[41 Pa.B. 5373]
[Saturday, October 8, 2011]
[Continued from previous Web Page]
CHAPTER 494a. HEARING PROCEDURE § 494a.1. Generally.
(a) A hearing calendar of all matters set for hearing will be maintained by the Clerk and will be in order of assignment as far as practicable. All matters will be [heard in] conducted from Harrisburg, in person, by means of video conference or by telephone, unless a different site is designated by the Board or the presiding officer. The Board or the presiding officer, in its discretion with or without motion, for cause may at any time with due notice to the parties advance or postpone any proceeding on the hearing calendar.
(b) Hearings will be held before the Board or presiding officer, and all appearances, including staff counsel participating, will be entered upon the record, with a notation on whose behalf each appearance is made. A notation will be made in the record of the names of the members of the staff of the Board participating, including accountants, and other experts who are assisting in the investigation of the matter. This section supersedes 1 Pa. Code §§ 35.123 and 35.124 (relating to conduct of hearings; and order of procedure).
(c) In [oral and documentary] hearings, neither the Board nor the presiding officer will be bound by technical rules of evidence, and all relevant evidence of reasonably probative value may be received. Reasonable examination and cross-examination will be permitted at all oral hearings. If a party does not testify on his own behalf, the party may be called and examined as if under cross-examination.
(d) Subsection (a) supersedes 1 Pa. Code §§ 35.102 (relating to hearing calendar).
§ 494a.3. [Documentary hearings] (Reserved).
[(a) Documentary hearings will be held before the Board or a presiding officer.
(b) The parties will be notified at least 15 days prior to the date set for a hearing, and the evidentiary record will be closed 5 days prior to the date set for the hearing.
(c) Parties may introduce documents and other evidence, except that witnesses may not testify. Depositions and interrogatories may be taken at any time prior to the close of the evidentiary record, and may be introduced for consideration by the Board or presiding officer.]
§ 494a.4. Report or report and recommendation of the presiding officer.
* * * * * (b) The presiding officer will [file with the Clerk and], through the Clerk, certify to the Board a verbatim record of any oral hearing, all documents submitted for consideration, and a report or report and recommendation, when required, as soon as practicable after the conclusion of the hearing and expiration of the time for filing of briefs.
* * * * * (e) This section [supplements] supersedes 1 Pa. Code §§ 35.201—35.206 (relating to proposed reports generally).
§ 494a.6. Reopening of record.
(a) After the conclusion of the hearing, a party in a proceeding may file with the [presiding officer] Clerk, prior to the issuance of an order of the Board or a report or report and recommendation, a [petition] motion to reopen the [proceeding] record for the purpose of taking additional evidence. The [petition] motion must set forth clearly the facts claimed to constitute grounds requiring reopening of the [proceeding] record, including material changes of fact or law alleged to have occurred since the [hearing] record was concluded.
(b) After the issuance of a report or report and recommendation by a presiding officer and before the Board issues its final order, a party in a proceeding may file with the [Board] Clerk, a [petition] motion to reopen the [proceeding] record for the purpose of taking additional evidence. The [petition] motion must set forth clearly the facts claimed to constitute grounds requiring reopening of the [proceeding] record, including material changes of fact or law alleged to have occurred since the issuance of a report or report and recommendation.
(c) Answers may be filed within 10 days of service of the [petition] motion. If no answers are filed, objections to the granting of the [petition] motion are waived.
(d) After the filing of the [petition] motion and answer, the Board or presiding officer will grant or deny the [petition] motion.
(e) Prior to filing a report or report and recommendation, the presiding officer, after notice to the parties, may reopen the [proceedings] record for the receipt of further evidence on his own motion, if the presiding officer has reason to believe that the facts or law have changed as to require, or that the public interest requires, the reopening of the [proceedings] record.
