of the memorandum required by subsection
(i) at a prehearing conference if the issues could not have been reasonably
anticipated by the applicant.
(n) For Category 2 and Category 3 applicants
only, in addition to the applicant's presentation of evidence to the Board
relative to its eligibility and suitability for a license, an applicant may,
during its licensing hearing, present evidence which sets forth a comparison
between the applicant and other applicants within the same category with
respect to the standards and criteria in subsections (e)-(h).
(1) Comparisons must be limited to:
(i) For applicants seeking to locate a
licensed facility in a city of the first class, other applicants for a licensed
facility in a city of the first class.
(ii) For applicants seeking to locate a
licensed facility in a city of the second class, other applicants for a
licensed facility in a city of the second class.
(iii) For applicants seeking to locate a
licensed facility in a revenue-enhanced or tourism-enhanced location, other
applicants for a licensed facility in a revenue-enhanced or tourism-enhanced
location.
(iv) For applicants
seeking to locate a licensed facility in a well-established resort hotel, other
applicants for a licensed facility in a well-established resort
hotel.
(2) If an
applicant desires to present comparative evidence under this subsection, the
applicant shall, no later than 20 days prior to the commencement of the first
scheduled licensing hearing in the category of license for which the applicant
has filed an application, file with the Board Clerk a separate written notice
evidencing the intent identifying each other applicant about whom the applicant
desires to present evidence. A copy of the notice shall be served on the
applicants about whom the evidence will be presented and on the Chief
Enforcement Counsel. The notice must include:
(i) The name of the applicant and docket
number of the applicant's application to which the evidence will
relate.
(ii) Identification of the
standards and criteria in subsections (e)-(h) to which the evidence will
relate.
(iii) As to each criterion
identified, a copy of any document or evidence that will be used to support the
comparison to be presented in compliance with subsection (i).
(3) An applicant served with
notice under paragraph (2) may present, during its licensing hearing,
comparative evidence concerning it and the applicant from who notice was
received with respect to the standards and criteria in subsections (e)-(h). The
applicant so served shall have 10 days following services to file a reply
notice with the Board which contains the information required by paragraph (2).
A complete copy of the reply notice shall be served on the applicant who
initially served notice under paragraph (2) and on the Chief Enforcement
Counsel.
(4) If the applicant plans
to present evidence to the Board concerning another applicant in an executive
session, the applicant shall provide notice to the other applicant and provide
any report or exhibit relied upon to the other applicant. The other applicant
may be represented in the executive session.
(o) At the discretion of the Board, an
applicant's presentation may include:
(1) Oral
presentation.
(2) Documentary
evidence submissions, including reports, photographs, audiovisual
presentations, exhibits or testimony of witnesses.
(p) The Board, its designee and Chief
Enforcement Counsel may:
(1) Examine or
question the applicant and witnesses called by the applicant or the Board
regarding their testimony and any aspect of the applicant's application and
relevant background.
(2) Recall the
applicant and other witnesses called by the applicant or the Board during the
licensing hearing for further questioning.
(q) A person who testifies at the licensing
hearing shall be sworn and testify under oath.
(r) Information obtained by the Bureau during
an applicant's background investigation based upon public record or upon
information otherwise in the public domain will be heard by the Board during
the licensing hearing. Information submitted by an applicant under section
1310(a) of the act or obtained by the Board or Bureau as part of a background
investigation from any source not in the public domain is considered
confidential. The Board may not require an applicant to waive any
confidentiality provided for in section 1206(f) of the act as a condition for
the approval of a slot machine license or any other action of the Board. The
Board may request that an applicant respond to inquiries related to
confidential information during a licensing hearing to promote transparency in
the regulation of gaming in this Commonwealth. An applicant who does not waive
the right to confidentiality shall:
(1) Invoke
the protection afforded the applicant under
4
Pa.C.S. §
1206(f) and
have the matter heard in executive session.
(2) Provide the reason on the record
explaining the basis for the invocation of confidentiality under §
407a.3(a)
(relating to confidential information).
(s) At its discretion, the Board may
terminate, recess, reconvene and continue the licensing hearing.
(t) An applicant may raise an objection to
the conduct of the hearing, procedure, process or rulings of the Board as it
relates to its own hearing or to the hearing of a competitive applicant as
follows:
(1) An objection may be raised orally
by stating the objection during the hearing of an applicant and the objection
shall be stenographically recorded upon the record. The Board may request
written briefing of the basis of the objection prior to issuing a
ruling.
(2) An objection relating
to the hearing of an applicant or to a hearing of a competitive applicant may
be raised by means of written objection filed with the Clerk no later than 2
business days after the action or event giving rise to the objection. A written
objection must clearly and concisely set forth the factual basis for the
objection and be accompanied by a legal brief addressing the legal basis
supporting the objection.
