TITLE 15 GAMBLING
AND LIQUOR CONTROL
CHAPTER 1 GAMES
AND GAMING GENERAL PROVISIONS
PART 14 ENFORCEMENT
PROCEEDINGS UNDER THE GAMING CONTROL ACT
15.1.14.1 ISSUING AGENCY: New Mexico Gaming Control Board.
[12/31/98; 15.1.14.1 NMAC - Rn, 15
NMAC 1.14.1, 5/31/00]
15.1.14.2 SCOPE:
This rule applies to all persons subject to disciplinary or other
enforcement action under the Gaming Control Act.
[12/31/98; 15.1.14.2 NMAC - Rn, 15
NMAC 1.14.2, 5/31/00]
15.1.14.3 STATUTORY AUTHORITY: Section 60-2E-7(B)(3)
of the Gaming Control Act authorizes the board to develop, adopt and promulgate
all regulations necessary to implement and administer the provisions of the
Gaming Control Act. Section 60-2E-32(B)
authorizes the board to initiate hearings against licensees when the board
determines that it should limit, condition, suspend or revoke a license or
approval or impose a fine.
[12/31/98; 15.1.14.3 NMAC - Rn, 15
NMAC 1.14.3, 5/31/00]
15.1.14.4 DURATION:
Permanent.
[12/31/98; 15.1.14.4 NMAC - Rn, 15
NMAC 1.14.4, 5/31/00]
15.1.14.5 EFFECTIVE DATE: December 31, 1998, unless a later date is
cited at the end of a section.
[12/31/98; 15.1.14.5NMAC - Rn, 15
NMAC 1.14.5, 5/31/00; A, 2/14/02]
15.1.14.6 OBJECTIVE: The objective of this rule is to establish
guidelines and procedures for the conduct of enforcement proceedings initiated
by the board under the Gaming Control Act.
[12/31/98; 15.1.14.6 NMAC - Rn, 15
NMAC 1.14.6, 5/31/00]
15.1.14.7 DEFINITIONS:
Unless otherwise defined below, terms used in this rule have the same
meanings as set forth in the Gaming Control Act.
A. “Act”
means the Gaming Control Act.
B. “Party”
means each person named or admitted as a party to a proceeding before the board
or duly appointed hearing examiner.
C. “Person” means a legal entity or individual.
D. “Petitioner” means the board or
the board’s representative.
E. “Respondent”
means a licensee or person to which an approval has been granted and who is the
subject of a complaint issued by the board.
F. “State”
means the state of New Mexico.
[12/31/98; 15.1.14.7 NMAC - Rn, 15
NMAC 1.14.7 5/31/00; A, 5/14/04; A, 6/30/08]
15.1.14.8 PUBLIC HEARINGS; LOCATION; HEARING EXAMINER:
A. All
hearings held pursuant to Section 60-2E-32(B) of the act will be conducted by a
hearing examiner duly appointed by the board.
B. Except for telephonic hearings, the
location of the hearing shall be in Albuquerque except that the hearing
examiner may, upon motion of either party, grant a change of venue for good
cause shown.
C. All hearings held pursuant to
the act shall be open to the public.
D. The hearing shall be recorded on
audiotape or other means of sound reproduction, or by a certified court
reporter.
E. Any hearing provided for in this
rule may be held telephonically, in the interest of a speedy resolution.
[12/31/98; 15.1.14.8 NMAC - Rn & A,
15 NMAC 1.14.8, 5/31/00; A, 7/31/02; A, 5/14/04; A, 10/15/15]
15.1.14.9 SUMMONING OF LICENSEE:
A. The
board may summon any licensee, or its agents or employees, to appear to testify
before the board or its agents concerning the conduct of a licensee or any of
the licensee’s agents or employees. All
such testimony shall be given under oath and may cover any matter the board
determines is relevant to the discharge of its duties.
B. Any
person who is summoned to appear before the board or its agents has the right
to be represented by legal counsel. Any
testimony taken may be used by the board as evidence in any proceeding or
matter then before it or which may later come before it. Failure to appear and testify at the
designated time and place, unless excused by the board, constitutes grounds for
the revocation or suspension of any license held by the person summoned, his or
her principal, or employer.
