CHAPTER
Sw 200 RULES OF PRACTICE AND PROCEDURE
Statutory
Authority: 541-A:16,
I (b)-(d)
REVISION NOTE:
Document #12093, effective 1-27-17, readopted or readopted with
amendments all of the rules in Chapter Sw 200. Specifically, Sw
201 was readopted; Sw 202, Sw
203, Sw 206, and Sw 207
were readopted with amendments; Sw 204 and Sw 205 were readopted with amendments and renumbered,
respectively, as Sw 205 and Sw
204; Sw 208 was readopted with amendments and
renumbered as Sw 208 through Sw
217; Sw 209 through Sw 211
were readopted with amendments and renumbered as Sw
218 through Sw 220; and Sw
212 was readopted with amendments and renumbered as Sw
221. Document #12093 replaces all prior
filings for rules in the former Chapter Sw 200. The prior filings for the former Chapter Sw 200 include the following documents, where italics
indicate documents containing rules, as practice and procedure rules, which
would expire only pursuant to RSA 541-A:17, II:
#6564,
effective 8-21-97, EXPIRED 8-21-05
#8419-A, effective 8-23-05
#8419-B,
effective 8-23-05, EXPIRED 8-23-13
#10668, effective 9-12-14
PART
Sw 201 PURPOSE AND SCOPE
Sw 201.01 Purpose. This chapter provides procedural rules for
the conduct of hearings before the New Hampshire lottery commission affecting the rights or privileges of any person or
organization.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 201.02 Scope. The procedures specified in this chapter
shall apply whenever hearings before the commission are required by statute or
rule.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART
SW 202 DEFINITIONS
Sw 202.01 Definitions. The following definitions shall apply:
(a)
“Appearance” means a written notification to the commission that a party
or a party’s representative intends to actively participate in a hearing;
(b)
"Commission" means the New Hampshire lottery commission established pursuant to RSA
284:21-a;
(c)
"Commissioner" means a member of the New Hampshire lottery
commission;
(d)
"Complaint" means a written allegation of conduct prohibited
by applicable statutes or rules of the commission;
(e)
"Complainant" means a person who has filed a complaint against
another person or organization;
(f)
"Declaratory ruling" means an agency ruling as to the specific
applicability of any statutory provision or of any rule or order of the agency;
(g)
"Hearing" means a component of a proceeding, through which the
commissioner or designee receives testimony, evidence, or arguments, or any
combination thereof;
(h)
"License" means the permit, certificate, approval,
registration, designation, charter or similar form of permission required
pursuant to statutes or rules administered by the commission;
(i) “Motion” means a request to the presiding
officer for an order or ruling directing some act to be done in favor of the
party making the motion, including a statement of justification or reasons for
the request;
(j)
"Order" means the final disposition of a matter before the
commission;
(k)
“Party” means “party” as defined by RSA 541-A:1, XII, namely, “each
person or commission named or admitted as a party, or properly seeking and
entitled as a right to be admitted as a party.” The term “party” includes all intervenors in a proceeding, subject to any limitations
established pursuant to RSA 541-A:32, III;
(l)
"Presiding officer" means
presiding officer as defined in RSA 541-A:1, XIV, namely, “that
individual to whom the commission has delegated the authority to preside over a
proceeding, if any, otherwise it means the head of the commission.” The
presiding officer includes a hearings officer or officers appointed by the
commission in accordance with RSA 284:13, II;
(m)
"Proceeding" means any adjudication in which the legal rights,
duties or privileges of a person or organization are required by rule or
statute to be determined by the agency after opportunity for a hearing;
(n)
"Revocation" means loss of a license or approval granted by
the commission; and
(o)
"Suspension" means temporary loss of a license or approval by
the commission.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART Sw 203
COMPLIANCE WITH RULES
Sw 203.01 Failure to Comply with Rules. Failure to comply with Sw
200 shall result in the commission:
(a)
Refusing to accept a non-compliant document for filing;
(b)
Denying or conditionally denying a non-compliant application or request;
or
(c)
Issuing an order adverse to a non-compliant person.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 203.02 Waiver
or Suspension of Rules by Presiding Officer.
