[43 Pa.B. 660]
[Saturday, February 2, 2013]
[Continued from previous Web Page]
Subpart F. FEES
CHAPTER 471a. FILING FEES § 471a.1. Fees generally.
(a) A document for which a fee is required will be received, but will not be deemed filed, until the filing fee, bond, letter of credit or other cost has been paid.
(b) The fees collected by the Board will be deposited into the State Gaming Fund as established in section 1403 of the act (relating to establishment of State Gaming Fund and net slot machine revenue distribution).
(c) Fees shall be paid by money order or check made payable to the ''Commonwealth of Pennsylvania.'' Cash will not be accepted by the Board.
(d) To recover the initial cost of the investigation and processing of applications, each application for a license, permit, certification or registration must be accompanied by a nonrefundable fee.
(e) An applicant may be subject to additional fees based on the actual expenses incurred by the Board in conducting the background investigation.
Subpart H. PRACTICE AND PROCEDURE
CHAPTER 491a. GENERAL RULES OF PRACTICE § 491a.1. Generally.
This subpart governs practice and procedure before the Board and the OHA, and is intended to supplement 2 Pa.C.S. (relating to administrative law and procedure) and 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure).
§ 491a.2. Definitions.
The following words and terms, when used in this subpart, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Consent agreement—A voluntary agreement or proposal to act based on specific terms which are entered into by all parties to a proceeding to resolve a disputed matter.
* * * * * Exception—A formal objection to a report or recommendation of a presiding officer.
Intervener—A person who petitioned to intervene in a proceeding and who was admitted by the Board as a participant to the proceeding.
* * * * * Respondent—A person to whom an order or notice is issued by the Board or the Bureau instituting a proceeding or investigation.
* * * * * § 491a.3. Office of the Clerk.
(a) The Board's Office of the Clerk (Clerk) will have the following duties:
(1) Provide information as to practice and procedure before the Board, under this subpart.
(2) Receive and docket pleadings and other documents required by the Board to be filed with the Clerk.
(b) Filings and requests for practice and procedure information should be directed to the Clerk by any of the following means:
(1) United States Postal Service:
Office of the Clerk
Pennsylvania Gaming Control Board
P. O. Box 69060
Harrisburg, Pennsylvania 17106-9060(2) E-mail: boardclerk@pa.gov
(3) In person:
Hearings and Appeals Office
303 Walnut Street
2nd Floor, Strawberry Square
Harrisburg, Pennsylvania 17101(c) The Clerk will maintain a docket of proceedings. Each proceeding as initiated will be assigned a docket number. The docket will be available for inspection and copying by the public during the Board's office hours.
§ 491a.4. Filing generally.
(a) Pleadings and other documents filed with the Clerk must clearly designate the docket number, if one has been assigned, and a short title identifying the pleading or other document. The identity of the individual making the submission, including name, mailing address, status (for example, party or attorney for a party) and Board issued credential number, if applicable, must appear on the document.
(b) Pleadings, including documents filed under this chapter, must also comply with Chapter 495a (relating to documentary filings).
(c) If a pleading tendered for filing does not comply with this subpart, does not sufficiently set forth required material or is otherwise insufficient, the Clerk may decline to accept it for filing and may return it without filing, or the Clerk may accept it for filing and advise the person tendering it of the deficiency and require that the deficiency be corrected.
(d) The Clerk may require redundant, immaterial, obscene or otherwise inappropriate comments stricken from documents filed.
§ 491a.5. Service.
(a) Applicability. This section applies to service of an order, notice or other document from the OHA or the Office of Enforcement Counsel.
(b) Service of a document initiating a proceeding.
(1) Registered or certified mail. Service may be made by both first class and registered or certified mail, return receipt requested.
(2) Personal. Service may be made personally by delivering a copy:
(i) Directly to the person named in the notice, pleading or order.
(ii) At the residence of the person named in the notice, pleading or order, to an adult member of the family with whom the person named resides. If no adult member of the family is found, then to an adult person in charge of the residence.