(f) Prior to the issuance of a final order, the Board, after notice to the parties, may reopen the [proceeding] record for the receipt of further evidence, if the Board has reason to believe that the facts or law have changed as to require, or that the public interest requires, the reopening of the [proceeding] record.
(g) This section supersedes 1 Pa. Code §§ 35.231—35.233 (relating to reopening of record).
§ 494a.7. Exceptions.
(a) A party may file exceptions to the report or report and recommendation of the presiding officer within 15 days of the date of the report or report and recommendation, unless the time is extended upon good cause shown.
(b) Exceptions must be in writing, filed with the Clerk, and state with particularity the matter objected to, including the portion of the record where the basis of the objection may be found, and any supporting legal argument.
(c) Failure to file exceptions within the time allowed shall constitute a waiver of all objections to the report or report and recommendation. Exceptions to any part of the report or recommendations may not thereafter be raised before the Board in oral argument, if an oral argument is permitted, or in an application for rehearing or reconsideration, and shall be deemed to be waived. The Board or presiding officer may refuse to consider exceptions to a ruling admitting or excluding evidence unless there was an objection at the time the ruling was made or within an extension of time prescribed by the presiding officer.
(d) Response to exceptions shall be filed within 15 days of the date of service of the exceptions.
(e) Exceptions will be considered by the [Board] presiding officer and will be limited to the record established during the hearing. The Board or presiding officer may reopen the record and permit evidence not already established in the record if compelling reasons are shown for its submission, the party requesting its admission did not previously know of its existence and its existence could not have been discovered with the exercise of reasonable diligence.
[(e) The Board will conduct a documentary hearing on the exceptions within 30 days of receipt of the exceptions, unless exigent circumstances require a longer period of time. The Board may grant or deny the exceptions in whole or in part.
(f) The Board will issue its final order in consideration of the presiding officer's report or report and recommendation and any filed exceptions, and notify all parties by regular mail.]
(f) The presiding officer will issue a supplemental report and recommendation for the Board's consideration addressing the exceptions and any response within 20 days of receipt of exceptions unless exigent circumstances require a longer period of time.
(g) A party may not file exceptions to a supplemental report and recommendation.
(h) This section [supplements] supersedes 1 Pa. Code §§ 35.211—35.214 (relating to exceptions to proposed reports).
§ 494a.8. Rehearing or reconsideration.
(a) A party to a proceeding may file an application for rehearing or reconsideration by filing a [petition] motion within 15 days after the final order of the Board.
(b) Filing a [petition] motion for rehearing or reconsideration does not toll or stay the 30-day appeal period.
(c) The [petition] motion must state concisely the alleged errors in the adjudication or other order of the Board. If a final order or other order of the Board is sought to be vacated, reversed or modified by reason of matters that have arisen since the hearing and decision or order, or by reason of a consequence that would result from compliance therewith, the matters relied upon by the petitioner must be set forth in the [petition] motion.
(d) Answers to [petitions] motions for rehearing or reconsideration will not be entertained by the Board. If the Board grants the rehearing or reconsideration, an answer may be filed by a participant within 15 days after the issuance of the order granting rehearing or reconsideration. The response will be confined to the issues upon which rehearing or reconsideration has been granted.
(e) If the Board does not act upon the [petition] motion for rehearing or reconsideration within 30 days after it is filed, the [petition] motion will be deemed to have been denied.
(f) This section does not apply to proceedings resulting in any final order, determination or decision of the Board involving the approval, issuance, denial or conditioning of licensed entity applications which are subject to the appellate requirements of 4 Pa.C.S. § 1204 (relating to licensed gaming entity application appeals from board).
(g) This section supersedes 1 Pa. Code § 35.241 (relating to application for rehearing or reconsideration).
§ 494a.9. Briefs and oral argument.
(a) All parties shall be afforded an opportunity to submit briefs prior to a final order of the Board. Briefs shall be filed with the Clerk. [If a matter has previously been assigned to a presiding officer, a copy of the brief shall be submitted to the presiding officer.]