(3) If an
applicant objects to an action or event in the hearing of another applicant,
the caption of the objection must include the docket numbers of both
proceedings conspicuously displayed and shall be served upon counsel for the
other applicant by electronic means.
(4) In the event an objection is filed to the
hearing of another applicant, counsel for that applicant may file a responsive
brief within 2 business days of electronic service.
(5) An objection not raised as provided in
paragraphs (1)-(3) will be deemed waived.
(u) Each Category 1 and Category 3 applicant
may file a brief up to 25 pages in length within 10 days of the completion of
the hearing with respect to all applications within its category. Each Category
2 applicant may file a brief up to 25 pages in length within 10 days of the
completion of the hearing with respect to all applications that meet the same
location criteria as the applicant as specified in subsection (n)(1)(i)-(iii).
At the prehearing conferences, applicants in any category may waive the
opportunity to file briefs.
(v) At
the conclusion of the presentation of all testimony and evidence, the Board
will cause the record to be transcribed. The transcript and evidence shall
become part of the evidentiary record for the Board's consideration. For good
cause shown, the Board may seal portions of the record.
(w) Following submission of the applicants'
briefs, all applicants will have an opportunity to make final remarks in the
form of oral argument before the Board in a manner and time prescribed by the
Board. At the prehearing conferences, applicants in any category may waive the
opportunity for oral argument.
(x)
Upon the conclusion of the licensing hearings and upon review of the
evidentiary record in its entirety, the Board will consider, approve, condition
or deny the slot machine license applications. A final order, accompanied by
the Board's written decision, will be served on the applicants for slot machine
licenses.
(y) An applicant may
appeal the denial of a slot machine license to the Pennsylvania Supreme Court
as provided in the act.
(z) This
subsection pertains exclusively to intervention in a licensing hearing for a
slot machine license under this section and is not applicable to other hearings
before the Board. The right to intervene in a hearing under this section is
within the sole discretion of the Board.
(1) A
person wishing to intervene in a licensing hearing for a slot machine license
shall file a petition in accordance with this subsection.
(2) A person may file a petition to intervene
under this subsection if the person has an interest in the proceeding which is
substantial, direct and immediate and if the interest is not adequately
represented in a licensing hearing.
(3) Petitions to intervene in a licensing
hearing may be filed no later than 45 days prior to the commencement of the
first scheduled licensing hearing, in the category of license for which the
applicant, in whose hearing the petitioner seeks to intervene, has filed an
application unless, in extraordinary circumstances for good cause shown, the
Board authorizes a late filing. At the same time the petitioner files its
petition with the Board, a complete copy of the petition to intervene shall be
served on the Chief Enforcement Counsel and the applicant in whose licensing
hearing the petitioner seeks to intervene.
(4) Petitions to intervene must set out
clearly and concisely the facts demonstrating the nature of the alleged right
or interest of the petitioner, the grounds of the proposed intervention, the
position of the petitioner in the proceeding and a copy of the written
statement to be offered under paragraph (6). The petitioner shall fully and
completely advise the applicant and the Board of the specific issues of fact or
law to be raised or controverted and cite provisions or other authority relied
on.
(5) The applicant may file an
answer to a petition to intervene, and in default thereof, will be deemed to
have waived any objection to the granting of the petition. If made, answers
shall be filed within 10 days after the date the petition is filed with the
Board, unless for cause the Board prescribes a different time. A complete copy
of the answer to the petition to intervene shall be served on the Chief
Enforcement Counsel and the petitioner who seeks to intervene.
(6) Except when the Board determines that it
is necessary to develop a comprehensive evidentiary record, the participation
of a person granted the right to intervene in a licensing hearing will be
limited to the presentation of evidence through the submission of written
statements attested to under oath. The written statements shall be part of the
evidentiary record.
(aa)
This section supersedes any conflicting provisions of Subpart H (relating to
practice and procedure) and 1 Pa. Code Part II (relating to General Rules of
Administrative Practice and Procedure).
The provisions of this § 441a.7 amended under
4
Pa.C.S. §§
1103,
1202(b)(9)-(23) and (30),
1205, 1206(f) and (g), 1207(1) and (2), 1208, 1209(b), 1212, 1213, 1317(c),
1317.1(c), 1317.2, 1326, 13A11, 13A12-13A14, 13A15 and 1802 and Chapter
13.
This section cited in 58 Pa. Code §
491a.8 (relating to hearings
generally); and 58 Pa. Code §
493a.12 (relating to
intervention).