(iii) At the residence of the person named in the notice, pleading or order, to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which the person named resides.
(iv) At any office or usual place of business of the person named in the notice, pleading or order, to his agent or to the person who for the time being is in charge thereof. For purposes of this subsection, the phrase ''any office or usual place of business of the person named in the notice, pleading or order'' will include the following locations:
(A) The licensed facility at which the person named is employed, licensed in connection therewith, or routinely performs his duties of employment.
(B) The office of the agent identified by the person named to receive service of process.
(c) Proof of service. Proof of service shall be evidenced by a return of service filed with the Clerk.
(d) Subsequent service. Service of any document made subsequent to the initial filing in a proceeding may be made by first class mail at the last known address of record of the person named in the notice, pleading or order.
(e) Change of address. It is the duty of a party to apprise the Clerk of changes to the party's current address.
(f) Supersession. Subsections (a)—(c) supersede 1 Pa. Code § 33.31 (relating to service by the agency).
§ 491a.7. Presiding officers.
* * * * * (f) Rulings of presiding officers may not be appealed to the Board while the matter is pending before the presiding officer.
(g) This section supersedes 1 Pa. Code §§ 35.185—35.190 (relating to presiding officers).
§ 491a.8. Hearings generally.
(a) Unless the Board hears the matter directly, all matters, except for hearings under § 441a.7 (relating to licensing hearings for slot machine licenses), will be assigned to the OHA. The Board may designate a member of the Board or other qualified person to serve as presiding officer in a particular matter.
(b) Hearings will be public unless a party invokes protection afforded to the party under section 1206 of the act (relating to Board minutes and records) or § 407a.3(a) (relating to confidential information).
(c) Hearings may provide for:
(1) Receipt of sworn testimony.
(2) Receipt of all relevant oral or documentary evidence.
(3) Opportunity for parties to be heard.
(4) A complete evidentiary record.
(5) Submission by the presiding officer of a report or report and recommendation to the Board.
(d) Unless required by this part or authorized by law, a party may not engage in an ex parte communication with the Board or presiding officer.
(e) Unless otherwise specified in the written notice, hearings will be conducted in Harrisburg, Pennsylvania, and may be conducted by video conference or by telephone as directed by the Board, Executive Director or presiding officer.
(f) Written notice of hearings will be provided to all parties, and served by the Clerk by first class mail.
(g) Motions shall be filed with the Clerk, served upon the parties and will be docketed and referred to the Board, Executive Director or presiding officer for disposition.
(h) Hearings will be scheduled by the OHA, except for hearings under § 441a.7 which will be scheduled as directed by the Board.
(i) A party may waive the right to a hearing before the Board, Executive Director or presiding officer by filing with the Clerk a Notice of Waiver of Hearing. The matter will then be forwarded to the appropriate bureau for action or to the Board for disposition. This section supersedes 1 Pa. Code § 35.101 (relating to waiver of hearing).
(j) Hearing transcripts will be available for public inspection. If the Board receives a request for a transcript of a hearing for which a transcript has not been prepared, the Board will prepare a transcript and make it available for inspection within 30 days.
(k) This section supplements 1 Pa. Code Chapter 35, Subchapter B (relating to hearings and conferences).
CHAPTER 493a. PLEADINGS § 493a.1. Generally.
(a) Pleadings permitted are as follows:
(1) Complaints.
(2) Petitions.
(3) Motions.
(4) Answers to pleadings.
(5) Exceptions.
(6) Appeals of staff decisions under 1 Pa. Code § 35.20 (relating to appeals from actions of the staff). Appeals under § 491a.7(f) (relating to presiding officers) are not included.
(7) Notices.
(b) Fees for copies and other administrative requests will be in accordance with a fee schedule published by the Board in the Pennsylvania Bulletin, available on the Board's web site and in the Office of the Clerk.
(c) Pleadings shall be filed with the Clerk and contain a docket number and Board issued credential number of the person subject to the pleading, if applicable. The Clerk will assign a docket number if one has not been assigned.
