PENNSYLVANIA GAMING CONTROL BOARD [58 PA. CODE CHS. 403a, 491a, 493a, 494a, 495a, 497a, 499a AND 511a] Rules of Practice and Procedures [38 Pa.B. 5441]
[Saturday, October 4, 2008]The Pennsylvania Gaming Control Board (Board), under its general authority in 4 Pa.C.S. § 1202(b)(30) (relating to general and specific powers) and the specific authority in 4 Pa.C.S. § 1205 (relating to license or permit application hearing process; public input hearings), proposes to amend Chapters 403a, 491a, 493a, 494a, 495a, 497a, 499a and 511a to read as set forth in Annex A.
Purpose of the Proposed Rulemaking
The proposed rulemaking makes a number of revisions to the Board's practice and procedure regulations to: improve their clarity; conform to current practice; and simplify some of the existing requirements.
Explanation of Amendments to Chapters 403a, 491a, 493a, 494a, 495a, 497a, 499a and 511a
Throughout this proposed rulemaking, the phrase ''report or recommendation'' has been replaced with ''report or report and recommendation.'' This reflects what the presiding officer actually does.
The Board has also eliminated the definition of the term ''hearing officer'' and various provisions and references to the term. The existing provisions in Chapter 491a (relating to general rules of practice) include hearing officers and presiding officers, but in practice, the Board only uses presiding officers. Therefore, the provisions related to hearing officers are not needed.
In § 491a.3 (relating to Office of the Clerk), the address for the Office of the Clerk has been updated to reflect its current location.
In § 491a.7(c) (relating to presiding officers), ''issues of law'' has been added to ''a fact in issue'' as a matter that the presiding officer will not discuss with one party without giving notice and an opportunity to participate to the other parties.
In §§ 491a.8 and 493a.9 (relating to hearings generally; and prehearing and other conferences), language has been added to allow the use of video conferencing. This will make it easier for parties to participate in prehearing conferences and hearings.
Subsection 491a.8(j), which makes hearing transcripts available for public inspection, has been expanded to include language stating that if the Board receives a request for a hearing transcript that has not been prepared, the Board will prepare the transcript and make it available for public inspection within 30 days.
Section 493a.2 (relating to complaints) has been rewritten to improve its organization, eliminate duplicative provisions and move provisions related to answers to § 493.5 (relating to answers to complaints, petitions, motions and other filings requiring a response).
In § 493a.4 (relating to petitions generally), duplicative provisions have been deleted.
Section 493a.5 (relating to answers) has been amended to delete duplicative provisions and add provisions pertaining to answers that previously were in § 493a.2.
In §§ 493a.5, 493a.10, 493a.13 and 494a.6, deadlines have been shifted from date of service to date of filing. This will make it easier for the Board to determine if answers have been filed in a timely manner.
A new § 493a.10a (relating to motions to protect confidential information) has been added to Chapter 493a. What is considered to be confidential information under the act has been a controversial issue. Accordingly, the Board is proposing this new section to establish a process that can be used in proceedings to address this issue.
In § 494a.8 (relating to rehearing or reconsideration), a new subsection (b) has been added to clarify that filing a petition for rehearing or reconsideration does not toll the 30-day appeal period.
In § 495a.1 (relating to form of documentary filings generally), subsection (d) has been amended to allow parties to indicate a fax number or email address where papers may be served instead of a mailing address. This is being done to make it easier and faster to serve documents.
Section 495a.6 (relating to number of copies) has been revised to only require that the original copy of documents be filed with the Board. Because the Board is using an electronic internal filing system, multiple copies of documents are no longer needed.
In § 497a.1 (relating to date of filing), new provisions have been added that allow documents to be submitted via electronic transmission. However, documents will not be deemed to be officially filed until the Board receives any required filing fees.
In § 499a.4 (relating to notice of appearance or withdrawal), subsection (c) has been deleted. The Board has never required and can not foresee a need to require a practitioner to file a power of attorney authorizing the practitioner to represent their client.
In § 499a.6 (relating to contemptuous conduct), subsection (a) has been amended to include contemptuous conduct before a presiding officer, as well as the Board, as a basis for exclusion from a hearing.
Affected Parties
These amendments will affect entities and individuals who are involved in Board proceedings.
Fiscal Impact
Commonwealth
Because most of the revisions in this rulemaking reflect current Board practice or reflect relatively minor changes, there will be no significant costs or savings to the Board or other State agencies as a result of these revisions. The Board will experience some savings from being allowed to file and serve some documents electronically.
