PROPOSED RULEMAKING
PENNSYLVANIA GAMING CONTROL BOARD
[58 PA. CODE CHS. 511a AND 513a]
Persons Required to be Excluded; Underage Gaming
[37 Pa.B. 1490]
[Saturday, April 7, 2007]The Pennsylvania Gaming Control Board (Board), under the general authority in 4 Pa.C.S. § 1202(b)(30) (relating to general specific powers) and the specific authority in 4 Pa.C.S. §§ 1207(8), 1514 and 1515 (relating to regulatory authority of board; regulation requiring exclusion of certain persons; and repeat offenders excludable from licensed gaming facility), proposes to add Chapters 511a and 513a (relating to persons required to be excluded; and underage gaming) to read as set forth in Annex A.
Purpose of the Proposed Rulemaking
Under 4 Pa.C.S. § 1203 (relating to temporary regulations), the Board initially adopted temporary regulations in Chapter 511 at 36 Pa.B. 2905 (June 10, 2006) and in Chapter 513 at 36 Pa.B. 3441 (July 1, 2006). Under 4 Pa.C.S. Part II (relating to gaming), the temporary regulations expire on July 5, 2007.
The Board is proposing to replace the temporary regulations with the permanent regulations in this proposed rulemaking.
Explanation of Chapters 511a and 513a
The temporary regulations in Chapter 511 (relating to persons required to be excluded) implement 4 Pa.C.S. §§ 1514 and 1515. Sections 511.1 and 511.2 (relating to definitions; and maintenance and distribution of the list) define terms used in this chapter and specify the information the Board will provide to slot machine licensees about individuals on the exclusion list. These sections also provide that the exclusion list will be available to the public, both at the Board's offices and on the Board's website.
Sections 511.3--511.5 (relating to criteria for exclusion; duties of the Bureau; and procedure for entry of names onto the exclusion list) list the criteria the Board will use when determining whether or not an individual should be placed on the exclusion list; the duties of the Bureau of Investigations and Enforcement regarding the exclusion process, the process to be used to place a person on the exclusion list and the consequences of being placed on the exclusion list.
Sections 511.6 and 511.7 (relating to application for preliminary placement of a candidate on the exclusion list; and final order of exclusion) address a person's right to a hearing if the person is placed on the exclusion list, the conduct of such hearings and the Board's review of placements.
Section 511.8 (relating to information contained on the exclusion list) requires slot machine licensees to exclude or eject individuals who are on, or meet the criteria to be on, the exclusion list, to notify the Board if an excluded person is found in or attempts to enter a licensed facility and to notify the Board about any individual the slot machine licensee believes meets the criteria for exclusion.
Finally, § 511.9 (relating to duty of slot machine licensee) outlines the petition process that an individual who is on the exclusion list can use to request removal from the exclusion list.
The temporary regulations in Chapter 513 (relating to underage gaming) specify who is excluded from the gaming floor or from engaging in gaming activities based on age. Also included in Chapter 513 are regulations regarding the responsibilities of licensees, permittees, registrants and certification holders regarding underage gaming and defenses that cannot be used in enforcement actions.
Amendments to the temporary regulations in this proposed rulemaking include a large number of editorial changes in both chapters that improve the clarity of the language contained in the existing temporary regulations.
Additionally, § 511a.2 (relating to maintenance and distribution of the exclusion list) was amended to move the provision regarding what information would be provided to slot machine licensees from § 511.8 to this section. The substance of what was previously in § 511.2(c) has been moved to § 511a.8 (relating to duties of slot machine licensees).
In § 511a.4 (relating to duties of the Bureau), the Board has been deleted as an entity who may refer a person for investigation and law enforcement agencies and licensed facilities have been added as entities that can make a referral. Temporary subsection (d) has been deleted; it is no longer needed due to the amendments made to §§ 511a.6 and 511a.7 (relating to demand for hearing on the placement of a person on the exclusion list; Board review). Section 511a.5 (relating to placement on the exclusion list) has been expanded to address the enforcement action taken if an excluded person is caught gaming.
Sections 511a.6 and 511a.7 have been substantially amended to simplify and clarify the process for hearings on placement on the exclusion list and the Board review of placements.
The former § 511.8 has been deleted because the material in this section has been relocated to § 511a.2. In new § 511a.8 (formerly § 511.9), temporary § 511.2(c) is subsection (a).
In Chapter 513a, § 513a.2 (relating to exclusion requirements) has been amended to add check cashing privileges to the list of services that should not be provided to anyone under 21 years of age.
Section 513a.4 (relating to signage requirements) has been added to mandate posting signs that state that individuals under 21 years of age cannot engage in gaming activities, will be removed if found gaming and may be subject to arrest for trespass.