(d) This section supplements 1 Pa. Code §§ 35.1 and 35.2 and 35.9—35.11 (relating to applications; and formal complaints).
§ 493a.2. Complaints.
(a) A proceeding against a licensee, permittee, persons registered or certified by the Board or an employee of a licensee or persons registered or certified by the Board shall be initiated by written complaint filed by the complainant, which must include a statement, in ordinary and concise language, setting forth the matter complained of and the facts supporting the complaint.
(b) Complaints may be filed by the Office of Enforcement Counsel.
(c) Complaints will be served in accordance with § 491a.5 (relating to service).
(d) This section supplements 1 Pa. Code §§ 35.9—35.11 and 35.14 (relating to formal complaints; and orders to show cause).
§ 493a.4. Petitions generally.
(a) Petitions may be filed by the Office of Enforcement Counsel, parties, applicants, licensees, permittees, persons registered or certified by the Board, and other persons authorized by the Board.
(b) Petitions must be in writing, state clearly and concisely the grounds for the petition, the interest of the petitioner in the subject matter, the facts relied upon and the relief sought.
(c) Petitions must conform to § 491a.4 (relating to filing generally) and Chapters 495a and 497a (relating to documentary filings; and time), and be served on all persons directly affected.
(d) This section supplements 1 Pa. Code §§ 35.17 and 35.18 (relating to petitions generally; and petitions for issuance, amendment, waiver or deletion of regulations).
§ 493a.5. Answers to complaints, petitions, motions and other filings requiring a response.
(a) Answers to complaints, petitions, motions, appeals of staff decisions and other filings requiring a response shall be filed with the Clerk and served on all other parties within 30 days after the date of service of the complaint, petition, motion or other pleading, unless a different time is prescribed by the Board, presiding officer or elsewhere in the Board's regulations.
(b) Failure to file a timely answer to a complaint or petition will constitute an admission of all matters and facts contained in the filing and may result in the waiver of the right to a hearing.
(c) Answers may contain the following:
(1) Admissions of the matter complained of and the alleged facts, in whole or in part.
(2) New matter or explanation by way of defense.
(3) Legal objections.
(4) Affirmative defenses.
(5) A request for a hearing.
(d) Answers shall be in writing and shall specifically and in detail admit or deny each allegation in the pleading.
(e) This section supersedes 1 Pa. Code §§ 35.35—35.40 (relating to answers).
§ 493a.7. Amendments and withdrawal of pleadings.
(a) Amendments and withdrawal of pleadings shall be in accordance with 1 Pa. Code §§ 35.48—35.51 (relating to amendment and withdrawal of pleadings).
(b) Answers to amended pleadings, if required, shall be filed within 30 days after the date of service of the amended pleadings. This section supersedes 1 Pa. Code § 35.40 (relating to answers to amendments of pleadings).
§ 493a.8. Motions generally.
(a) A motion may be made at any time after the initiation of a proceeding for procedural relief including a request for an extension of time, a continuance of a hearing or other scheduled proceeding, or a request for a prehearing conference.
(b) Motions may be made in writing or orally on the record. A presiding officer may require that a motion made orally also be made in writing.
(c) Answers or objections to written motions shall be made within 30 days after the date of service of the motion unless otherwise directed by the Board or presiding officer.
(d) Written motions and answers or objections to written motions shall be served upon all parties in accordance with § 491a.5 (relating to service).
(e) Motions to the Board seeking interlocutory determinations on rulings of a presiding officer are not permitted.
(f) The presiding officer may rule upon any motion filed prior to the submission of a report or report and recommendation to the Board. When a ruling on a motion would constitute a final determination of the proceedings, the ruling on the motion shall be made part of the report or report and recommendation to the Board.
(g) This section supersedes 1 Pa. Code §§ 35.177—35.180 (relating to motions).
§ 493a.9. Preliminary motions.
* * * * * (f) This section supersedes 1 Pa. Code §§ 35.177—35.180 (relating to motions).