Political Subdivisions
This proposed rulemaking will have no fiscal impact on political subdivisions of this Commonwealth.
Private Sector
Entities and individuals who are involved in Board proceedings will experience some slight savings from being required to submit fewer copies of documents and being able to file and serve documents electronically. Individuals who participate in videoconferencing for hearings should also experience savings from reduced travel.
General Public
This proposed rulemaking will have no fiscal impact on the general public.
Paperwork Requirements
This proposed rulemaking reduces the number of copies of documents that must be filed with the Board and allows electronic service to replace mailing of documents to provide service.
Effective Date
The proposed rulemaking will become effective upon final-form publication in the Pennsylvania Bulletin.
Public Comments
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed rulemaking, within 30 days after the date of publication in the Pennsylvania Bulletin to Mickey Kane, Acting Secretary, Pennsylvania Gaming Control Board, P. O. Box 69060, Harrisburg, PA 17106-9060, Attention: Public Comment on Regulation #125-93.
Contact Person
The contact person for questions about this proposed rulemaking is Richard Sandusky, Director of Regulatory Review at (717) 214-8111.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 24, 2008, the Board submitted a copy of this proposed rulemaking and a copy of the Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Gaming Oversight Committee and the Senate Community, Economic and Recreational Development Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.
MARY DIGIACOMO COLINS,
ChairpersonFiscal Note: 125-93. No fiscal impact; (8) recommends adoption.
Annex A TITLE 58. RECREATION PART VII. GAMING CONTROL BOARD Subpart A. GENERAL PROVISIONS CHAPTER 403a. BOARD OPERATIONS AND ORGANIZATION § 403a.7. Temporary emergency orders.
* * * * * (k) Once a temporary emergency order has been issued under this section, unless it has been subsequently dissolved by the Executive Director, the temporary emergency order will be presented to the Board at its next meeting or within 10 business days, whichever is longer, at which time the Board may do one of the following:
* * * * * (2) Refer the matter to the Office of Hearings and Appeals under § 491a.8 (relating to hearings generally) and direct that a hearing be conducted by a [hearing] presiding officer and a report submitted to the Board.
(1) In all hearings relating to the disposition of a temporary emergency order, whether the hearing is conducted by the Board or by a [hearing] presiding officer, the following procedure will occur:
* * * * * (2) The Office of Enforcement Counsel will present evidence to the Board or the [hearing] presiding officer in support of the temporary emergency order.
* * * * * Subpart H. PRACTICE AND PROCEDURE CHAPTER 491a. GENERAL RULES OF PRACTICE § 491a.2. Definitions.
The following words and terms, when used in this subpart, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Exception--A formal objection to a report or report and recommendation of a presiding officer.
* * * * * [Hearing officer--An employee of the Board designated to conduct a hearing relating to a matter within the jurisdiction of the Board.]
* * * * * § 491a.3. Office of the Clerk.
* * * * * (b) Filings and requests for practice and procedure information should be directed to:
Office of the Clerk
Pennsylvania Gaming Control Board
[P. O. Box 69060
Harrisburg, PA 17106-9060]
One Penn Center
2601 North 3rd Street, Suite 502
Harrisburg, PA 17110* * * * * § 491a.6. [Hearing officers] (Reserved).
[(a) A hearing officer may be a presiding officer. Hearing officers shall be attorneys in good standing with the Supreme Court of Pennsylvania and shall be responsible for the timely disposition of assigned matters. Hearing officers are employed by the Board and may be discharged only for misconduct or good cause shown.
(b) Duties of the hearing officers may include:
(1) Conducting full and complete hearings, partial and bifurcated hearings.
(2) Taking testimony of witnesses.
(3) Presiding over or causing depositions to be taken.
(4) Submitting reports or recommendations to the Board.
(5) Other matters as the Board may direct.
(c) A hearing officer may withdraw when the hearing officer deems himself disqualified or a hearing officer may be withdrawn by the Board for good cause found after timely affidavits alleging personal bias or other disqualification have been filed and the matter has been heard by the Board or another presiding officer to whom the Board has delegated the matter for investigation and report.
(d) This section supersedes 1 Pa. Code § 35.186 (relating to disqualification of a presiding officer).]
§ 491a.7. Presiding officers.
* * * * * (b) The Board and presiding officers shall have the power and authority to:
* * * * * (9) Submit proposed reports or reports and recommendations in accordance with this subpart.
* * * * * (c) Except as authorized by law and by this subpart, a presiding officer may not, in a proceeding, consult with a [person or] party on a fact in issue or issue of law unless notice and opportunity for parties to participate has been given.