Affected Parties
This proposed rulemaking imposes requirements on slot machine licensees, persons who are placed on the excluded persons list and individuals who are not old enough to engage in gaming (under 21 years of age) or are too young to be on the gaming floor (under 18 years of age).
Fiscal Impact
Commonwealth. This proposed rulemaking will impose costs on the Board regarding placing individuals on the exclusion list, maintenance and distribution of the excluded persons list and enforcement of the provisions regarding exclusion and underage gaming.
Political subdivisions. This proposed rulemaking will have no significant fiscal impact on political subdivisions of the Commonwealth.
Private sector. Slot machine licensees will experience costs regarding training of employees, signage requirements and compliance with the requirements of the exclusion underage gaming provisions.
General public. Individuals seeking to dispute placement on or seeking removal from the exclusion list will experience some minor costs associated with the hearing and petition processes.
Paperwork Requirements
This proposed rulemaking requires slot machine licensees to maintain, update and disseminate information on excluded persons. A slot machine licensee is also required to submit the names of individuals it believes meet the criteria for placement on the excluded person list.
Individuals demanding a hearing will have to file a response to the notice served by the Clerk. Individuals seeking to be removed from the exclusion list will have to file a petition specifying the grounds for removal.
Effective Date
The proposed rulemaking will become effective upon final-form publication in the Pennsylvania Bulletin.
Public Comments
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed rulemaking, within 30 days after the date of publication in the Pennsylvania Bulletin to Paul Resch, Secretary, Pennsylvania Gaming Control Board, P. O. Box 69060, Harrisburg, PA 17106-9060, Attention: Public Comment on Regulation #125-57.
Contact Person
The contact person for questions about this proposed rulemaking is Richard Sandusky, Director of Regulatory Review, (717) 214-8111.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on March 28, 2007, the Board submitted a copy of this proposed rulemaking and a copy of the Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Gaming Oversight Committee and the Senate Community, Economic and Recreational Development Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.
THOMAS A. DECKER,
ChairpersonFiscal Note: 125-57. (1) State Gaming Fund; (2) Implementing Year 2006-07 is $50,000; (3) 1st Succeeding Year 2007-08 is $44,000; 2nd Succeeding Year 2008-09 is $45,000; 3rd Succeeding Year 2009-10 is $47,000; 4th Succeeding Year 2010-11 is $49,000; 5th Succeeding Year 2011-12 is $51,000; (4) 2005-06 Program--$26,400,000; 2004-05 Program--$13,200,000; 2003-04 Program--$2,900,000; (7) State Gaming Board; (8) recommends adoption.
(Editor's Note: In Annex A, some references to sections not yet adopted as permanent regulations appear in this proposed rulemaking. The section numbers of the permanent regulations will have an ''a'' indicator after the chapter number. Refer to the corresponding temporary regulations adopted by the Board when necessary.)
Annex A
TITLE. 58. RECREATION
PART VII. GAMING CONTROL BOARD
Subpart J. EXCLUSION OF PERSONS
CHAPTER 511a. PERSONS REQUIRED TO BE EXCLUDED Sec.
511a.1. Definitions. 511a.2. Maintenance and distribution of the exclusion list. 511a.3. Criteria for exclusion. 511a.4. Duties of the Bureau. 511a.5. Placement on the exclusion list. 511a.6. Demand for hearing on the placement of a person on the exclusion list. 511a.7. Board review. 511a.8. Duties of slot machine licensees. 511a.9. Petition to remove name from the exclusion list. § 511a.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Career or professional offender--A person, who for the purpose of economic gain, engages in activities that are deemed criminal violations under 18 Pa.C.S. (relating to crimes and offenses) or equivalent criminal violations in other jurisdictions, or engages in unlawful activities contained in section 1518(a) of the act (relating to prohibited acts; penalties).
Cheat--
(i) To alter, without authorization, the elements of chance, method of selection or criteria which determine:
(A) The result of a slot machine game.
(B) The amount or frequency of payment in a slot machine game.
(C) The value of a wagering instrument.
(D) The value of a wagering credit.
(ii) The term does not include altering for required maintenance and repair.
(iii) The term includes an act in any jurisdiction that would constitute an offense under section 1518(a)(6) and (a)(7) of the act.
Excluded person--A person who has been placed upon the exclusion list and who is required to be excluded or ejected from a licensed facility.
Exclusion list--A list of names of persons who are required to be excluded or ejected from a licensed facility.
§ 511a.2. Maintenance and distribution of the exclusion list.
