N.M. Admin. Code § 15.2.1.8 - COMMISSION
A.
Purpose:
(1) The New Mexico
racing commission created by the act, Section
60-1A-4, New Mexico Statutes,
1978, Annotated, is charged with implementing, administering and enforcing the
act. It is the intent of the commission that the rules of the commission be
interpreted in the best interests of the public and the jurisdiction.
(2) Through these rules, the commission
intends to encourage agriculture, the horse breeding industry, the horse
training industry, tourism and employment opportunities in this jurisdiction
related to horse racing and to control and regulate pari-mutuel wagering in
connection with that horse racing.
B.
General authority:
(1) The commission shall regulate each race
meeting and the persons who participate in each race meeting.
(2) To the extent permitted by the Act the
commission may delegate to the agency director and the stewards all powers and
duties necessary to fully implement the purposes of the Act.
C.
Membership and
meetings:
(1) The state racing
commission shall consist of five members, no more than three of who shall be
members of the same political party. They shall be appointed by the governor,
and no less than three of them shall be practical breeders of racehorses within
the state. Each member shall be an actual resident of New Mexico and of such
character and reputation as to promote public confidence in the administration
of racing affairs.
(2) The
commission shall meet at the call of the chair, as requested by a majority of
the members or as otherwise provided by statute. Notice of the meetings must be
given and the meetings must be conducted in accordance with the Open Meetings
Act, Sections
10-15-1 through
10-15-4 NMSA, 1978.
(3) If it is difficult or impossible for a
racing commission member to attend a meeting of the racing commissioners, that
member may participate in the meeting virtually or by telephone.
(4) A majority of the commission constitutes
a quorum. When a quorum is present, a motion before the commission is carried
by an affirmative vote of the majority of the commissioners present at the
meeting.
(5) A commission member
may not act in the name of the commission on any matter without a majority vote
of a quorum of the commission.
D.
Annual report: The commission
shall submit an annual report as prescribed by statute.
E.
Employees:
(1) The commission shall employ an agency
director who shall employ other employees necessary to implement, administer
and enforce the Act.
(2) The agency
director shall maintain the records of the commission and shall perform other
duties as required by the commission. Except as otherwise provided by a rule of
the commission, if a rule of the commission places a duty on the agency
director, the agency director may delegate that duty to another employee of the
commission. The commission and the agency director may not employ or continue
to employ a person:
(a) who owns a financial
interest in an association in this jurisdiction;
(b) who accepts remuneration from an
association in this jurisdiction;
(c) who is an owner, lessor or lessee of a
horse that is entered in a race in this jurisdiction; or
(d) who accepts or is entitled to a part of
the purse or purse supplement to be paid on a horse in a race held in this
jurisdiction.
(3)
Commission employees shall not wager in any pari-mutuel pool at any facility or
through any pari-mutuel system subject to the jurisdiction of the
commission.
(4) Commission
employees shall not participate in any gaming activity conducted by an
association during working hours on scheduled workdays.
F.
Power of entry:
(1) A member or employee of the commission, a
steward, a peace officer or a designee of such a person may enter any area on
association grounds or other place of business of an association at any time to
enforce or administer the Act or commission rules.
(2) No licensee may hinder a person who is
conducting an investigation under, or attempting to enforce, or administer, the
Act or commission rules.
G.
Subpoenas:
(1) A member of the commission, the agency
director, the stewards, the presiding officer of a commission proceeding or
other person authorized to perform duties under the Act may require by subpoena
the attendance of witnesses and the production of books, records, papers,
correspondence and other documents.
(2) Any aggrieved person or any licensee or
license holder against whom allegations of violations of racing statutes or
rules have been made shall have the right to have subpoenas and subpoenas duces
tecum issued as of right prior to the hearing to compel discovery as provided
in these rules and to compel the attendance of witnesses and the production of
relevant physical evidence upon making written and timely request therefor to
the commission or hearing officer; the issuance of such subpoenas after the
commencement of the hearing rests in the discretion of the commission or the
hearing officer.
(3) A member of
the commission, the agency director, a presiding officer of a commission
proceeding or other person authorized by the commission may administer an oath
or affirmation to a witness appearing before the commission or a person
authorized by the commission.
(4)
If a person fails to comply with a subpoena issued on behalf of the commission,
the commission or agency director may invoke the aid of the appropriate court
in requiring compliance with the subpoena. For a person compelled to appear
before the commission under this section, the commission shall pay expenses in
accordance with the statutory provisions for state employees. The commission
reserves the right to bill the expenses to parties requiring the appearance of
the subpoenaed person.
