(1) An aggrieved party may file a request for
review of an order, decision, or civil administrative penalty issued by the
Bureau, where applicable, relative to the interpretation or application of a
statute, regulation, or other applicable authority, or order, decision, or
forfeiture issued by the racing judges or stewards, other than those enumerated
in
205 CMR
101.01(2), with the clerk of
the Commission on a form provided by the clerk. A request for review shall not
operate as a stay of the order, decision, or civil administrative
penalty/forfeiture, unless specifically allowed by the hearing officer upon
motion of the aggrieved party. A request for a stay may be allowed at the
hearing officer's discretion if one or both of the following two circumstances
are present:
(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.
(2) All requests for review, aside from those
for civil administrative penalties or an appeal in the case of any person
penalized or disciplined by the racing officials of a meeting licensed by the
Commission, must be filed no later than 30 days from the date of the order or
decision. The request for review of a civil administrative penalty issued by
the Bureau pursuant to M.G.L. c. 23K, § 36 shall be filed within 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). The request for an appeal in the case of any person penalized or
disciplined by the racing officials of a meeting licensed by the Commission
must be filed within ten days of the date of said penalty or imposition of said
discipline.
In the case of the temporary suspension of a license by the
Bureau in accordance with M.G.L. c. 23K, § 35(e), a licensee shall be
entitled to a hearing before a hearing officer within seven days after the
suspension was issued.
(3)
The request for review shall include:
(a)
contact information of the party requesting review;
(b) contact information of counsel
representing the party requesting review, if any;
(c) a specific description of the basis for
the request for review. 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; and (d) a
copy of the order or fine that is the subject of the request for
review.
(4) The
failure of a party to provide a specific description of the basis for the
request for review in accordance with
205
CMR
101.03(3)(c) shall be
grounds for dismissal of the request per the discretion of the hearing
officer.
(5) Upon receipt, the
clerk shall assign the request for review to a hearing officer and schedule the
hearing. Mailing of notice to the address on record with the Commission, or
emailing the notice to the email address provided by the licensee or registrant
on their application for licensure or registration shall be deemed satisfactory
notice. The notice of hearing shall contain:
(a) The name of the petitioner; and
(b) The date, time and place of the
hearing.
(6) Any
adjudicatory hearing conducted under 205 CMR
101.02 may be closed to the public
at the request of either party in order to protect the privacy interests of
either party or other individual, to protect proprietary technical information
including, but not limited to, software, algorithms and trade secrets, or for
other good cause shown. Any such request may be opposed by the other party. The
final determination rests in the sole discretion of the hearing
officer.
(7)
(a) Upon receipt of the appeal, the hearing
officer shall, within ten days, schedule a telephone status conference with all
parties. During the status conference the hearing officer shall:
1. Address any argument that the proceeding
should proceed under
801 CMR
1.01:
Formal Rules;
2.
Establish a briefing schedule including deadlines for the filing of the
petitioner's brief and providing for a reasonable amount of time for the
respondent to file a reply brief;
3. Establish deadlines for the filing of a
witness list and exhibit list at reasonable amount of time before the hearing
date;
4. Establish a briefing
schedule with respect to any anticipated motions including deadlines for the
filing of the movant's brief and providing for a reasonable amount of time for
the respondent to file a reply brief; and
5. After completion of the status conference,
the hearing officer shall issue a written order memorializing all deadlines and
provide it to all parties.
(b) After the initial status conference,
either party may file a brief explaining how they believe the matter should be
decided including the specific relief requested. No late briefs shall be
accepted without express permission of the hearing officer. No sur-reply briefs
shall be accepted without express permission of the hearing officer. No brief
shall be longer than 15 double-spaced pages without express permission of the
hearing officer.
A party may request permission to file a brief longer than 15
pages. Such request shall be filed with the clerk who will forward it to the
hearing officer for review. The request must be in writing and state the number
of additional pages requested. It shall be up to the discretion of the hearing
officer as to whether to grant such request. If the hearing officer grants a
request for additional pages, the clerk shall forward the order of the hearing
officer to all parties and all parties shall have the right to file such
additional number of pages.
(8) With or without the submission of a
brief, each party shall submit a copy of all written documentary evidence they
intend to offer for consideration by the hearing officer as well as a list of
all witnesses that the party intends to present at the hearing. The documentary
evidence and witness lists shall be provided on or before the date determined
by the Hearing Officer during the initial status conference. Failure to submit
a brief shall not preclude a party from submitting written evidence or calling
witnesses to be considered by the hearing officer. Upon request, the petitioner
shall be provided an opportunity in advance of the hearing to examine and copy
the entire content of their case file and all other documents to be used by the
Commission, bureau, or racing division. All materials submitted to the
clerk/hearing officer including, but not limited to, briefs, evidence and
witnesses lists, shall be contemporaneously provided to the all other parties
and their counsel via first-class mail or e-mail. Evidence or
witnesses that are filed without providing reasonable notice to the opposing
party may be precluded at the hearing officer's discretion.
