10 Del. Admin. Code § 203-13.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 203-13.0 - Enforcement and Hearings

13.1 Except for those situations when the Director may issue an emergency order under 29 Del.C. § 4830(i), the Director shall not deny, refuse to renew, or revoke any license for a key employee, a gaming employee, or a gaming room service employee unless he has first afforded the applicant or licensee an opportunity for a hearing on an appeal for reconsideration before the Lottery Commission.

13.2 If the Director determines that an applicant or licensee for a key employee, a gaming employee, or a gaming room service employee has not satisfied or continued to satisfy the license requirements for the granting or retention of an application or license, a written notice of an intent to deny or revoke the application or license shall be served upon the applicant or licensee. The written notice shall include the reasons for the intended denial or revocation and shall advise the applicant or licensee of the right to request a hearing on an appeal for reconsideration before the Lottery Commission.

13.3 For a key employee, a gaming employee, or a gaming room service employee, an applicant or licensee who has received a notice of intent to deny an application or an intent to revoke or suspend a license shall have an opportunity to request a hearing on an appeal for reconsideration before the Lottery Commission within 30 days of receipt of the written notice.

13.4 If an applicant or licensee for a key employee, a gaming employee, or a gaming room service employee license desires a hearing on an appeal for reconsideration, it shall provide the Lottery Commission and Director with a written statement within 30 days of receipt of the notice of the intent to deny the application or intent to revoke or suspend the license. The statement shall contain the following:

13.4.1 Clear and concise reasons for appealing the decision of the Director;

13.4.2 A signed and sworn verification by the applicant or licensee that the information provided is true and accurate; and

13.4.3 The signature of the applicant or licensee as witnessed by and signed by a notary public.

13.5 If an applicant or licensee for a key employee, a gaming employee, or a gaming room service employee license fails to timely file an appeal for reconsideration or withdraws the appeal for reconsideration, the Director shall determine that there is a waiver of the right to a hearing and an admission of all allegations of fact set forth in the Director's notice of intent to deny or revoke a license. The Director shall take final action, including denying or revoking the key employee or gaming employee license.

13.6 The appeal for reconsideration shall be heard by the Lottery Commission, provided, however, that the Chairperson of the Lottery Commission may, in his discretion, designate a member of the Lottery Commission, or other qualified person other than an employee of the Lottery Commission, to serve as a hearing officer in a particular matter. The hearing shall be conducted within 30 days of the receipt of the letter of appeal unless extenuating circumstances require a longer period.

13.7 At the hearing, the Director or his designee shall be responsible for presenting the matter in support of his determination to the Lottery Commission, including calling witnesses, introducing any relevant evidence and making any necessary arguments.

13.8 Notice of the hearing shall be given by the Lottery Commission to the parties at least 20 days before the date it is to be held.

13.9 If the parties agree to a settlement prior to the conclusion of the hearing before the Lottery Commission or the designated hearing officer, a written stipulation signed by all parties shall be submitted to the Lottery Commission. The settlement shall be scheduled for disposition by the Lottery Commission at a public meeting at which the Lottery Commission shall:

13.9.1 Approve the settlement;

13.9.2 Approve the settlement as modified by the Lottery Commission with the consent of the parties;

13.9.3 Reject the settlement and schedule the matter for further proceedings; or

13.9.4 Take such action as the Lottery Commission deems appropriate.

13.10 No settlement shall be approved by the Lottery Commission unless the settlement agreement is voluntary, consistent with the law and fully dispositive of all issues in controversy.

13.11 An executed stipulation of settlement shall, upon approval by the Lottery Commission, be considered a withdrawal of an appeal for reconsideration and evidence of informed consent to such final Lottery Commission action as described therein.

13.12 The applicant or licensee may appear individually or by legal counsel. In the absence of the applicant or licensee, written evidence of a legal counsel's authority shall be presented to the Lottery Commission in a form satisfactory to the Lottery Commission.

13.13 The applicant or licensee or his legal counsel may, with the approval of the Lottery Commission, waive the hearing and agree to submit the case for decision on the record, with or without a written brief. Such a waiver or agreement shall be in writing and placed in the record.

13.14 The applicant or licensee shall be given an opportunity for argument within the time limits fixed by the Lottery Commission or designated hearing officer following submission of the evidence. The Lottery Commission or hearing officer, upon request of the applicant or licensee, may accept briefs in lieu of argument. The briefs shall be filed within 10 days after the hearing date or within such other time as fixed by the Lottery Commission or hearing officer.

13.15 The Lottery Commission or hearing officer may admit any relevant evidence, except that it shall observe the rules of privilege recognized by law. The Lottery Commission or hearing officer may exclude any evidence which is irrelevant, unduly repetitious, or lacking a substantial probative effect.