(b) Oral argument may be heard at the discretion of the Board or presiding officer.
§ 494a.10. [Reports of compliance] (Reserved).
[(a) When a person subject to the jurisdiction of the Board is required to do or perform an act by a Board order, permit or license provision, the person shall file, with the Clerk within 30 days following the date when the requirement becomes effective, a notice stating that the requirement has or has not been met or complied with, unless the Board specifies an alternate means to demonstrate compliance or proof of compliance.
(b) This section supersedes 1 Pa. Code § 35.251 (relating to reports of compliance).]
CHAPTER 495a. DOCUMENTARY FILINGS § 495a.1. Form of documentary filings generally.
* * * * * (c) Pleadings or other documents filed with the [Board] Clerk in a proceeding must clearly [show] designate the docket number [or similar identifying symbols, if any, and title of the proceeding before the Board] if one has been assigned, and a short title identifying the pleading or document. [They must also show, in the title of a particular pleading or other document filed, the name of the person on whose behalf the filing is made. If more than one person is involved, a single name only need be included in the title.] The identity of the individual making the submission, including name, mailingaddress, status (for example, party or attorney for a party) and Board-issued credential number, if applicable, must appear on the document.
* * * * * § 495a.2. Form of documents.
(a) The [method of receipt and transmission of information will be under a policy published by the] Board may establish the paper, printing and binding requirements for pleadings filed with the Clerk.
(b) Subsection (a) supersedes 1 Pa. Code § 33.2 (relating to form).
§ 495a.6. Number of copies.
(a) An original copy of pleadings or documents other than correspondence shall be furnished to the [Board] Clerk at the time of filing, except as may be otherwise ordered or requested by the Board or the presiding officer.
(b) Pleadings and documents filed electronically, in accordance with § 497a.1(a)(4) (relating to date of filing), will be considered the original for purposes of this section. If filed electronically, a paper submission will not be required.
(c) Subsection (a) supersedes 1 Pa. Code § 33.15 (relating to number of copies).
CHAPTER 499a. REPRESENTATION BEFORE THE BOARD § 499a.1. Appearance in person.
(a) An individual who is a party in a proceeding before the Board may represent himself before the Board.
(b) A party, other than an individual appearing on his own behalf, in an [adversary] adversarial proceeding before the Board shall be represented by an attorney authorized to appear before the Board in accordance with § 499a.2 (relating to appearance by attorney).
(c) This section supersedes 1 Pa. Code § 31.21 (relating to appearance in person).
§ 499a.2. Appearance by attorney.
(a) A party in a proceeding before the Board who elects to be represented by an attorney in the proceeding, or who is required by § 499a.1 (relating to appearance in person) to be represented by an attorney in the proceeding, shall be represented by:
(1) An attorney at law admitted to practice before the Pennsylvania Supreme Court.
(2) An attorney admitted to practice before the highest court of a jurisdiction other than this Commonwealth which permits attorneys licensed in this Commonwealth to practice before its courts and agencies without benefit of licensure in that state.
* * * * *
Subpart I. COMPULSIVE AND PROBLEM GAMBLING
CHAPTER 501a. COMPULSIVE AND PROBLEM GAMBLING REQUIREMENTS § 501a.4. Reports.
(a) A slot machine licensee shall submit to the Director of the OCPG an annual summary of its compulsive and problem gambling program [with its application for renewal of the slot machine license] by the last business day in July.
(b) The annual summary shall contain, at a minimum, detailed information regarding:
(1) Employee training, including:
(i) The dates of live new hire and annual reinforcement compulsive gambling training.
(ii) The individual or group who conducted the training.
(iii) The number of employees who completed the new hire compulsive gambling training.
(iv) The number of employees who completed the annual reinforcement compulsive gambling training.
(v) The dates of responsible alcohol training.