(a) The Board will maintain a list of persons to be excluded or ejected from a licensed facility.
(b) The exclusion list will be open to public inspection at the Board's central office during normal business hours and will be distributed to every slot machine licensee within this Commonwealth, who shall acknowledge receipt thereof in writing or electronically.
(c) The following information will be provided to the slot machine licensees for each excluded person on the exclusion list:
(1) The full name and all aliases the person is believed to have used.
(2) A description of the person's physical appearance, including height, weight, type of build, color of hair and eyes and any other physical characteristics which may assist in the identification of the person.
(3) The person's date of birth.
(4) The date the person was added to the list.
(5) A recent photograph, if available.
(6) The last known address of record.
(7) Other identifying information available to the Board.
§ 511a.3. Criteria for exclusion.
(a) The exclusion list may include a person who meets one or more of the following criteria:
(1) A career or professional offender whose presence in a licensed facility would, in the opinion of the Board, be inimical to the interest of the Commonwealth or a slot machine licensee, or both.
(2) An associate of a career or professional offender whose presence in a licensed facility would be inimical to the interest of the Commonwealth or a slot machine licensee, or both.
(3) A person who has been convicted of a criminal offense under the laws of any state, or of the United States, which is punishable by more than 1 year in prison, or who has been convicted of any crime or offense involving moral turpitude, and whose presence in a licensed facility would be inimical to the interest of the Commonwealth or a slot machine licensee, or both.
(4) A person whose presence in a licensed facility would be inimical to the interest of the Commonwealth or licensed gaming therein, including:
(i) Cheats.
(ii) Persons whose gaming privileges have been suspended by the Board.
(iii) Persons whose permits, licenses or other approvals have been revoked.
(iv) Persons who pose a threat to the safety of the patrons or employees of a slot machine licensee.
(v) Persons with a history of conduct involving the disruption of the gaming operations of slot machine licensees.
(vi) Persons subject to an order of a court of competent jurisdiction in this Commonwealth excluding those persons from licensed facilities.
(vii) Persons with pending charges or indictments for a gaming or gambling crime or a crime related to the integrity of gaming operations in this Commonwealth or another jurisdiction.
(viii) Persons who have been convicted of a gaming or gambling crime or crime related to the integrity of gaming operations in this Commonwealth or another jurisdiction.
(ix) Persons who have performed an act or have a notorious or unsavory reputation that would adversely affect public confidence and trust in gaming, including being identified with criminal activities in published reports of various Federal and State legislative and executive bodies that have inquired into criminal or organized criminal activities.
(b) For purposes of subsection (a), a person's presence may be considered ''inimical to the interest of the Commonwealth or of licensed gaming therein'' if known attributes of the person's character and background meet one or more of the following criteria:
(1) Are incompatible with the maintenance of public confidence and trust in the credibility, integrity and stability of the operation of a licensed facility.
(2) May reasonably be expected to impair the public perception of, and confidence in, the strict regulatory process created by the act.
(3) Create or enhance a risk of the fact or appearance of unsuitable, unfair or illegal practices, methods or activities in the conduct of gaming or in the business or financial arrangements incidental thereto.
(c) A finding of inimicality may be based upon the following:
(1) The nature and notoriety of the character or background of the person.
(2) The history and nature of the involvement of the person with licensed gaming in this Commonwealth or another jurisdiction, or with a particular slot machine licensee or licensees or an affiliate, intermediary, subsidiary or holding company thereof.
(3) The nature and frequency of contacts or associations of the person with a slot machine licensee or licensees, or with employees or agents thereof.
(4) Other factors reasonably related to the maintenance of public confidence in the efficacy of the regulatory process and the integrity of gaming operations, the gaming industry and its employees.
(d) A person's race, color, creed, national origin or ancestry, or sex will not be a reason for placing the name of a person upon the exclusion list.
§ 511a.4. Duties of the Bureau.
(a) The Bureau will, on its own initiative, or upon referral by a law enforcement agency or a slot machine licensee investigate a person to determine whether the person meets the criteria for exclusion provided in section 1514 of the act (relating to regulation requiring exclusion of certain persons) and § 511a.3 (relating to criteria for exclusion).
(b) If, upon completion of an investigation, the Bureau determines that an individual should be placed on the exclusion list, the Bureau will file a petition for exclusion with the Board, identifying the candidate and setting forth a factual basis for the petition. The petition must include information demonstrating that the individual satisfies the criteria for exclusion under section 1514 or 1515 of the act (relating to repeat offenders excludable from licensed gaming facility) or this chapter.