[12/31/98; 15.1.14.9 NMAC - Rn, 15 NMAC
1.14.9, 5/31/00; A, 5/14/04]
15.1.14.10 INITIATION OF HEARING; CONTENTS OF
COMPLAINT; SERVICE, ANSWER:
A. If
after investigation the board determines that a license, registration, finding
of suitability or other prior approval by the board should be limited,
conditioned, suspended or revoked, or that a fine should be assessed, the board
shall initiate a hearing by issuing a complaint.
B. The complaint shall consist of a written statement that
describes the acts or omissions with which the respondent is charged and the
specific statutes or rules that the respondent is alleged to have violated or
other grounds for the complaint.
C. The
board shall serve the complaint, together with a summary of evidence in the
board’s possession and a transcript of testimony at any investigative hearing
conducted in the matter, upon the licensee.
Service and proof of service shall be made in any manner permitted by
the New Mexico rules of civil procedure for the district courts.
D. The
summary of evidence is confidential and shall not be disclosed to any person
other than the respondent until public hearing.
E. The
respondent shall file a written answer with the board within 30 days of service
of the complaint.
[12/31/98; 15.1.14.10 NMAC - Rn, 15
NMAC 1.14.10, 5/31/00; A, 5/14/04; A, 2/28/05]
15.1.14.11 RECORD OF PROCEEDING:
A. The
record of the proceeding will include:
(1) all pleadings, motions, and intermediate rulings;
(2) evidence received or considered;
(3) a statement of matters officially noticed;
(4) questions and offers of proof, objections and
rulings thereon;
(5) proposed findings and conclusions; and
(6) any action recommended by the hearing examiner.
B. A
party may request a transcription of the proceedings. The party requesting the transcript will bear
the cost of transcription.
[12/31/98; 15.1.14.11 NMAC - Rn, 15
NMAC 1.14.11, 5/31/00]
15.1.14.12 DISCOVERY; SUBPOENAS:
A. The board may, subject to the rules
of privilege and confidentiality recognized by law, require the furnishing of information,
the attendance of witnesses, and the production of books, records, papers or
other objects necessary and proper for the purposes before it, and may take the
deposition of witnesses, including parties.
B. The
board may issue subpoenas requiring the attendance and testimony of witnesses
and the production of any evidence, including books, records, correspondence or
documents, relating to any matter in question in the proceeding. Subpoenas to compel any person to appear at a
deposition or at a hearing on the merits of the matter shall be served no later
than 10 calendar days before the deposition or hearing unless good cause is
shown by the party requesting the subpoena.
C. The
subpoena shall state with reasonable specificity the nature of the evidence
required to be produced, the time and place of the hearing or deposition, the
nature of the inquiry or investigation, and the consequences of failure to obey
the subpoena. The subpoena shall be
signed and attested to by the board or its designee.
D. Witnesses
summoned shall be paid the same fees for attendance and travel as in civil
actions in the district court unless otherwise provided for by law.
E. Any party to the proceeding may request issuance of a
subpoena by the board in connection with the proceeding. The board shall issue the subpoena upon
written application to the board. The
subpoena will show on its face the name and address of the party at whose
request the subpoena was issued.
F. Any witness summoned may
petition the board to vacate or modify the subpoena served on the witness. The board shall give prompt notice to the
party, if any, who requested service of the subpoena. The board may grant the petition in whole or
in part if, after the investigation it deems appropriate, the board determines
that:
(1) the testimony or evidence to be produced does not reasonably
relate to any matter in question;
(2) the testimony or evidence to be produced is unreasonable or
oppressive;
(3) the subpoena was not issued a reasonable period of time in
advance of the time when evidence is requested; or
(4) any other reason justifies vacating or modifying the subpoena.
G. In
any enforcement action, the respondent and the board may conduct discovery in
accordance with the New Mexico rules of civil procedure for the district
courts, except that interrogatories shall be limited in number to 20 including
all discrete subparts, unless, upon motion and for good cause shown, the
hearing examiner grants a party leave to file additional interrogatories.