(9) All requests for extensions of time to
file a brief or to reschedule a hearing date shall be made in writing and filed
with the clerk. No request for extension of time to file a brief or to
reschedule a hearing shall be considered, unless it is made at least seven days
prior to the hearing date or briefing deadline. The clerk of the Commission may
issue orders on procedural and scheduling matters consistent with M.G.L. c.
23K, and 205 CMR in order to further the efficient administration of the
Commission's hearings process. The clerk may provide an extension of time to
file a brief or reschedule a hearing date in the clerk's discretion and for
good cause shown. The clerk shall send the order granting an extension of time
to file a brief or the rescheduling of a hearing date to all parties. Any order
shall include the number of days granted for the extension of time or the new
date for the rescheduled hearing. Absent extenuating circumstances, no hearing
shall be rescheduled more than once.
In the event of the appeal of a decision by the Racing judges
or stewards, if the petitioner fails to appear at the hearing, the Hearing
Officer, after determining that the petitioner received proper notice of the
hearing, shall dismiss the matter. In the event of a matter before the hearing
officer concerning an action taken by the bureau, the bureau may proceed with a
hearing before the Hearing Officer, even in the absence of the petitioner,
after determining that the petitioner received proper notice of the
hearing.
(10) Hearings held
before the hearing officer pursuant to 205 CMR
101.02 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 hearing officer 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
hearing officer grants a request that a hearing 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.
(11)
(a)
There shall be no motions or formal discovery allowed in hearings under 205 CMR
101.02, unless upon the request of a party and for good cause shown, the
hearing officer allows such motions or formal discovery request to be served.
In the event that motions or formal discovery are allowed by the hearing
officer, the hearing officer shall also set forth a reasonable schedule for
responding to such motions or discovery requests.
(b) In the event that the hearing concerns an
appeal from a decision of the Racing Judges involving a violation of
205 CMR
3.29, 205 CMR
101.02(11)(a) shall not apply
and the formal discovery (beyond those documents submitted by the Racing
Division in support of its decision) shall be limited to the production of the
Laboratory Documentation package of the Commission approved laboratory. The
Laboratory Documentation Package shall comply with industry best practices as
established by the Racing Medication and Testing Consortium's Laboratory
Accreditation Requirements and Operating Standards, Appendix
C.
(12) A written
transcript or electronic record of each hearing shall be created and all
witnesses presenting testimony shall be sworn to testify under oath.
(13) In addition to the duties and powers of
the hearing officer under
801 CMR
1.02(10)(f), the hearing
officer shall make all factual and legal findings necessary to reach a
decision, including evaluating the credibility of all witnesses and evidence
presented. The hearing officer may ask questions of a party or a witness at the
hearing. The hearing officer can request additional information from any party
and may recess or continue the hearing to a later date. Any party to such a
hearing shall be entitled to issue subpoenas as approved by the hearing officer
in compliance with 205 CMR
101.02(11) and in accordance with M.G.L. c. 30A,
§ 12(3). The hearing officer may request a post-hearing brief from the
parties and shall determine the page limit for such brief and the time by which
it must be submitted. The parties may request leave of the hearing officer to
submit a post-hearing brief as long as such a request is made within ten days
of the hearing.
(14) The standard
of review of an order or fine issued by the bureau or the racing division shall
be the substantial evidence standard, unless a different standard is required
by M.G.L. c. 23K or M.G.L. c. 128A or M.G.L. c. 128C. The hearing officer shall
conduct a review of the matter, making findings of fact and conclusions of law
to render a decision. The hearing officer shall affirm the order issued by the
bureau or the racing division if there is substantial evidence to support
it.
(15) The hearing officer shall
issue a written decision as soon as administratively feasible after the close
of the hearing. The written decision shall include findings of fact and
conclusions of law and shall clearly state the basis for the hearing officer's
decision. The hearing officer shall file its decision with the clerk. The
decision of the hearing officer shall be the final decision of the Commission
unless a request for appeal to the Commission is filed by a party to the
proceeding within 30 days of the date of the hearing officer's decision. In the
event of a timely filed appeal of a civil administrative penalty to the
Commission, payment of any such penalty shall be stayed through the final
decision by the Commission.
(16)
The clerk shall send a copy of the decision to all parties and shall include
with the decision a letter stating that a party may request appeal of the
hearing officer's decision by the Commission and describing the process for
requesting an appeal by the Commission.
(17) The hearing officer is authorized to
certify any matter directly to the Commission. The exercise of such authority
will generally be reserved for matters of first impression or those which
present extraordinary or unique circumstances. Either party may also request
that the hearing officer certify such a matter for Commission review. The
Commission may accept and review the matter or may remand the matter to the
hearing officer. In the event that the Commission accepts the matter, such
hearings will be conducted in accordance with 205 CMR
101.02 in which the
Commission will perform the hearing officer's functions. Appeals of such
decisions may be taken in accordance with M.G.L. c. 30A in
lieu of
205
CMR
101.03.