§ 493a.10. Motions for summary judgment and judgment on the pleadings.
(a) Motion for judgment on the pleadings. After the pleadings are closed, but within a time so that the hearing is not delayed, a party may move for judgment on the pleadings.
(b) Motion for summary judgment. After the pleadings are closed, but within a time so that the hearing is not delayed, a party may move for summary judgment based on the pleadings and depositions, answers to interrogatories, admissions and supporting affidavits.
(c) Answers to motions. An answer to a motion for summary judgment or a motion for judgment on the pleadings, including an opposing affidavit to a motion for summary judgment, may be filed with the Clerk and served on all other parties within 30 days of the date of service of the motion. An answer to a motion for summary judgment may be supplemented by pleadings, depositions and answers to interrogatories.
(d) Decisions on motions. If a motion is granted in whole or in part by a presiding officer, it will be in the form of a report or report and recommendation. The Board will make a final ruling on a motion for judgment on the pleadings or a motion for summary judgment.
(e) Supersession. This section supersedes 1 Pa. Code Chapter 35, Subchapter D (relating to motions).
§ 493a.10a. Motions to protect confidential information.
(a) A party or individual may designate information as confidential under § 407a.3 (relating to confidential information) in any papers filed with the Clerk by filing a Motion to Protect Confidential Information.
(b) A Motion to Protect Confidential Information must:
(1) Set forth the specific legal grounds to justify why the information should be deemed confidential and therefore protected.
(2) Include a redacted version of the entire filing which will be available for immediate release to the public.
(c) Upon the filing of the Motion to Protect Confidential Information, the Director of Hearings and Appeals will review the motion and accompanying filings and, upon determining that a substantial basis exists, shall issue an interim order to protect the information, whether in the motion or the accompanying filings, from disclosure until the Board considers the matter in accordance with 65 Pa.C.S. §§ 701—716 (relating to open meetings). At all times during the pendency of the motion, the information in the motion and the accompanying filings shall be treated as confidential except the redacted version filed in accordance with subsection (b)(2).
§ 493a.11. Discovery.
(a) The ability to obtain discovery in an administrative proceeding before the Board or presiding officer is committed to the discretion of the Board or presiding officer and will generally be limited to the information, documents and list of witnesses that any party will present during a hearing.
(b) The presiding officer may grant a request for discovery if the request will serve to facilitate an efficient and expeditious hearing process, will not unduly prejudice and burden the responding party and as may be required in the interests of justice.
(c) At the discretion of the presiding officer, discovery may be granted and limited to the following:
(1) Written interrogatories.
(2) Depositions.
(3) Production of documents or things.
(d) Each party to a proceeding shall be entitled to the name and address of any witness who may be called to testify on behalf of the opposing party and all documents or other material in the possession or control of the opposing party which the opposing party reasonably expects will be introduced into evidence. The opposing party shall be under a continuing duty to update its response to this request.
(e) The presiding officer may, upon request of a party, permit the testimony of a witness or the introduction of other evidence not disclosed pursuant to a request made under subsection (d), if following a proffer by the party seeking to present the evidence, the presiding officer determines that justice so requires.
(f) Confidential information furnished to or obtained by the Board or the Bureau from any source will not be discoverable under this subsection. If a request for discovery involves confidential information, a party may file a motion for a protective order and the presiding officer will make a determination as to what is deemed confidential.
(g) If a party fails to respond to a discovery request, which was granted by the presiding officer, the opposing party may file a motion to compel discovery with the Clerk. The presiding officer may grant or deny the motion in accordance with § 493a.8(e) (relating to motions generally).
(h) Depositions will be conducted in accordance with 1 Pa. Code §§ 35.145—35.152 (relating to depositions).
§ 493a.12. Intervention.
* * * * * (h) Notwithstanding the provisions of this section, petitions to intervene in licensing hearings for slot machine licenses shall be governed by § 441a.7(z) (relating to licensing hearings for slot machine licenses).
