205 CMR 101.01 - Hearings Before the Commission
(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:
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.
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.
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