(vi) The individual or group who conducted the responsible alcohol training.
(vii) The number of employees who completed the responsible alcohol training.
(2) An estimated amount of printed materials provided to patrons regarding:
(i) Compulsive and problem gambling.
(ii) The self-exclusion program.
(iii) Responsible gaming.
(iv) Available treatment services.
(3) The amount spent on the Compulsive and Problem Gambling Plan for:
(i) Employee training.
(ii) Printed materials.
(iii) Outreach including community training and sponsorships.
(4) Additional information including:
(i) The number of underage individuals who were denied access to the gaming floor.
(ii) The number of self-excluded individuals who were discovered on the gaming floor at the licensed facility.
(iii) The number of signs within the licensed facility that contain the approved problem gambling statement and helpline number.
(iv) A summary of any community outreach conducted by the licensee.
(v) Other information as requested by the Director of the OCPG.
Subpart J. EXCLUSION OF PERSONS
CHAPTER 511a. PERSONS REQUIRED TO BE EXCLUDED § 511a.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Cheat—
(i) To defraud or steal from any player or slot machine licensee in this Commonwealth while operating or playing a slot machine or table game, including causing, aiding, abetting or conspiring with another person to do so.
(ii) To alter or causing, aiding, abetting or conspiring with another person, without authorization, to alter the elements of chance, method of selection or criteria which determine:
(A) The result of a slot machine game or table game.
(B) The amount or frequency of payment in a slot machine game or table game.
(C) The value of a wagering instrument.
(D) The value of a wagering credit.
[(ii)] (iii) The term does not include altering for required maintenance and repair.
[(iii)] (iv) The term includes an act in any jurisdiction that would constitute an offense under 4 Pa.C.S. § 1518(a)(6) and (7).
* * * * * § 511a.3. Criteria for exclusion.
(a) The exclusion list may include a person who meets one or more of the following criteria:
* * * * * (4) A person whose presence in a licensed facility would be inimical to the interest of the Commonwealth or of licensed gaming therein, or both, including:
(i) Cheats.
(ii) Persons whose gaming privileges have been suspended by the Board.
(iii) Persons whose Board 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 or persons in close proximity to the licensed facility.
* * * * * § 511a.5. Placement on the exclusion list.
(a) A person may be placed on the exclusion list for either of the following:
(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) when circumstances warrant expeditious placement.
(2) Upon receipt of an order from the Board or a court of competent jurisdiction within this Commonwealth, excluding the person from licensed facilities in this Commonwealth.
* * * * * § 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 filing of a petition for exclusion, the Bureau will serve the petition upon 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] petition, the person subject to the petition 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 the person is immediately placed on the exclusion list upon the filing of a petition in accordance with § 511a.5(a)(1) (relating to placement on the exclusion list), the person will also be served with a notice of the placement on the exclusion list and the ability to nevertheless request a hearing as provided in subsection (b).
(d) If a hearing is demanded by the excluded person, a hearing will be scheduled as provided in § 491a.8 (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 4 Pa.C.S. § 1514 (relating to regulation requiring exclusion or ejection of certain persons) or § 511a.3 (relating to criteria for exclusion). Unless the matter is heard directly by the Board, the presiding officer will prepare a report and recommendation as provided in § 494a.4 (relating to report or report and recommendation of the presiding officer) for consideration by the Board.
(e) If service pursuant to the Board's regulations is not made despite the Bureau's best efforts, a copy of the petition and notice required under subsection (c), if required, shall be provided to the Bureau of Casino Compliance to effectuate personal service should the person who is the subject of the petition appear at a licensed facility in this Commonwealth.
§ 511a.7. [Board review] (Reserved).
[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.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 to complaints, petitions, motions and other filings requiring a response).
(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)] (d) 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.
[(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)] (e) 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.
[Pa.B. Doc. No. 11-1729. Filed for public inspection October 7, 2011, 9:00 a.m.]
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