N.Y. Comp. Codes R. & Regs. tit. 9 § 5000.6

Current through Register Vol. 46, No. 42, October 16, 2024

Section 5000.6 - Hearings on suspension or revocation of lottery sales agent license

(a) A lottery sales agent is entitled to notice and an opportunity to be heard before suspension or revocation of the licensed provided that the lottery sales agent requests such a hearing within 20 days from the date of notice of the suspension or revocation. If the commission or the commission's designee finds that the public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in a written order, summary suspension of a lottery sales agent license may be temporarily ordered, pending proceedings for license suspension or revocation.

(b) A petition requesting a hearing shall be in writing signed by the petitioner or an attorney on behalf of the petitioner and shall include the petitioner's mailing address.

(c) Upon receipt of a petition requesting a hearing, the commission shall issue a notice of hearing fixing the date, time and place at which the hearing shall be held, stating the legal authority and jurisdiction under which the hearing is to be held, referring to the particular sections of the statutes and rules involved, where possible setting forth a short and plain statement of matters asserted, and stating that interpreter services shall be made available, at no charge, pursuant to section 301 of the State Administrative Procedure Act provided that such interpreter services are requested a reasonable time in advance of the hearing. Upon the written application of any party, a more definite and detailed statement of the matters asserted shall be furnished whenever the director or the director's designee finds that the statement in the notice of hearing is not sufficiently definite or not sufficiently detailed. Any more definite and detailed statement so furnished shall be deemed to be a part of the notice of hearing. A notice of hearing shall give at least 10 days' notice to the petitioner and other parties and shall be served either in person or by certified mail.

(d) The hearing officer shall be a person designated by the commission. Upon the filing in good faith by a party of a timely and sufficient affidavit of personal bias or disqualification of a hearing officer, the commission shall determine the matter as part of the record of the proceedings. Whenever a hearing officer is disqualified or it becomes impractical for him or her to continue, another hearing officer may be designated to continue the proceedings unless it is shown that substantial prejudice would result. The hearing officer's written report of the hearing containing findings of fact, conclusions of law, and recommended decisions shall be filed with the commission and mailed to the parties of record, and all parties of record shall have 10 days in which to file exceptions, objections, and replies thereto, after which the commission shall adopt, reverse, or modify the report and recommended decision.

(e) A party shall be required to make disclosures prior to a hearing only as provided by this subdivision. When the revocation of a lottery sales agent license is sought, any party shall, upon written demand and at least seven days prior to the date of the hearing, disclose the evidence that the party intends to introduce at the hearing, including documentary evidence and identification of witnesses who may testify at the hearing, except material protected by law from disclosure, including privileged or confidential information. If after making such disclosure, a party decides to rely on other witnesses or documents, the party shall, as soon as practicable, supplement such party's disclosure by providing the names of such witnesses or copies of such documents.

(f) The hearing officer shall rule on matters of procedure and evidence, and shall conduct the hearing in such manner as, in the hearing officer's discretion, will best serve the attainment of justice. The hearing officer may direct questions to any party or witness.

(g)

(1) The order of proof shall be as follows:

(i) testimony by witnesses in support of the matters asserted against the licensee;

(ii) cross-examination of such witnesses;

(iii) testimony by the licensee and witnesses produced by the licensee; and

(iv) cross-examination of the licensee and the licensee's witnesses.

The hearing officer may, in the hearing officer's discretion, change the order of proof.

(2) Objections or exceptions may be made to the rulings of the hearing officer and the reasons therefor shall be stated, but such objections or exceptions will not be deemed to have been made unless duly noted on the record.

(3) The formal rules of evidence shall not be rigidly enforced in the hearing. Unless objection or exception is made, sustained, and duly noted on the record, all evidence appearing in the record shall be deemed to have been properly admitted for consideration by the commission.

(4) The introduction of cumulative evidence shall be avoided, and the hearing officer may limit the testimony of any witness that the hearing officer deems to be merely cumulative; however, the party offering such testimony may make a short avowal of the testimony that would have been given and if the witness asserts that such avowal is true, the avowal shall be made part of the record.

(5) The hearing officer shall have the authority upon application of any party to reopen an adjourned hearing for the presentation of new or additional evidence. Such application shall be in writing and shall set forth a brief description of the new or additional evidence to be presented.

(6) Oral argument may be made only before the hearing officer. Within the discretion of the hearing officer, such oral argument may be curtailed or limited.

(h)

(1) The record shall include:

(i) all notices, pleadings, motions, and intermediate rulings;

(ii) evidence presented;

(iii) a statement of matters officially noticed except matters so obvious that a statement of them would serve no useful purpose;

(iv) questions and offers of proof, objections thereto, and rulings thereon;

(v) proposed findings and exceptions, if any;

(vi) findings of fact, conclusions of law, and recommendations made by the hearing officer; and

(vii) the decision, determination, opinion, order, or report rendered in the matter by the commission.

(2) The hearing shall be recorded by either stenographic or electronic means.

(3) Upon application made by a licensee, a copy of the record shall be furnished to the licensee. If the stenographic or electronic recording of the hearing has not been transcribed, that portion of the record shall be furnished to the licensee only upon payment of the cost of transcription.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 5000.6