H.
Organization's financial requirements:
(1) The New Mexico horse breeders'
association shall establish interest-bearing accounts, designated as gaming
funds for purses.
(2) The New
Mexico horse breeders' association shall ensure all accounting of funds
deposited with and paid out or distributed by the New Mexico horse breeders'
association pursuant to the Horse Racing Act is in accordance with or exceeds
generally accepted accounting principles.
(3) The New Mexico horse breeders'
association shall provide at a minimum the following insurance policies:
(a) $1,000,000 cyber liability
(b) $1,000,000 directors, officers, and
employment practices
(c) $1,000,000
employee theft
(4) The
New Mexico horse breeders' association will provide the New Mexico racing
commission with a copy of their yearly independent audits, and proof of
insurance.
(5) The associations and
the New Mexico horse breeders' association with regard to gaming monies shall
keep accurate, complete, and legible records with reports to the commission to
include:
(a) monthly reconciliation of amounts
collected to account statements;
(b) copy of account authorizing
signatures;
(c) any changes in
authorizing signatures; and
(d)
detail of disbursements from the accounts.
I.
Records:
(1) Inspection and copying of commission
records are governed by the provisions of the Inspection of Public Records Act,
Sections 14-2-1 through
14-2-12 NMSA 1978.
(2) Except as otherwise authorized by
statute, or regulation, all original records of the commission shall be
maintained in the offices of the commission. No person may remove an original
record from the offices of the commission without the approval of the agency
director.
(3) To inspect commission
records, a person must make a written request to the appointed records official
and to receive copies must pay all costs for copying within the limits set by
the Public Records Act.
J.
Issuance of license to conduct a
race meeting and allocation of race dates:
(1) The commission shall allocate race dates
to each association in accordance with the act and these rules. An association
shall apply to the commission for a license and racing dates not later than
June 1st for all proposed racing meets and dates to be run in the succeeding
calendar year. Applications shall not be received or amended after this date
except by approval of a majority of the commission. The application must
contain the information required by statute and the commission. After the
request is filed, the commission may require the association to submit
additional information. The commission may limit, condition or otherwise
restrict any license to conduct horse racing or a horse race meeting in the
state of New Mexico.
(2) The burden
of proof is on the association to demonstrate that its receipt of a license to
conduct a race meet and the allocation of the race dates will be in the public
interest and will achieve the purposes of the act.
(3) In issuing licenses for race meetings and
allocating race dates under this section, the commission may consider the
following factors: public interest, health of the industry, safety and welfare
of participants, and the criteria for licensure to conduct a race meet set
forth in the act and in these rules.
(4) Prior to approving an application for a
new license for a horse racetrack, other than the licenses in existence as of
January 1, 2007, or an application by a licensed horse racetrack to move its
racing and gaming facilities to a new location, the commission shall solicit
and consider the views on the application by the Indian tribes, nations and
pueblos in the following manner:
(a) provide
written notice to all federally recognized Indian tribes, nations or pueblos
that are authorized by law to enter into a gaming compact with the state of New
Mexico under the Indian Gaming Regulatory Act,
25 U.S.C. Section
2701 et seq., ("Indian Tribes") that such an
application has been filed with the commission within 15 days of such filing
and provide a copy of all non-confidential documents submitted by an applicant
to an Indian tribe upon request, at the Indian tribe's expense;
(b) allow Indian tribes 45 days to respond to
the application by submitting written comments to the commission prior to
holding any public hearing at which final action on the application may be
considered; such comments shall be immediately forwarded to the applicant by
the commission, but no later than 15 days prior to holding any public hearing
at which final action on the application may be considered; the views of the
Indian tribes may include, but are not limited to, the following:
(i) potential economic impact of approval of
said license on a specific Indian tribe's government or gaming facility,
including impact on revenue sharing with the state of New Mexico; the number of
miles from the nearest tribal gaming facility; the potential impact on the
nearest tribal gaming facility's market share; and the potential impact on the
Indian tribe's income from gaming facilities;
(ii) identification of other significant
impacts on the Indian tribe;
(c) any public hearing at which final action
on the application may be considered must be at least 15 days after the 45 day
comment period for Indian tribes set forth above;
(d) the commission shall consider and
evaluate the Indian tribes' views prior to taking any final action on the
application; to "consider and evaluate" means to think about carefully and
seriously;
(e) the above procedures
for notification to Indian tribes shall not apply to the annual renewal of a
horse racetrack license.