[12/31/98; 15.1.14.12 NMAC - Rn, 15
NMAC 1.14.12, 5/31/00; A, 5/14/04]
15.1.14.13 FAILURE
OR REFUSAL TO TESTIFY:
A. If
a respondent fails to testify in its own behalf or asserts a claim of privilege
with respect to any question presented to the respondent, the hearing examiner
may infer from such refusal that the testimony or answer would have been
adverse in the respondent’s case.
B. If
any affiliate, holding company, employee, or agent of a respondent fails to
respond to a subpoena or asserts a claim of privilege with respect to any
question presented, the hearing examiner, after considering all of the
circumstances, may infer that such testimony would have been adverse to the
respondent.
[12/31/98; 15.1.14.13 NMAC - Rn, 15
NMAC 1.14.13, 5/31/00; A, 6/30/08]
15.1.14.14 PROCEDURES;
EVIDENCE:
A. The
respondent may be represented by any person licensed to practice law in the
state. An individual respondent may
represent himself.
B. The
rules of evidence as applied in the courts do not apply in these
proceedings. Any relevant evidence may
be admitted, and such evidence shall be sufficient in itself to support a
finding if it is reliable, regardless of the existence of any statutory or
common law rule that might make admission of such evidence improper in a civil
action. Irrelevant, immaterial, or
unduly repetitious evidence may be excluded at a party’s request or on the
hearing examiner’s own initiative.
C. Documentary
evidence may be received in evidence in the form of true copies of the original.
D. Documentary
and other physical evidence may be authenticated or identified by any
reasonable means that shows that the matter in question is what its proponent
claims it to be.
E. The
experience, technical competence and specialized knowledge of the hearing
examiner, the board, or its staff may be used in the evaluation of
evidence. Evidence on which the board
may base its decision is limited to the following:
(1) all
evidence, including any records, investigation reports, and documents in the board’s
possession, of which it desires to avail itself as evidence in making a
decision, that is offered and made a part of the record of the proceeding;
(2) testimony and exhibits introduced by the parties; and
(3) official
notice of any fact of which judicial notice may be taken and other facts within
the board’s specialized knowledge; whenever the hearing examiner takes official
notice of any fact, the noticed fact and its source must be stated at the
earliest possible time before or during the hearing, and any party must be
given, on timely request, an opportunity to show the contrary.
F. The
record will include all briefs, proposed findings and exceptions and must show
the ruling on each finding, exception or conclusion presented.
G. A party to a hearing shall submit to the hearing examiner
and to all other parties to the hearing all documents to be introduced at the
hearing no later than five days from the scheduled hearing date to insure that
the hearing examiner and other parties receive the documents before the
hearing.
[12/31/98; 15.1.14.14 NMAC - Rn
& A, 15 NMAC 1.14.14, 5/31/00; A, 5/14/04]
15.1.14.15 CONDUCT
OF ENFORCEMENT HEARING:
A. In
addition to the procedures prescribed by the act, the following procedures
shall apply, when appropriate:
(1) the board will present its opening statement on the
merits. The respondent then will be
permitted to make an opening statement on defense;
(2) the board will present its case in chief in support of the
complaint;
(3) upon conclusion of the board’s case in chief, the respondent
will present its case in defense;
(4) upon conclusion of the respondent’s case, the board may present
rebuttal evidence;
(5) the board will present its closing argument, the respondent
will present answering argument, and the board may present rebuttal
argument. Thereafter, the matter will be
submitted for recommendation by the hearing examiner.
B. The hearing examiner may ask questions of witnesses and may
request or allow additional evidence at any time as determined appropriate by
the hearing examiner.
[12/31/98; 15.1.14.15 NMAC - Rn, 15
NMAC 1.14.15, 5/31/00; A, 5/14/04]
15.1.14.16 CONTINUANCES: The hearing examiner shall not grant a
continuance except for good cause shown.
A motion to continue a hearing shall be made at least 10 calendar days
before the hearing date.