13.16 A court reported record shall be made of all hearings, and all witnesses shall be sworn and subject to cross examination.

13.17 An applicant or licensee for a key employee, a gaming employee, or a gaming room service employee shall have the affirmative obligation to establish by clear and convincing evidence that the Director's determination was in error under the criteria for licensing established by 29 Del.C. § 4830.

13.18 An applicant or licensee for a key employee, a gaming employee, or a gaming room service employee shall have the affirmative obligation to establish by clear and convincing evidence rehabilitation in accordance with 29 Del.C. § 4830(d).

13.19 A written decision shall be rendered by the Lottery Commission, or by a designated hearing officer, setting forth findings of fact and conclusions of law within 45 days of the hearing unless extenuating circumstances require a longer period. An order shall be entered memorializing the decision.

13.20 A copy of the written decision and order of the Lottery Commission or hearing officer shall be submitted to the Director who shall serve the order and written decision upon the applicant or licensee and any attorney of record in person or by registered or certified mail.

13.21 In cases where the written decision is rendered by a designated hearing officer, a person aggrieved by the decision of the hearing officer may, within 30 days of the decision, file a notice of an intent to contest the findings of fact and conclusions of law of the hearing officer, which shall set forth the reasons for contesting the decision. A written response to the notice of intent to contest the findings of fact and conclusions of law may be filed within 20 days by the opposing party. Upon the filing of the notice of intent, the aggrieved person shall be afforded an opportunity to appear before the Lottery Commission within 30 days of said filing. The Lottery Commission may adopt, remand for further proceedings, modify or reverse the decision of the hearing officer, by written decision and order, within 45 days of the decision of the hearing officer. A copy of the written decision and order of the Lottery Commission shall be submitted to the Director who shall serve the order and written decision upon the applicant or licensee and any attorney of record in person or by registered or certified mail.

13.22 If a notice of intent is not filed in accordance with the timelines set forth herein, the matter shall be submitted to the Lottery Commission for final disposition. An order memorializing the decision of the Lottery Commission shall be entered within 45 days of the decision of the hearing officer. The Lottery Commission may adopt, remand for further proceedings, modify or reverse the decision of the hearing officer by written decision and order. A copy of the order of the Lottery Commission shall be submitted to the Director who shall serve the order upon the applicant or licensee and any attorney of record in person or by registered or certified mail.

13.23 A person aggrieved by a final decision or order of the Lottery Commission made after a hearing may obtain judicial review thereof by appeal to the Superior Court pursuant to §10142 of Title 29. The filing of an appeal shall not stay enforcement of the decision or order of the Lottery Commission unless a stay is obtained from the court upon application in accordance with the rules of court or from the Lottery Commission.

13.24 An applicant or licensee for a key employee or gaming employee license whose license has been revoked or whose application for a license has been denied shall be prohibited from reapplying for any license for a period of 5 years from the date of the order denying or revoking the license.

13.25 Any party may, within 10 days after the service of a final order of the Lottery Commission, file a motion for reconsideration which motion may seek to reopen the record. The motion shall be in writing and shall state the grounds upon which relief is sought. The Lottery Commission may grant such motion, under such terms and conditions as the Commission may deem appropriate, when the Lottery Commission finds just cause for reconsideration of the order based upon legal, policy or factual argument advanced by the movant or raised by the Lottery Commission on its own motion.

13.26 Any party may, within 1 year after the service of a final order of the Lottery Commission, file a motion to reopen the record based upon newly discovered evidence. The motion shall be supported by an affidavit of the moving party or counsel showing with particularity the materiality and necessity of the additional evidence and the reason why such evidence was not presented at the original hearing or on a motion for reconsideration. The Lottery Commission may grant such motion upon a showing that the newly discovered evidence is material and necessary, that sufficient reason existed for failure to present such evidence, and that the evidence is reasonably likely to change the final decision of the Lottery Commission. Upon reconsideration, the Lottery Commission may modify its decision and order as the additional evidence may warrant.

13.27 Any party may, within 1 year of the service of a final order of the Lottery Commission, file a motion for relief from such an order. The motion shall be in writing and shall state the grounds upon which relief is sought. The Lottery Commission may grant such motion and vacate or modify the order, reopen the record, or grant a hearing upon a showing of the following:

13.27.1 Mistake, inadvertence, surprise or excusable neglect;

13.27.2 Fraud, misrepresentation or other misconduct of an adverse party; or

13.27.3 Any other reason consistent with public policy and in the interests of justice.

13.27.4 No motion filed pursuant to this section, and no order granting such motion, shall suspend the operation of any order of the Lottery Commission unless otherwise specified by order of the Lottery Commission.