(5) The association shall be obligated to
conduct pari-mutuel racing, except in the case of emergencies, on each race
date allocated. Any change in race dates must be approved by the commission. In
the case of emergencies the stewards may authorize cancellation of all or a
portion of any race day.
(6) All
applicants for an initial license to conduct horse racing or a horse race
meeting in the state of New Mexico shall submit the following information to
the commission in the form of a verified application, including an original and
six copies.
(a) The name of the applicant and
indicate whether it is an individual, firm, association, partnership,
corporation or other legal entity.
(b) The names, residences, and nationalities
of individual applicants or members of a partnership, association or
firm.
(c) If the applicant is a
corporation, the following information must be furnished, and if the applicant
is a parent or subsidiary of another corporation, the following information
must be furnished for each entity.
(i) The
year in which the corporation was organized, its form of organization and the
name of the state under the laws of which it was organized. Articles of
incorporation and bylaws must also be submitted.
(ii) The classes of capital stock authorized,
the amount authorized, and the amount outstanding as of the date not less than
15 days prior to the filing of the application.
(iii) The name and address of each person who
owns of record or is known by the applicant to own beneficially, ten percent or
more of any class of capital stock. This can be indicated as name and address;
class of stock owned; type of ownership whether of record or beneficial; amount
owned; percent of the class of stock.
(iv) Outline briefly the dividend rights,
voting rights, liquidation rights, preemptive rights, conversion rights, and
redemption provisions. If the rights of holders of such stock may be modified
other than by a vote of majority or more of the shares outstanding, voting as a
class, so state and explain briefly.
(v) If organized as a corporation within the
past five years, furnish the names of the promoters, the nature and amount of
anything of value received or to be received by each promoter directly or
indirectly from the applicant and the nature and amount of any assets,
services, or other consideration therefore received or to be received by the
applicant.
(vi) List the names of
all directors and executive officers and all persons chosen to become directors
or executive officers. Indicate all other positions and offices held by each
such person, and the principal occupation during the past five years of each
person to become a director or executive officer. For the purposes of this
subparagraph, "executive officer" means the president, vice-president,
secretary and treasurer, and any other person who performs policy-making,
supervisory, administrative, or financial functions for the
applicant.
(vii) Describe in detail
the financial arrangements, which have been made for acquisition and operation
of racing facilities, including the nature and source of any funds or other
property, real or personal, which may be used in this connection.
(viii) Identify in detail the source(s) and
terms of any loans, loan commitments, lines of credit, pledges, stock
subscriptions, and any other source of funds which may be used in the
acquisition or operation of racing facilities.
(ix) State in detail the terms of any
proposed purchase of stock or assets in a current licensee.
(x) State whether a substantial portion of
the assets or of the capital stock is encumbered by any short-term or long-term
debt. Explain fully and state the names and addresses of parties holding
security interests or promissory notes from the applicant and the stockholders,
where the stock is pledged as security, and outline the terms of and submit the
agreements creating the security interests.
(xi) Applicants must submit balance sheets
and profit and loss statements for each of the three fiscal years immediately
preceding the application, or for the period of organization if less than three
years. If the applicant has not completed a full fiscal year since its
organization, or if it acquires or is to acquire the majority of its assets
from a predecessor within the current fiscal year, the financial information
shall be given for the current fiscal year.
(xii) Applicant must submit with application
a current financial statement for each director, executive officer, manager,
and stockholders owning ten percent or more of the outstanding shares in any
corporate applicant.
(xiii) All
financial information shall be accompanied by an unqualified opinion of a duly
licensed certified public accountant, or if the opinion is given with
qualifications, the reasons for the qualifications must be stated.
(xiv) For applicants other than corporation,
list the names and addresses of all executive officers and managerial officers.
Indicate positions and offices held by each person named and their principal
occupation(s) during the past five years.
(xv) State whether any director, executive
officer, manager, or stockholder has ever been convicted of a crime and
describe the circumstances of the convictions.
(xvi) Describe any pending legal proceedings
to which the applicant or any of its subsidiaries or parent corporations is
involved, or of which any of their property is the subject. Include the name of
the court or agency in which the proceedings are pending, the date instituted
and the principal parties thereto.
(xvii) State in complete detail whether the
applicant, or any director, executive officer, stockholder or manager has owned
an interest in or has been employed by any firm, partnership, association or
corporation previously licensed to conduct a race meeting in any
jurisdiction.
(xviii) State actual
legal description of a proposed site for racing facilities, names and addresses
of the titleholders to the real property and names and addresses of all
personal holding mortgages or other security interests in the
property.