* * * * * § 491a.8. Hearings generally.
* * * * * (e) Hearings will be conducted in Harrisburg, Pennsylvania or by video conference, unless otherwise directed by the Board or presiding officer.
* * * * * (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.
* * * * * § 491a.9. Prehearing and other conferences.
* * * * * (b) When the Board or presiding officer directs that a prehearing conference be held, all parties shall appear at the time and place designated. Notice of the time and place of the conference will be given to all parties. At the discretion of the Board or presiding officer, the conferences may be conducted telephonically or by video conference.
* * * * * CHAPTER 493a. PLEADINGS * * * * * § 493a.2. Complaints.
(a) [The procedures for filing complaints shall be in accordance with 1 Pa. Code §§ 35.9--35.11 (relating to formal complaints) as supplemented by this chapter.] 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 setting forth in ordinary and concise language the matter complained of and the facts supporting the complaint.
* * * * * (c) [A proceeding against a licensee, permittee, persons registered or certified by the Board or 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 setting forth in ordinary and concise language the matter complained of and the facts supporting the complaint.]
(d)] Complaints will be served in accordance with § 491a.5 (relating to service by the Board).
[(e) Within 20 days of service of the complaint filed by the complainant, the respondent may file with the Clerk a notice of defense, in which the respondent may:
(1) Request a hearing.
(2) Admit the matter complained of and the alleged facts in whole or in part.
(3) Present new matter or explanation by way of defense.
(4) State any legal objection to the complaint.
(5) Present affirmative defenses.
(f) The respondent may be entitled to a hearing on the merits if the respondent files the required notice of defense within the time allowed by subsection (e). The notice of defense will be deemed a specific denial of all parts of the complaint not expressly admitted.
(g) Failure to timely file the required notice of defense or to appear at the hearing constitutes an admission of all matters and facts contained in the complaint and a waiver of the respondent's rights to a hearing. The Board may conduct a hearing despite a respondent's failure to timely file the required notice of defense or to appear at the hearing.
(h) Affirmative defenses shall be specifically stated, and unless objection is taken as provided in subsection (e)(4), objections to the form of the complaint shall be deemed waived.
(i) The Clerk will deliver or send by mail a notice of the hearing date to all parties at least 10 days prior to a hearing.
(j) Applicants, licensees, permittees, persons registered or certified and other persons authorized by the Board may request a hearing on any matter by filing a written petition for special relief in accordance with § 493a.4 (relating to petitions generally).
(k) The complainant has the burden to demonstrate, by a preponderance of the evidence, that the respondent has failed to comply with the act or this part.
(l)] (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.
* * * * * (c) [The procedure for petitions shall be in accordance with 1 Pa. Code §§ 35.17 and 35.18 (relating to petitions generally; and petitions for issuance, amendment, waiver or deletion of regulations).] 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) [Copies shall also be served in accordance with the Board's direction.
(e)] This section supplements 1 Pa. Code §§ 35.17 and 35.18.
§ 493a.5. Answers to complaints, petitions, motions and other filings requiring a response.
(a) Answers to complaints, petitions, motions and other filings requiring a response shall be filed with the Clerk and served on all other parties within 20 days after the date of [service] filing of [a] the complaint, petition, motion or other pleading, unless a different time is prescribed by the Board or presiding officer.
(b) [The procedures in 1 Pa. Code §§ 35.35--35.40 apply.] 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) This section supplements 1 Pa. Code §§ 35.35--35.40.
§ 493a.10. Motions for summary judgment and judgment on the pleadings.
* * * * * (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 within 10 days of the date of [service] filing of the motion. An answer to a motion for summary judgment may be supplemented by pleadings and depositions, answers to interrogatories or further affidavits and admissions.
(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.
* * * * * § 493a.10a. Motions to protect confidential information.
(a) A party or individual may seek to protect confidential information under § 407a.3 (relating to confidential information) in pleadings and other papers by filing a Motion to Protect Confidential Information.
(b) A Motion to Protect Confidential Information must:
(1) Set forth the specific reasons why the information should be deemed to be confidential information and, therefore, protected.
(2) Label as confidential documents or portions of documents in the filing that the party or individual is seeking to protect.
(c) Upon the filing of the Motion to Protect Confidential Information, the Director of Hearings and Appeals will review the motion and accompanying documents and may, upon determining that a substantial basis exists, issue an interim order to protect the documents from disclosure until the Board considers the matter in accordance with 65 Pa.C.S. §§ 701--716 (relating to open meetings).