(c) When the Bureau files a complaint alleging a violation of section 1514(e) of the act and § 511a.8(b)(2) (relating to duties of slot machine licensees) against a slot machine licensee, the Bureau will file simultaneously a petition to exclude the person alleged in the complaint to meet the criteria for exclusion under § 511a.3.
§ 511a.5. Placement on the exclusion list.
(a) A person may be placed on the exclusion list:
(1) Upon the filing of a petition for exclusion by the Bureau in accordance with the procedures under § 511a.4 (relating to duties of the Bureau).
(2) Upon receipt of an order from a court of competent jurisdiction within this Commonwealth, excluding the person from licensed facilities.
(b) The placement of a person on the exclusion list shall have the effect of requiring the exclusion or ejection of the excluded person from licensed facilities.
(c) An excluded person may not collect in any manner or in any proceeding any winnings or recover any losses arising as a result of any gaming activity for the entire period of time that the person is on the Board's exclusion list.
(d) Winnings incurred by an excluded person shall be remitted to the Board to support compulsive and problem gambling programs.
(e) For the purposes of this section, any winnings issued to, found on or about, or redeemed by an excluded person shall be presumed to constitute winnings subject to remittance to the Board.
§ 511a.6. Demand for hearing on the placement of a person on the exclusion list.
(a) Upon placement of a person on the exclusion list, the Clerk will serve notice of the placement to the person by personal service or certified mail at the last known address of the person. When the placement is a result of a petition for exclusion filed by the Bureau, a copy of the petition will be included with the notice.
(b) Upon service of the notice by the Clerk, an excluded person shall have 30 days to demand a hearing before the Board. Failure to demand a hearing within 30 days after service shall be deemed an admission of all matters and facts alleged in the Bureau's petition for exclusion.
(c) If a hearing is demanded by the excluded person, a hearing will be scheduled as provided in § 492a.6 (relating to hearings generally). At the hearing, the Bureau will have the affirmative obligation to demonstrate that the excluded person satisfies the criteria for exclusion in section 1514 or 1515 of the act (relating to regulation requiring exclusion of certain persons; and repeat offenders excludable from licensed gaming facility) or § 511a.3 (relating to criteria for exclusion). Unless the matter is heard directly by the Board, the presiding officer will prepare a recommendation as provided in § 494a.4 (relating to report or recommendation of the presiding officer) for consideration by the Board.
§ 511a.7. Board review.
After a hearing or consideration of a petition for exclusion filed by the Bureau when no hearing was requested, the Board will:
(1) Issue a final order affirming the placement of the person on the exclusion list.
(2) Issue a final order removing the person from the exclusion list.
(3) Refer the matter to the presiding officer for further hearing.
§ 511a.8. Duties of slot machine licensees.
(a) A slot machine licensee shall have the responsibility to distribute copies of the exclusion list to its employees. Additions, deletions or other updates to the list shall be distributed by a slot machine licensee to its employees within 2 business days of the slot machine licensee's receipt of the updates from the Board.
(b) A slot machine licensee shall exclude or eject the following persons from its licensed facility:
(1) An excluded person.
(2) A person known to the slot machine licensee to satisfy the criteria for exclusion in section 1514 of the act (relating to regulation requiring exclusion of certain persons) and § 511a.3 (relating to criteria for exclusion).
(c) If an excluded person enters, attempts to enter, or is in a licensed facility and is recognized by employees of the slot machine licensee, the slot machine licensee shall immediately notify the Bureau of the fact in accordance with the procedures set forth by the Board.
(d) It shall be the continuing duty of a slot machine licensee to inform the Bureau, in writing, of the names of persons the slot machine licensee believes are appropriate for placement on the exclusion list and the reason for placement on the exclusion list.
(e) A slot machine licensee or employees thereof will not be liable to any person for damages in a civil action, which is based on the following:
(1) Withholding winnings from an excluded person.
(2) Permitting an excluded person to gamble.
(3) Excluding an excluded person from the licensed gaming facility.
§ 511a.9. Petition to remove name from the exclusion list.
(a) An excluded person may file a petition with the Clerk to request a hearing for removal of his name from the exclusion list at any time after 5 years from the placement of his name on the exclusion list.
(b) The petition must be signed by the excluded person, contain supporting affidavits, and state the specific grounds believed by the petitioner to constitute good cause for removal from the exclusion list. Upon receipt of the petition, the Bureau may file an answer in accordance with § 493a.5 (relating to answers).
(c) The Board may decide the petition on the basis of the documents submitted by the excluded person and the Bureau. The Board may summarily deny the petition, may grant the petition or direct that a hearing be held in accordance with § 511a.6 (relating to demand for hearing on the placement of a person on the exclusion list). The Board will grant the petition or direct that a hearing be held only upon a finding that there is new evidence, which is material and necessary, or that circumstances have changed since the placement of the excluded person on the exclusion list, and that there would be a reasonable likelihood that the Board would alter its previous decision.