13.28 Whoever violates the Lottery Ch. 29 Del.C. Ch. 48, or any lottery rule or regulation duly promulgated thereunder, or any condition of a license issued pursuant to 29 Del.C. § 4805, or any Administrative Order issued pursuant to Lottery statutes or regulations shall be punishable as follows:

13.28.1 If the violation has been completed by a civil penalty imposed by Superior Court, which by 29 Del.C. § 4823 shall have jurisdiction of civil penalty actions brought pursuant to this section, of not less than $1,000 nor more than $10,000 for each completed violation. Each day of a continued violation shall be considered as a separate violation if, on each such day, the violator has knowledge of the facts constituting the violation and knows or should know that such facts constitute or may constitute a violation. Lack of knowledge regarding such facts or violation shall not be a defense to a continued violation with respect to the first day of its occurrence.

13.28.2 If the violation is continuing or if there is a substantial likelihood that it will reoccur, the Director may also seek a temporary restraining order, preliminary injunction, or permanent injunction in the Court of Chancery, which shall have jurisdiction of an action for such relief.

13.29 In his discretion, the Director may impose an administrative penalty of not more than $1,000 for each administrative penalty for each violation. Each day of continued violation shall be considered as a separate violation if the violator has knowledge of the facts constituting the violation and knows or should know that such facts constitute or may constitute a violation. Lack of knowledge regarding such facts or violations shall not be a defense to a continued violation with respect to the first day of its occurrence. Prior to the assessment of an administrative penalty, written notice of the Director's proposal to impose such penalty shall be given to the violator, and the violator shall have 30 days from receipt of such notice to file an appeal for reconsideration before the Lottery Commission in accordance with the procedures set forth above. A hearing, if requested, shall be held prior to the imposition of the penalty in accordance with the procedures set forth above. If no hearing is timely requested, the proposed penalty shall become final and shall be paid no later than 60 days from receipt of the notice of proposed penalty. Assessment of an administrative penalty shall take into account the circumstances, nature, and gravity of the violation, as well as any prior history of violations, the degree of culpability, the economic benefit to the violator resulting from the violation, any economic loss to the State, and such other matters as justice may require. In the event of nonpayment of an administrative penalty within 30 days after all legal appeal rights have been waived or otherwise exhausted, a civil action may be brought by the Director in Superior Court for the collection of the penalty, and for interest, from the date payment was due, attorneys' fees and other legal costs and expenses. The validity or amount of such administrative penalty shall not be subject to review in an action to collect the penalty. Any penalty imposed after a public hearing is held pursuant to this subsection shall be appealable to Superior Court, and such appeal shall be governed by §10142 of Title 29.

13.30 In his discretion, the Director may endeavor to obtain compliance with requirements of the Lottery chapter, 29 Del.C. Ch. 48, by written Administrative Order. Such order shall be provided to the responsible party, shall specify the complaint, and propose a time for correction of the violation. It may also provide an opportunity for a public hearing, at which the Director shall hear and consider any submission relevant to the violation, corrective action, or the deadline for correcting the violation.

13.31 The Director shall enforce Ch. 48, 29 Delaware Code and any rules, regulations, or Administrative Orders issued thereunder.

13.32 Any interest, costs or expenses collected by the lottery office under actions instituted by 29 Del.C. § 4823 or these regulations shall be appropriated to the lottery office to carry out the purposes of 29 Del.C. Ch. 48.

13.33 Appeals by Video Lottery Agents

13.33.1 If the Director denies a license to any applicant required by Delaware law to obtain a video lottery agent license, or suspends or revokes an agent's video lottery agent license for cause as set forth in 29 Del.C. § 4805(c) or based on a change in ownership as set forth in 29 Del.C. § 4805(b)(13) and (c), the applicant or licensee may appeal within 30 days of receiving the Director's written notice of denial, suspension, or revocation. Any appeal must be in writing and sent to the Delaware Secretary of Finance with a copy to the Director.

13.33.2 Upon receiving a timely appeal, the Secretary of Finance shall schedule a hearing date, time, and place within a reasonable amount of time after he receives the appeal and shall appoint a hearing officer who will hold the hearing and determine whether the license should be granted, denied, suspended, or revoked.

13.33.3 Any aggrieved applicant may appeal the hearing officer's decision to deny, suspend, or revoke a video lottery agent license by filing an appeal to the Delaware Superior Court under the provisions of the Administrative Procedures Act, 29 Del.C. Ch. 101.

10 Del. Admin. Code § 203-13.0

22 DE Reg. 500 (12/1/2018)
28 DE Reg. 386 (11/1/2024) (Final)