TITLE 15 GAMBLING AND LIQUOR CONTROL
CHAPTER 4 BINGO AND RAFFLES
PART 12 ENFORCEMENT PROCEEDINGS
15.4.12.1 ISSUING AGENCY: New Mexico Gaming Control Board.
[15.4.12.1 NMAC - Rp, 15.4.12.1 NMAC, 2/23/2021]
15.4.12.2 SCOPE: This rule applies to all persons subject
to revocation or suspension of a license or permit, disciplinary or other
enforcement action under the New Mexico Bingo and Raffle Act.
[15.4.12.1 NMAC - Rp, 15.4.12.2 NMAC, 2/23/2021]
15.4.12.3 STATUTORY AUTHORITY: Authority for this rule derives from the
New Mexico Bingo and Raffle Act Section 60-2F-3 NMSA 1978. Subsection F of
60-2F-6 NMSA 1978 authorizes the board to appoint a hearing officer.
[15.4.12.3 NMAC - Rp, 15.4.12.3 NMAC, 2/23/2021]
15.4.12.4 DURATION: Permanent.
[15.4.12.4 NMAC - Rp, 15.4.12.4 NMAC, 2/23/2021]
15.4.12.5 EFFECTIVE DATE: February
23, 2021, unless a later date is cited at the end of a section.
[15.4.12.5 NMAC - Rp, 15.4.12.5 NMAC, 2/23/2021]
15.4.12.6 OBJECTIVE: This rule
establishes the guidelines and procedures for the conduct of enforcement
proceedings initiated by the board under the New Mexico Bingo and Raffle Act.
[15.4.12.6 NMAC - Rp, 15.4.12.6 NMAC, 2/23/2021]
15.4.12.7 DEFINITIONS: For purposes
of this Part 15.4.12 NMAC, “party” means each person named or admitted as a
party to a proceeding before the board or its duly appointed hearing examiner.
[15.4.12.7 NMAC - Rp, 15.4.12.7 NMAC, 2/23/2021]
15.4.12.8 PUBLIC HEARINGS; LOCATION;
HEARING EXAMINER:
A. All hearings held pursuant to Section 60-2F-23 NMSA
1978 will be conducted by a hearing examiner duly appointed by the board.
B. Except for telephonic hearings, the location of the
hearing shall be at the office of the board unless either party makes a written
request to have the hearing conducted in the place or area affected.
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.
[15.4.12.8 NMAC - Rp, 15.4.12.8 NMAC, 2/23/2021]
15.4.12.9 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, their principal, or employer.
[15.4.12.9 NMAC - Rp, 15.4.12.9 NMAC, 2/23/2021]
15.4.12.10 INITIATION OF HEARING; CONTENTS OF
COMPLAINT; SERVICE, ANSWER:
A. If after investigation the board determines that a
license, permit 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 respondent shall file a written answer with the
board within 30 days of service of the complaint.
[15.4.12.10 NMAC - Rp, 15.4.12.10 NMAC, 2/23/2021]
15.4.12.11 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.
[15.4.12.11 NMAC - Rp, 15.4.12.11 NMAC, 2/23/2021]
15.4.12.12 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 state 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.
[15.4.12.12 NMAC - Rp, 15.4.12.12 NMAC, 2/23/2021]
15.4.12.13 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.
[15.4.12.13 NMAC - Rp, 15.4.12.13 NMAC, 2/23/2021]
15.4.12.14 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 shall be stated at the earliest possible time before or
during the hearing, and any party shall be given, on timely request, an
opportunity to show the contrary.
F. The record will include all briefs, proposed
findings and exceptions and shall 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.
[15.4.12.14 NMAC - Rp, 15.4.12.14 NMAC, 2/23/2021]
15.4.12.15 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; and
(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.
[15.4.12.15 NMAC - Rp, 15.4.12.15 NMAC, 2/23/2021]
15.4.12.16 CONTINUANCES: The hearing examiner shall not grant a
continuance except for good cause shown.
[15.4.12.16 NMAC - Rp, 15.4.12.16 NMAC, 2/23/2021]
15.4.12.17 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; and
(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.
[15.4.12.17 NMAC - Rp, 15.4.12.17 NMAC, 2/23/2021]
15.4.12.18 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 45 days from the date of continuance.
B. The hearing examiner shall prepare a written
decision containing their recommendation of action to be taken by the board.
The hearing examiner’s recommendation may include any,
or 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 $1,000 for each violation.
C. Notice of the hearing examiner’s recommended action
shall be served on the parties within 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.
E. 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.
F. The board may dismiss an enforcement action with or
without prejudice without recommendation of the hearing officer.
[15.4.12.18 NMAC - Rp, 15.4.12.18 NMAC, 2/23/2021]
15.4.12.19 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 15.4.12.19 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.
D. 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.
E. 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;
(2) any party from
conferring with the hearing examiner or board counsel concerning procedural; or
(3) matters that do not
involve issues of fact or law related to the proceeding.
[15.4.12.19 NMAC - Rp, 15.4.12.19 NMAC, 2/23/2021]
15.4.12.20 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 telephone and the means by which documents may be
transmitted between the parties and hearing examiner.
D. The hearing officer shall initiate the telephone
call. The petitioner and respondent are
responsible for ensuring that the telephone number to their locations for the
telephonic hearing is accurate and that they are available at that telephone
number at the time the hearing is to commence.
The board’s staff shall conduct the hearing on a speaker phone and shall
record the hearing, or in the alternative, shall provide a court reporter to
transcribe the hearing. 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.
[15.4.12.20 NMAC - Rp, 15.4.12.20 NMAC, 2/23/2021]
15.4.12.21 APPEALS TO THE DISTRICT COURT. Pursuant to Subsection A of Section 60-2F-24 NMSA 1978, any person aggrieved by a
final decision of the board issued pursuant to Section 15.4.12.18 NMAC may
appeal to the district court pursuant to the provisions of Section 39-3-1.1
NMSA 1978.
[15.4.12.21 NMAC - Rp, 15.4.12.21 NMAC, 2/23/2021]
HISTORY
OF 15.4.12 NMAC: [RESERVED]
History of Repealed Material:
15.4.12 NMAC, Bingo and Raffles - Enforcement
Proceedings, filed 3/27/2013 - Repealed 2/23/2021.
Other History:
15.4.12 NMAC, Bingo and Raffles - Enforcement
Proceedings, filed 3/27/2013, Replaced by 15.4.12
NMAC, Bingo and Raffles - Enforcement Proceedings, effective 2/23/2021.