TITLE 15 GAMBLING AND LIQUOR CONTROL
CHAPTER 4 BINGO AND RAFFLES
PART 14 ADMINISTRATIVE APPEAL
15.4.14.1 ISSUING AGENCY: New Mexico Gaming Control Board.
[15.4.14.1 NMAC - Rp, 15.4.14.1 NMAC, 2/23/2021]
15.4.14.2 SCOPE: This rule applies to all licensees,
applicants for licensure, and persons aggrieved by an action of the board or
its agents under the act.
[15.4.14.2 NMAC - Rp, 15.4.14.2 NMAC, 2/23/2021]
15.4.14.3 STATUTORY AUTHORITY: Authority for this rule derives from the
New Mexico Bingo and Raffle Act Section 60-2F-3 NMSA 1978. Sections 60-2F-6, 60-2F-23 and 60-2F-24 NMSA
1978 authorize the board to adopt procedural regulations to govern the
procedures to be followed in administrative appeal hearings conducted pursuant
to the New Mexico Bingo and Raffle Act.
[15.4.14.3 NMAC - Rp, 15.4.14.3 NMAC, 2/23/2021]
15.4.14.4 DURATION: Permanent.
[15.4.14.4 NMAC - Rp, 15.4.14.4 NMAC, 2/23/2021]
15.4.14.5 EFFECTIVE DATE: February
23, 2021, unless a later date is cited at the end of a section.
[15.4.14.5 NMAC - Rp, 15.4.14.5 NMAC, 2/23/2021]
15.4.14.6 OBJECTIVE: This rule establishes the guidelines and
procedures for the conduct of hearings under the New Mexico Bingo and Raffle
Act when the hearing is initiated by a person aggrieved by an action of the
board or its agent. Any person aggrieved
by a decision of the board, including a denial of a license or permit, shall
request a hearing for review of board action pursuant to 15.4.14 NMAC and
obtain a final decision of the board pursuant to 15.4.14.17 NMAC prior to
filing an appeal to the district court.
[15.4.14.6 NMAC - Rp, 15.4.14.6 NMAC, 2/23/2021]
15.4.14.7 DEFINITIONS: For purposes of this 15.4.14 NMAC,
“party” means each person named or admitted as a party to a proceeding before
the board or its duly appointed hearing examiner.
[15.4.14.7 NMAC - Rp, 15.4.14.7 NMAC, 2/23/2021]
15.4.14.8 PUBLIC HEARINGS; LOCATION;
HEARING EXAMINER:
A. All hearings held pursuant to Section 60-2F-24 NMSA
1978 shall be conducted by a hearing examiner duly appointed by the board.
B. Except for telephonic hearings, hearings shall be
conducted at the office of the board.
C. All hearings held pursuant to Section 60-2F-24 NMSA
1978 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.
[15.4.14.8 NMAC - Rp, 15.4.14.8 NMAC, 2/23/2021]
15.4.14.9 REQUEST FOR REVIEW OF BOARD
ACTION:
A. Any person aggrieved by an action of the board or
one of its agents may request a hearing for the purpose of review of such
action. The appellant shall file the request
for hearing within 30 days of the date the action is taken. The request shall include the following:
(1) a statement of
the facts relevant to the review of the action;
(2) a statement of
the provision of the act and the rules promulgated under the act that are
relevant to the review of the action;
(3) a statement of
the arguments that the appellant considers relevant to the review of the
action; and
(4) any other evidence
considered relevant.
B. The hearing examiner will schedule the hearing as
soon as practicable but in any event no later than 60 days from the date it
receives the appellant’s request for hearing.
The hearing examiner may extend the 60 day time upon motion for good
cause shown, or the parties may extend the 60 day time period by mutual
agreement. The hearing examiner shall
issue notice of the hearing, which shall include:
(1) a statement of
the time, place and nature of the hearing;
(2) a statement of
the legal authority and jurisdiction under which the hearing is to be held;
(3) a short and plain
statement of the matters of fact and law asserted;
(4) notice to any other
parties to give prompt notice of issues controverted in fact or law; and
(5) all necessary
telephone numbers if a telephonic hearing will be conducted.
C. All parties shall be given the opportunity to
respond and present evidence and argument on all relevant issues.
[15.4.14.9 NMAC - Rp, 15.4.14.9 NMAC, 2/23/2021]
15.4.14.10 RECORD OF PROCEEDING:
A. The record of the proceeding shall 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 shall bear the cost of transcription.
[15.4.14.10 NMAC - Rp, 15.4.14.10 NMAC, 2/23/2021]
15.4.14.11 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 shall 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 administrative appeal, the appellant 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 subparts, unless, upon motion and for good cause
shown, the hearing examiner grants a party leave to file additional
interrogatories.
[15.4.14.11 NMAC - Rp, 15.4.14.11 NMAC, 2/23/2021]
15.4.14.12 PROCEDURES; EVIDENCE:
A. Any party may be represented by a person licensed to
practice law in the state. An individual appellant 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.
F. 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.
G. The record will include all briefs, proposed
findings and exceptions and shall show the ruling on each finding, exception or
conclusion presented.