(i) This section supersedes 1 Pa. Code §§ 35.27—35.32 and 35.36 (relating to intervention; and answers to petitions to intervene).
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 conducted from Harrisburg, in person, by means of video conference or by telephone, unless a different site is designated by the Board, Executive Director or the presiding officer. The Board, Executive Director or the presiding officer, in its discretion with or without motion, 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 appearances).
(c) In 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. (Reserved).
§ 494a.4. Report or report and recommendation of the presiding officer.
(a) Following a hearing, a report or report and recommendation of the presiding officer may be required by the Board, except that recommendations will not be made in proceedings involving the issuance, approval, renewal, revocation, suspension or conditioning of a license.
(b) The presiding officer will, 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.
(c) The presiding officer's report or report and recommendation will include a statement of:
(1) Findings and conclusions, as well as the reasons or basis therefore, for all the material issues of fact, law or discretion presented on the record.
(2) The appropriate statutory provision, regulation, order, sanction, relief or denial thereof.
(3) Facts officially noticed under 1 Pa. Code § 35.173 (relating to official notice of facts), relied upon in the decision.
(d) The report or report and recommendation will be in writing, provided to all parties, and will be part of the public record, except for matters and materials designated as confidential. Service will be in accordance with § 491a.5(d) (relating to service).
(e) This section 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 Clerk, prior to the issuance of an order of the Board or a report or report and recommendation, a motion to reopen the record for the purpose of taking additional evidence. The motion must set forth clearly the facts claimed to constitute grounds requiring reopening of the record, including material changes of fact or law alleged to have occurred since the 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 Clerk, a motion to reopen the record for the purpose of taking additional evidence. The motion must set forth clearly the facts claimed to constitute grounds requiring reopening of the 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 motion. If no answers are filed, objections to the granting of the motion are waived.
(d) After the filing of the motion and answer, the Board or presiding officer will grant or deny the motion.
(e) Prior to filing a report or report and recommendation, the presiding officer, after notice to the parties, may reopen the 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 record.
(f) Prior to the issuance of a final order, the Board, after notice to the parties, may reopen the 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 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) A response to exceptions shall be filed within 15 days of the date of service of the exceptions.
(d) The record, including exceptions and responses thereto, will be forwarded to the Board for its consideration.
(e) This section 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 motion within 15 days after the final order of the Board.
(b) Filing a motion for rehearing or reconsideration does not toll or stay the 30-day appeal period.
(c) The 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 motion.
(d) Answers to 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 motion for rehearing or reconsideration within 30 days after it is filed, the 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 the issuance of a report or report and recommendation in accordance with a briefing schedule established by the OHA. Briefs shall be filed with the Clerk and served on the parties.
(b) Oral argument may be heard at the discretion of the Board or presiding officer.
§ 494a.10. (Reserved).
CHAPTER 495a. DOCUMENTARY FILINGS § 495a.1. Form of documentary filings generally.
(a) Pleadings or other documents must be divided into numbered paragraphs.
(b) Copies of contracts, agreements, permits or other writings referred to in pleadings or other documents may be attached as exhibits. Copies of writings or orders already of record with the Board in the proceeding need not be attached.
(c) Pleadings or other documents filed with the Clerk in a proceeding must clearly designate the docket number if one has been assigned, and a short title identifying the pleading or document. The identity of the individual making the submission, including name, mailing address, status (for example, party or attorney for a party) and Board issued credential number of the person subject to the pleading, if applicable, must appear on the document.
(d) Pleadings or other documents must include an address, fax number or e-mail address where papers may be served in connection with the proceedings.
(e) Notation of counsel's current Supreme Court identification number issued by the Court Administrator of Pennsylvania constitutes proof of the right to practice in this Commonwealth.
(f) Subsections (a)—(c) supersede 1 Pa. Code §§ 31.5 and 33.3 (relating to communications and filings generally; and incorporation by reference).
§ 495a.2. Form of documents.