(d) An excluded person who is barred from requesting a hearing concerning his removal from the exclusion list by the 5-year period of exclusion in subsection (a) may petition the Board for early consideration at any time. However, an excluded person may not, within the 5-year period of exclusion, file more than one petition for early consideration.
(e) A petition for early consideration must contain the information required by subsection (b). Upon receipt of the petition, the Bureau may file an answer in accordance with § 493a.5 (relating to answers).
(f) The Board may decide the petition for early consideration on the basis of the documents submitted by the excluded person and the Bureau. The Board may summarily deny the petition or may grant the petition and direct that a hearing be held in accordance with § 511a.6.
(g) The Board will consider the following criteria when making its decision on a petition for early consideration:
(1) Whether there are extraordinary facts and circumstances warranting early consideration of the excluded person's request for removal from the exclusion list.
(2) If exclusion was ordered under § 511a.5(a)(2) (relating to placement on the exclusion list), whether the excluded person has completed the period of probation or otherwise satisfied the terms of the court-ordered exclusion.
CHAPTER 513a. UNDERAGE GAMING Sec.
513a.1. Definitions. 513a.2. Exclusion requirements. 513a.3. Responsibilities of licensees, permittees, registrants and certification holders. 513a.4. Signage requirements. 513a.5. Enforcement. § 513a.1. Definitions.
The following words and phrases, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Fully executed gaming transaction--An activity involving a slot machine or associated equipment which occurs on the gaming floor of a licensed facility and which results in an individual obtaining any money or thing of value from, or being owed any money or thing of value by, a slot machine licensee.
Winnings--Any money or thing of value received from, or owed by a slot machine licensee as a result of a fully executed gaming transaction.
§ 513a.2. Exclusion requirements.
(a) An individual under 18 years of age may not enter or be on the gaming floor of a licensed facility.
(b) An individual under 21 years of age, whether personally or through an agent, may not operate, use, play or place a wager on, a slot machine in a licensed facility.
(c) An individual under 21 years of age may not receive check cashing privileges, be rated as a player, or receive any complimentary service, item or discount as a result of, or in anticipation of, gaming activity.
(d) An individual under 21 years of age may not collect in any manner or in any proceeding, whether personally or through an agent, winnings or recover losses arising as a result of any gaming activity.
(e) Winnings incurred by an individual under 21 years of age shall be remitted to the Board to support compulsive and problem gambling programs.
(f) For the purposes of this section, winnings issued to, found on or about or redeemed by an individual under 21 years of age shall be presumed to constitute winnings and be subject to remittance to the Board.
§ 513a.3. Responsibilities of licensees, permittees, registrants and certification holders.
(a) A person holding a license, permit, certification or registration issued by the Board is prohibited from permitting or enabling an individual to engage in conduct that violates § 513a.2(a), (b), (c) or (d) (relating to exclusion requirements).
(b) Slot machine licensees shall establish procedures that are designed to prevent violations of this chapter and submit a copy of the procedures to the Board 30 days prior to initiation of gaming activities at the licensed facility. The slot machine licensee may not commence operations until the Board approves its procedures. Amendments to these procedures must be submitted to and approved by the Board prior to implementation.
(c) A slot machine licensee may be subject to Board imposed administrative sanctions if a person engages in conduct that violates § 513a.2(a), (b), (c) or (d) at its licensed facility. Under § 513a.2(e), winnings obtained by a slot machine licensee from or held on account of a person under 21 years of age shall be remitted to the Board and deposited into the Compulsive and Problem Gambling Treatment Fund.
(d) A person holding a license, permit, registration or certification issued by the Board who violates a provision of this chapter may be held jointly or severally liable for the violation.
§ 513a.4. Signage requirements.
A slot machine licensee shall post signs that include a statement that is similar to the following: ''It is unlawful for any person under 21 years of age to engage in any gaming activities. Individuals violating this prohibition will be removed and may be subject to arrest for criminal trespass under 18 Pa.C.S. § 3503 (relating to criminal trespass).'' The complete text of the sign shall be determined by the Board. The signs shall be prominently posted within 50 feet of each entrance and exit of the gaming floor.
§ 513a.5. Enforcement.
In a prosecution or other proceeding against a person for a violation of this chapter, it will not be a defense that the person believed an individual to be 21 years of age or older.
[Pa.B. Doc. No. 07-595. Filed for public inspection April 6, 2007, 9:00 a.m.]
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