§ 493a.12. Intervention.
* * * * * (f) A party may file an answer to a petition to intervene, and in default thereof, will be deemed to have waived any objection to the granting of the petition. Answers shall be filed within 10 days after the date of [service] filing of the petition, unless for cause the Board prescribes a different time.
* * * * * CHAPTER 494a. HEARING PROCEDURE § 494a.4. Report or report and recommendation of the presiding officer.
(a) A report or report and recommendation of the presiding officer may be required by the Board, in both oral and documentary hearings, 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 file with the Clerk and 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:
* * * * * (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 by the Board. Service will be in accordance with § 491a.5(d) (relating to service by the Board).
* * * * * § 494a.5. Review.
* * * * * (b) The Board will review the record of the hearing and the report or report and recommendation of the presiding officer. The Board may adopt some or all of the recommendations, conduct a full or partial de novo hearing, or remand all or part of the matter to a presiding officer for the taking of additional evidence or clarification of issues, or make an adjudication based on the record.
§ 494a.6. Reopening of record.
(a) After the conclusion of the hearing, a party in a proceeding may file with the presiding officer, prior to the issuance of a report or report and recommendation, a petition to reopen the proceeding for the purpose of taking additional evidence. The petition must set forth clearly the facts claimed to constitute grounds requiring reopening of the proceeding, including material changes of fact or law alleged to have occurred since the hearing 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, a petition to reopen the proceeding for the purpose of taking additional evidence. The petition must set forth clearly the facts claimed to constitute grounds requiring reopening of the proceeding, 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] filing of the petition. If no answers are filed, objections to the granting of the petition are waived.
* * * * * (e) Prior to filing a report or report and recommendation, the presiding officer, after notice to the parties, may reopen the [proceedings] proceeding 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] proceeding.
* * * * * § 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.
* * * * * (c) Failure to file exceptions within the time allowed shall constitute a waiver of all objections to the report or [recommendations] report and recommendation. Exceptions to any part of the report or [recommendations] report and recommendation 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 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.
* * * * * (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.
* * * * * § 494a.8. Rehearing or reconsideration.
* * * * * (b) Filing a petition for rehearing or reconsideration does not toll or stay the 30-day appeal period.
(c) The petition 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.
[(c)] (d) * * *
[(d)] (e) * * *
[(e)] (f) * * *
[(f)] (g) * * *
CHAPTER 495a. DOCUMENTARY FILINGS § 495a.1. Form of documentary filings generally.
* * * * * (d) Pleadings or other documents must include an address [and phone number], fax number or email address where papers may be served in connection with the proceedings. [Use of a fax number constitutes agreement to accept papers connected with the proceeding by fax.]
* * * * * § 495a.6. Number of copies.
(a) An original [and three copies] copy of pleadings or documents other than correspondence shall be furnished to the Board at the time of filing, except as may be otherwise ordered or requested by the Board or the presiding officer.
(b) [In the case of complaints or petitions, when more than one respondent is named, an additional copy of the complaint or petition shall be filed for each additional respondent.
(c) Subsections (a)--(b) supersede] 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:
* * * * * (4) On the date that the pleading or other document is received by electronic transmission in the Office of the Clerk.
* * * * * (c) [Except as otherwise permitted by the Board, a document transmitted by facsimile or electronically to the Board will not be accepted for filing within the meaning of this section.] Pleadings or other documents that require a filing fee will not be deemed filed until the Board receives the required fee.
* * * * * CHAPTER 499a. REPRESENTATION
BEFORE THE BOARD§ 499a.4. Notice of appearance or withdrawal.
* * * * * (c) [A person appearing or practicing before the Board in a representative capacity may be required to file a power of attorney with the Board showing his authority to act in that capacity.
(d)] * * *
[(e)] (d) * * *
* * * * * [(f)] (e) * * *
[(g)] (f) * * *
§ 499a.6. Contemptuous conduct.
(a) Contemptuous conduct at a hearing before the Board or a presiding officer will be grounds for exclusion from the hearing and for summary suspension without a hearing for the duration of the hearing.
* * * * * Subpart J. EXCLUSION OF PERSONS CHAPTER 511a. PERSONS REQUIRED TO BE EXCLUDED § 511a.6. Demand for hearing on the placement of a person on the exclusion list.
* * * * * (c) 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 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.
§ 511a.9. Petition to remove name from 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).
* * * * * [Pa.B. Doc. No. 08-1801. Filed for public inspection October 3, 2008, 9:00 a.m.]