[12/31/98; 15.1.14.16 NMAC - Rn, 15
NMAC 1.14.16, 5/31/00; A, 5/14/04]
15.1.14.17 DEFAULT; PROCEDURE FOR RECOMMENDATION OF DEFAULT:
A. Failure
of the respondent either to file an answer to the complaint or to appear at the
hearing on the merits personally or by telephone, without having obtained a
continuance, shall constitute an admission on all matters and facts contained
in the complaint filed with respect to the respondent and shall be deemed a
waiver of the right to an evidentiary hearing on the matter.
B. If
the respondent fails to file an answer to the complaint, the petitioner shall
file a motion requesting the hearing examiner to recommend to the board that
default judgment be entered against respondent.
(1) The
respondent shall file a response to the motion and shall request a hearing on
the motion to recommend default judgment within 10 calendar days of the date
the motion is served. Failure of the
respondent to file a response and to request a hearing shall constitute consent
to the granting of the motion.
(2) If
the respondent timely files a response to the motion, the hearing examiner
shall hear the matter. The hearing
examiner may deny the motion and allow the respondent additional time to answer
the complaint if an accident, illness or other good cause prevented the
respondent from timely answering the complaint.
C. If
a party fails to appear at a hearing on the merits personally or by telephone
the hearing examiner may hear the evidence of witnesses who appear, and make a
recommendation to the board based upon such evidence. Upon recommendation of the hearing examiner
the board may proceed to consider the matter and dispose of it on the basis of
the record before it.
D. If
an accident, illness, or other good cause prevents the respondent from
requesting a continuance or appearing at the hearing, the respondent may,
within 15 days of the date of the hearing, apply to the board to reopen the
proceeding. Upon finding sufficient
cause, the board shall immediately fix a time and place for the hearing and
give the respondent notice as required under this rule.
[12/31/98; 15.1.14.17 NMAC - Rn
& A, 15 NMAC 1.14.17, 5/31/00; A, 5/14/04]
15.1.14.18 RECOMMENDED ACTION; FINAL DECISION:
A. At the request of the hearing
examiner or upon motion by either party granted by the hearing examiner, and
before the hearing examiner recommends action by the board, the parties may
submit briefs including findings of fact and conclusions of law for
consideration by the hearing examiner.
The hearing examiner has the discretion to request briefs or grant a
motion to submit briefs on any point of law deemed appropriate by the hearing
examiner. Briefs submitted shall include
supporting reasons for any findings or legal conclusions and citations to the
record and to relevant law. Should the
hearing examiner request briefs or grant a party’s motion to submit briefs, the
hearing shall be continued until the hearing examiner has given the briefs
sufficient consideration and brings the hearing to a close. The hearing, however, shall be completed no
later than forty five (45) days from the date of continuance.
B. The hearing examiner shall prepare a
written decision containing his or her recommendation of action to be taken by
the board. The hearing examiner’s recommendation may include any combination,
of the following:
(1) revocation
of the license or approval;
(2) suspension
of the license or approval;
(3) limitation
or conditioning of the license or approval; and
(4) imposition
of a fine not to exceed twenty five thousand dollars ($25,000) for the first
violation and fifty thousand dollars ($50,000) for each subsequent violation.
C. Notice
of the hearing examiner’s recommended action shall be served on the parties
within thirty (30) days of the conclusion of the hearing on the matter. Service shall be made by registered or
certified mail.
D. The
board shall accept, reject or modify the hearing examiner’s recommendation by
majority vote. The final decision or
order shall be issued in writing and shall include a statement of findings and
conclusions and the reasons therefore, on all material issues of fact, law or
discretion involved, together with the specific action taken, including
limiting, conditioning, suspending, or revoking any license or imposing a fine,
or any combination thereof. The board
shall not impose any sanction or order except within the board’s jurisdiction
or as authorized by law.
E. The
board may dismiss an administrative complaint without recommendation of the
hearing examiner upon its own motion.
F. The final decision or order shall be
public and shall become a part of the record.
[12/31/98; 15.1.14.18 NMAC - Rn, 15 NMAC
1.14.18, 5/31/00; A, 7/31/02; A, 5/14/04; A, 10/15/15]
15.1.14.19 EX PARTE COMMUNICATIONS:
A. No
party or representative of any other person shall communicate off the record
with the hearing examiner or any board member except upon notice and
opportunity to all parties to participate.