(a) The Board may establish the paper, printing and binding requirements for pleadings filed with the Clerk. If the Board establishes paper, printing and binding requirements, the requirements will be printed in the Pennsylvania Bulletin and posted on the Board's web site.
(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 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 with the Clerk at boardclerk@pa.gov, a paper submission is not required.
(c) Subsection (a) supersedes 1 Pa. Code § 33.15 (relating to number of copies).
CHAPTER 497a. TIME § 497a.1. Date of filing.
(a) Whenever a pleading or other document is required or permitted to be filed under this part or by statute, it will be deemed to be filed on one of the following dates:
(1) On the date actually received in the Office of the Clerk.
(2) On the date deposited with an overnight express package delivery service as shown on the express delivery receipt attached to or included within the envelope containing the document.
(3) On the date deposited in the United States mail as shown by the United States Postal Service stamp on the envelope or on a United States Postal Service Form 3817 certificate of mailing. A mailing envelope stamped by an in-house postage meter does not constitute proof of the date of mailing.
(4) On the date that the pleading or other document is received by electronic transmission, sent to boardclerk@ pa.gov, in the Office of the Clerk.
(b) Failure to include a legible delivery receipt with the document may result in an untimely filing.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 31.11 (relating to timely filing required).
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 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 under § 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.
(3) An attorney authorized in accordance with subsection (b) to appear in connection with the proceeding.
(b) An attorney admitted to practice before the highest court of a jurisdiction other than this Commonwealth which does not permit attorneys licensed in this Commonwealth to appear before its courts and agencies may, at the discretion of the Board, be authorized to appear in connection with a particular proceeding. The Board will determine whether to grant the authorization upon the filing of a motion with the Clerk by an attorney admitted to practice law before the Pennsylvania Supreme Court and in good standing therewith, which contains the information required to satisfy the written notice provision of Pa.B.A.R. 301 (relating to admission pro hac vice), and provided that the attorney filing the motion shall be and remain the attorney of record in the proceeding and further provided that both the attorney of record and the attorney admitted under this subsection shall both sign all documents submitted or filed in connection with the proceeding.
(c) Subsection (a) supersedes 1 Pa. Code § 31.22 (relating to appearance by attorney).
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 by the last business day of July.
(b) The annual summary must 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.
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:
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 in 4 Pa.C.S. § 1518(a) (relating to prohibited acts; penalties).
Cheat—
(i) To defraud or steal from any player or slot machine licensee of the 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.
(iii) The term does not include altering a slot machine, table game, table game device or associated equipment for required maintenance and repair.
(iv) The term includes an act in any jurisdiction that would constitute an offense under 4 Pa.C.S. § 1518(a)(6), (7), (7.1) and (17).
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.
OCPG—The Office of Compulsive and Problem Gambling.
§ 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, posted on the Board's web site 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 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 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.
(8) The reason for placement on the excluded persons list.
(d) The following information will be made available to the public 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) A recent photograph, if available.
(4) Birth year.
§ 511a.3. Criteria for exclusion or ejection.
(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 of licensed gaming therein, or both.
(2) An individual with a known relationship or connection with a career or professional offender whose presence in a licensed facility would be inimical to the interest of the Commonwealth or of licensed gaming therein, 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 of licensed gaming therein, or both.
(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, registrations, certifications or other approvals have been revoked.
(iv) Persons who pose a threat to the safety of the patrons, employees or persons on the property of a slot machine licensee.
(v) Persons with a history of conduct involving the disruption of the gaming operations within a licensed facility.
(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 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 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, or both'' 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 and the Office of Enforcement Counsel.
(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 4 Pa.C.S. § 1514 (relating to regulation requiring exclusion or ejection of certain persons) and § 511a.3 (relating to criteria for exclusion or ejection).
(b) If, upon completion of an investigation, the Bureau determines that an individual should be placed on the exclusion list, the Office of Enforcement Counsel will file a petition for exclusion with the Clerk, 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 or ejection under section 1514 of the act or this chapter.