(xix) State the number of
miles from the nearest population center, and describe briefly the
transportation facilities serving that population center.
(xx) State the exact dimensions of the track
proposed. Submit at least one copy of the architect's drawings showing detail
of the proposed construction. If a grandstand is in existence, describe the
size and type of construction.
(xxi) Describe the efforts to be made to
ensure the security safety and comfort of patrons and license
holders.
(xxii) State the
availability of fire protection and adequacy of law enforcement and police
protection.
(xxiii) State the
parking lot capacity and describe the construction and type of parking
facilities.
(xxiv) State the number
and type of construction of stables, other barn areas, forecourt and paddock
areas, indicating capacities and fire prevention facilities for all
areas.
(xxv) Describe the
facilities for owners, trainers, jockeys, grooms and other racing
personnel.
(xxvi) State the
arrangements for food and drink concessions indicating the names and addresses
of concessionaires and the terms of the concession contracts.
(xxvii) Describe any concessions, clubs or
other special facilities, existing or proposed, for patrons.
(xxviii) Indicate by actual dates the racing
days requested by applicant.
(xxix)
Indicate the kind of racing to be conducted.
(xxx) Describe the proposed pari-mutuel
operation in general and indicate in particular the terms of the pari-mutuel
ticket sales.
(xxxi) Describe
climatic conditions prevalent during the proposed racing season.
(xxxii) Indicate the population of the local
area, and the growth trend. Indicate the potential market including tourists,
transients and patrons from neighboring areas.
(xxxiii) Indicate the principal sources of
local income, showing the percentage from farming and ranching, industrial,
professional services, military and other governmental sources.
(xxxiv) Describe the effect of competition
with other racetracks in and out of the state and with other sports or
recreational facilities in the area.
(xxxv) Indicate what effect opposition from
area residents may have on the economic outlook for the proposed
track.
(xxxvi) Describe a strategic
plan to be proactive in an effort to prevent contagious equine diseases, and
biosecurity measures to be put in place in the event of an outbreak including
permanent quarantine facilities.
(7) A new complete primary application as
required in Paragraph (6) of Subsection J of
15.2.1.8 NMAC is also required if
any of the following events occur:
(a) if the
effective controlling interest of any licensee is transferred or
conveyed;
(b) if any involuntary
transfer of either tangible real or personal property or corporate stock gives
the effective control of the licensee to the transferee;
(c) in the event that a transfer under
Subparagraphs (a) and (b) occurs after the granting of racing dates, the
transferee shall immediately apply to the commission for a hearing to show
cause why the transferee should be permitted to continue racing under the
current grant of racing dates;
(d)
failure to make application within 90 days of the date of the proposed transfer
shall be grounds for revocation of license.
(8) A race meet licensee that has been
licensed for the previous year, must submit to the commission a renewal
application, on a form provided by the commission, containing the following
information:
(a) complete listing of officers,
directors of corporation, and secondary lender affiliates;
(b) proposed race dates and simulcast race
dates;
(c) at the time of annual
request for racing dates, when the commission in its discretion determines that
the licensee should supply current information;
(d) current financial statements;
(e) changes to articles of incorporation and
bylaws;
(f) list of concessionaires
and contract services;
(g) changes
from original application, or last renewal application, in mortgagee of real
property;
(h) insurance
policies;
(i) any other changes
from original primary application.
(9) The commission in addition to any other
legally sufficient reason, may disapprove, deny, refuse to renew, suspend, or
revoke a license to conduct horse racing or a horse race meeting in the state
of New Mexico if any person having any direct or indirect interest in the
applicant or in the licensee, or any nature whatsoever, whether financial,
administrative, policy-making or supervisory:
(a) has been convicted of a felony under the
laws of New Mexico, the laws of any other state or the laws of the United
States, unless sufficient evidence of rehabilitation has been presented to the
commission;
(b) has been guilty of
or attempted any fraud or misrepresentation in connection with racing, breeding
or otherwise, unless sufficient proof of rehabilitation has been presented to
the commission;
(c) has violated or
attempted to violate any law or regulation with respect to racing in any
jurisdiction, unless sufficient proof of rehabilitation has been presented to
the commission;
(d) has consorted
or associated with bookmakers, touts or persons of similar pursuits, unless
sufficient proof of rehabilitation has been presented to the
commission;
(e) is consorting or
associating with bookmakers, touts or persons of similar pursuits;
(f) is financially irresponsible as found or
determined by the commission; or,
(g) is a past or present member of or
participant in organized crime as such membership or participation may be found
or determined by the commission.
Notes
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