B. Neither the hearing examiner nor any member of the board
shall communicate off the record with any party or representative of any party
in connection with any issue of fact or law related to a proceeding under this
rule except upon notice and opportunity to all parties to communicate.
C. Notwithstanding the provisions of
Subsections A and B of 15.1.14.19 NMAC, a party may submit information to the
board in confidence when such information is required by law or the rules of
the board or required by a subpoena issued by the board to be made or transmitted
to the board. However, information ruled
by the board as nonconfidential or information described as nonconfidential in
board rule Subsection B of 15.1.2.8 NMAC is subject to the prohibition on ex
parte communications.
D. Notwithstanding
the provisions of Subsections A and B of 15.1.14.19 NMAC, ex parte
communications are permitted, where circumstances require, for procedural or
administrative purposes or emergencies that do not deal with substantive
matters or issues on the merits if the board member or hearing examiner
reasonably believes that no party will gain an advantage as a result of the ex
parte communication.
E. Upon
receipt of a communication knowingly made or caused to be made by a party to a
board member or hearing examiner in violation of this section, the board member
or hearing officer may, to the extent consistent with the interests of justice
and the policy of the underlying statutes, require the party to show cause why
its claim or interest in the proceeding should not be dismissed, denied,
disregarded or otherwise adversely affected on account of the violation of this
section.
F. This
section does not preclude:
(1) the
hearing examiner or any member of the board from consulting with board counsel
concerning any matter before the board, except any matter relating to a
proceeding in which board counsel is representing the state; or
(2) any party from conferring with the hearing examiner or board
counsel concerning procedural matters that do not involve issues of fact or law
related to the proceeding.
[12/31/98; 15.1.14.19 NMAC - Rn, 15
NMAC 1.14.19, 5/31/00; A, 2/14/02; A, 5/14/04]
15.1.14.20 TELEPHONIC
HEARINGS:
A. Any
party requesting a telephonic hearing shall do so within 10 working days of the
date of the notice. When the parties
agree to conduct the hearing by telephone, notice of the telephonic hearing
shall be made to all parties and shall include all necessary telephone numbers.
B. Any
party that has agreed to a telephonic hearing but subsequently requests an
in-person hearing shall do so in writing to the hearing examiner no later than
10 days before the scheduled date of the hearing. The request shall specifically state the
reasons the requesting party believes an in-person hearing is necessary,
including, at a minimum, the issues in question, the expected conflicting
testimony, and how an in-person hearing would significantly advance the hearing
examiner’s fact-finding ability. The
hearing examiner’s decision to grant or deny the hearing shall be issued in
writing and shall include the specific reasons for granting or denying the
request. If the hearing examiner grants
the request, the hearing shall be rescheduled to a time convenient for all
parties. If the hearing examiner denies
the request, the telephonic hearing shall proceed as scheduled.
C. The
location or locations of the parties during the hearing shall have a speaker
telephone and facsimile machine available so that all may hear the proceedings
and documents may be transmitted between witnesses and the hearing examiner.
D. The
petitioner shall initiate the telephone call.
The respondent is responsible for ensuring that the telephone number to
the respondent’s location for the telephonic hearing is accurate and that the
respondent is available at that telephone number at the time the hearing is to
commence. Failure to provide the correct
telephone number or failure to be available at the commencement of the hearing
shall be treated as a failure to appear and shall subject the respondent to a
default judgment.
E. The in-person presence of some
parties or witnesses at the hearing does not prevent the participation of other
parties or witnesses by telephone with prior approval of the hearing examiner.
[12/31/98; 15.1.14.20 NMAC - Rn, 15
NMAC 1.14.20, 5/31/00; A, 5/14/04]
HISTORY OF 15.1.14 NMAC:
Pre NMAC History:
None.
History of Repealed Material:
[Reserved]
Other History:
15 NMAC 1.14, Enforcement
Proceedings Under the Gaming Control Act, effective
12/31/98.
15 NMAC 1.14, Enforcement
Proceedings Under the Gaming Control Act (filed 12/14/98) reformatted,
renumbered, amended and replaced by 15.1.14 NMAC, Enforcement Proceedings Under
the Gaming Control Act, effective, 5/31/2000.