(c) In addition to filing the petition for exclusion, if exigent circumstances exist, the Office of Enforcement Counsel may file a request for a temporary emergency order in accordance with § 403a.7 (relating to temporary emergency orders) provided that:
(1) The procedures in § 403a.7(a)—(i) are applicable to requests for temporary emergency orders filed in conjunction with petitions for exclusion.
(2) If the request for a temporary emergency order is granted, the person named in the emergency order will be temporarily placed on the exclusion list until the Board acts upon the underlying petition.
(3) If the person named in the emergency order files a request for an informal hearing under § 403a.7(h), the request for an informal hearing does not toll or stay the time period to request a formal hearing in accordance with § 511a.6 (relating to demand for hearing on the placement of a person on the exclusion list).
§ 511a.5. Placement on the exclusion list.
(a) A person may be placed on the exclusion list upon any of the following:
(1) Entry of an order of the Board.
(2) Receipt of an order from a court of competent jurisdiction within this Commonwealth, excluding or ejecting the person from licensed facilities in this Commonwealth.
(3) Issuance of a temporary emergency order by the Executive Director in accordance with § 403a.7 (relating to temporary emergency orders).
(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 of the Board.
(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 the filing of a petition for exclusion, the Office of Enforcement Counsel will serve the petition upon the person by personal service or certified mail at the last known address of the person. The notice must inform the person of the right to a hearing under 4 Pa.C.S. § 1514(g) (relating to regulation requiring exclusion or ejection of certain persons) and include a copy of the petition.
(b) Upon service of the petition, the person subject to the petition shall have 30 days to demand a hearing before the Board or presiding officer. Failure to demand a hearing within 30 days after service will be deemed an admission of all matters and facts alleged in the Office of Enforcement Counsel's petition for exclusion and preclude the person from having an administrative hearing.
(c) If a formal hearing is demanded by the person named in the petition for exclusion, a hearing will be scheduled as provided in § 491a.8 (relating to hearings generally). At the hearing, the Office of Enforcement Counsel will have the affirmative obligation to demonstrate that the person named in the petition for exclusion satisfies the criteria for exclusion in 4 Pa.C.S. § 1514 or § 511a.3 (relating to criteria for exclusion or ejection). 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.
§ 511a.7. Board review.
After a hearing, or if a hearing was not requested and the facts in the petition are deemed admitted, the Board may:
(1) Issue an order placing the person's name on the exclusion list.
(2) Issue an order removing or denying the placement of the person's name on the exclusion list.
(3) Refer the matter to a presiding officer for further hearing.
§ 511a.8. Duties of slot machine licensees.
(a) Slot machine licensees shall establish procedures to prevent violations of this chapter and submit a copy of the procedures to the Director of OCPG 30 days prior to initiation of gaming activities at the licensed facility. A slot machine licensee will be notified in writing of any deficiencies in the plan and may submit revisions to the plan to the Director of OCPG. The slot machine licensee may not commence operations until the Director of OCPG approves its procedures. Amendments to these procedures shall be submitted to and approved by the Director of OCPG prior to implementation.
(b) A slot machine licensee shall distribute copies of the exclusion list to the appropriate 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.
(c) A slot machine licensee shall exclude or eject the following persons form 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 or ejection of certain persons) and § 511a.3 (relating to criteria for exclusion or ejection).
(d) 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:
(1) Immediately notify the casino compliance representatives at the licensed facility.
(2) Notify the Director of OCPG in writing within 24 hours.
(e) 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 or a person who has been excluded or ejected under subsection (c)(2) and the reason for placement on the exclusion list.
§ 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 Office of Enforcement Counsel may file an answer in accordance with § 493a.5 (relating to answers to complaints, petitions, motions and other filings requiring a response).
(c) 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.
(d) A petition for early consideration must contain the information required under subsection (b). Upon receipt of the petition, the Office of Enforcement Counsel may file an answer in accordance with § 493a.5.
(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. 13-178. Filed for public inspection February 1, 2013, 9:00 a.m.]
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