H. 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.
[15.4.14.12 NMAC - Rp, 15.4.14.12 NMAC, 2/23/2021]
15.4.14.13 CONDUCT OF
PROCEEDING:
A. Unless the hearing examiner reasonably determines
that a different procedure is appropriate, the hearing shall be conducted in
accordance with the procedures set forth in this rule.
B. In addition to any procedures described by the act,
the following procedures shall apply:
(1) the appellant may
present an opening statement on the merits and the appellee may make a
statement of the defense or reserve the statement until presentation of its
case;
(2) after the opening
statements, if made, the appellant shall present its case in chief in support
of its petition;
(3) upon conclusion of appellant’s case in
chief, the appellee may move for dismissal of the petition; the hearing
examiner may suspend the hearing and refer the motion to the board, which shall
grant, deny, or reserve decision on the motion, with or without argument, as
soon as practicable but in no event later than its next regularly scheduled
board meeting;
(4) if no motion to
dismiss is made, or if the board denies or reserves decision on the motion, the
appellee shall present its case in defense;
(5) upon conclusion of
the appellee’s case, the appellant may present rebuttal evidence;
(6) after presentation of
the evidence by the parties, the appellant may present a closing argument; the
appellee then may present its closing argument, and the appellant may present a
rebuttal argument; and
(7) thereafter, the matter
shall be submitted for recommendation by the hearing examiner.
[15.4.14.13 NMAC - Rp, 15.4.14.13 NMAC, 2/23/2021]
15.4.14.14 BURDEN OF PROOF: The appellant bears the burden of
showing by a preponderance of the evidence that the decision made by the board
or its agents should be reversed or modified.
[15.4.14.14 NMAC - Rp, 15.4.14.14 NMAC, 2/23/2021]
15.4.14.15 CONTINUANCES: The hearing examiner shall not grant a
continuance except for good cause shown.
[15.4.14.15 NMAC - Rp, 15.4.14.15 NMAC, 2/23/2021]
15.4.14.16 DEFAULT; PROCEDURE FOR
RECOMMENDATION OF DEFAULT:
A. Failure of the appellee to schedule a hearing within
60 days, unless the 60 day time period is extended, or of any party to appear
at the hearing on the merits personally or by telephone, without having
obtained a continuance may constitute a default and an admission on all matters
and facts alleged by the opposing party and shall be deemed a waiver of the
right to an evidentiary hearing on the matter. The hearing examiner may proceed to consider
the matter, and the board may dispose of it, on the basis of the evidence
before it.
B. If the appellee fails to schedule a hearing within
60 days, the appellant shall file a motion requesting the hearing examiner to
recommend to the board that default judgment be entered against the appellee:
(1) the appellee 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 appellee to file a response and to request a hearing shall constitute
consent to the granting of the motion; and
(2) if the appellee
timely files a response to the motion, the hearing examiner shall hear the
matter; the hearing examiner may deny the motion and allow the appellee
additional time to schedule a hearing on the merits if an accident, illness or
other good cause prevented the appellee from timely scheduling a hearing.
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.
[15.4.14.16 NMAC - Rp, 15.4.14.16 NMAC, 2/23/2021]
15.4.14.17 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.
B. 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.
C. Not more than 30 days after completion of the
hearing, the hearing examiner shall prepare a written decision containing their
recommendation of action to be taken by the board. The recommendation may propose to sustain,
modify, or reverse the initial decision of the board or its agent.
D. Notice of the hearing examiner’s recommended action
shall be served on the parties as promptly as possible but in no event later
than 15 days after the date of the hearing on the matter. Service shall be made
by registered or certified mail.
E. 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 to sustain, modify, or reverse the
initial decision of the board or its agent.
F. The board may dismiss an appeal with or without
prejudice without recommendation of the hearing officer, upon stipulation of
the parties.
[15.4.14.17 NMAC - Rp, 15.4.14.17 NMAC, 2/23/2021]
15.4.14.18 EX PARTE COMMUNICATIONS:
A. No party or representative of any other person shall
communicate off the record, orally or in writing, 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, orally or in writing, 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 15.4.14.18 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
non-confidential is subject to the prohibition on ex parte communications
withstanding the provisions of Subsections A and B of 15.4.14.18 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; 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.
[15.4.14.18 NMAC - Rp, 15.4.14.18 NMAC, 2/23/2021]
15.4.14.19 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 the 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
non-responsive party 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.
[15.4.14.19 NMAC - Rp, 15.4.14.19 NMAC, 2/23/2021]
15.4.14.20 APPEALS TO THE DISTRICT COURT:
Pursuant to Subsection A of 60-2F-24 NMSA 1978, any person aggrieved by
a final decision of the board issued pursuant to Section 15.4.14.17 NMAC may
appeal to the district court pursuant to the provisions of Section 39-3-1.1
NMSA 1978.
[15.4.14.20 NMAC - Rp, 15.4.14.20 NMAC, 2/23/2021]
HISTORY OF
15.4.14 NMAC: [RESERVED]
History of Repealed Material:
15.4.14 NMAC, Bingo and Raffles - Administrative Appeal,
filed 3/27/2013 - Repealed 2/23/2021,
Other History:
15.4.14 NMAC, Bingo and Raffles - Administrative Appeal,
filed 3/27/2013 Replaced by 15.4.14 NMAC, Bingo and Raffles - Administrative
Appeal, effective 2/23/2021.