(a)
The presiding officer, upon his or her own initiative or upon the motion
of any party, shall suspend or waive any requirement or limitation imposed by
this chapter upon reasonable notice to affected persons when the proposed
waiver or suspension appears to be lawful, and would be more likely to promote
the fair, accurate, and efficient resolution of issues pending before the
commission than would adherence to a particular rule.
(b)
A motion to request the suspension or waiver of rules shall:
(1) Be in writing;
(2) Specify the rule(s) by number; and
(3) Specify the facts which the party relies upon
to support the request.
(c)
The commission shall grant the request to suspend or waive any
requirement or limitation of this chapter when doing so:
(1) Would not conflict with any applicable
statute;
(2) Would not result in any material prejudices;
and
(3) Would be more likely to promote the fair,
accurate and efficient resolution of issues pending before the commission than
would adherence to a particular rule or procedure.
(d)
The commission shall render a decision to grant or deny the request
within 30 days of the filing of the request.
(e)
The commission shall notify the person in writing within 10 days of the
decision to grant or deny the request in writing.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART Sw 204
COMPLAINTS
Sw 204.01 Who
May File a Complaint. Any person who
has personal knowledge that any other person, or any organization licensed or
otherwise approved by the commission has violated any statute or rule
administered by the commission may file a complaint against that person or
organization.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 204.02 Misconduct
Sufficient to Support a Complaint.
Misconduct sufficient to support a complaint shall include, but is not
limited to:
(a)
The practice of fraud or deceit in dealing with the commission or with
the public; and
(b)
Violation of any statutes or rules administered by the commission.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 204.03 Form
of Complaints. Complaints filed with
the commission shall contain:
(a)
The name and address of the complainant;
(b)
The name and address of the complainant's representative, if any;
(c)
A concise statement of the facts which caused the complainant to file
the complaint;
(d) The identification of any
statutes, rules, orders or other authority which the complainant alleges have
been violated, if known to the complainant; and
(e)
The name and address of the person or organization against whom the
complainant complains.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 204.04 Receipt
and Review of Complaints.
(a)
Upon receipt of a complaint, the commission shall determine whether or
not the complaint has merit to commence an investigation, in accordance with
the criteria set forth in Sw 205.01(a) below.
(b)
The commission shall, pursuant to the report of the investigating
officer (s), if applicable:
(1) Dismiss the complaint and notify the
aggrieved complainant of such dismissal within 10 days of such decision,
stating the reasons for such dismissal; or
(2) Commence an adjudicative proceeding pursuant
to these rules.
(c)
The commission shall dismiss a complaint if the complainant fails to:
(1) State clearly the circumstances of the
complaint;
(2) Respond to a request for information; or
(3) Participate in any investigation or hearing
ordered by the commission.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART Sw 205
INVESTIGATIONS
Sw 205.01 When
and by Whom Investigations May be Conducted.
(a)
The commission shall conduct an investigation if:
(1) Information is received which leads the
commission to believe a violation of any statute administered by the
commission, or of any commission rule, has occurred or is likely to occur;
(2) A complaint against a person or organization
under the jurisdiction of the commission has been received; or
(3) Additional information relevant to a
commission proceeding is required.
(b)
Pursuant to RSA 284:21-i, I, the commission shall employ technical
assistants, as authorized by the governor and council, to act as investigating
officers to conduct an investigation and submit an investigation report to the
commission for their approval. The
commission shall review and approve or reject such report within 30 days.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 205.02 Authority
of Investigating Officer(s).
(a) The commission or appointed investigating
officer(s) shall interview the person/organization alleged to have committed
the violation or about to commit a violation, and/or any other person who might
have knowledge of the violation or potential violation.
(b)
The commission shall specify points to be covered during the
investigation, such as, but not limited to, whether the conduct being
complained about represents an isolated incident, or whether similar complaints
have been received.
(c) The investigating officer(s) shall review
records, data and other documents to obtain information pertinent to the
investigation.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART Sw 206
PRESIDING OFFICER’S APPOINTMENT AND PARTICIPATION
Sw 206.01 Applicability. These rules shall apply to all proceedings
conducted by the commission except rulemaking and non-adjudicative
investigations.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 206.02 Presiding
Officer’s Appointment; Authority.
(a)
All hearings shall be conducted by an individual appointed or authorized
to serve as a presiding officer.
(b)
In accordance with RSA 284:13, II, the commission shall, in accordance
with the rules adopted in accordance with RSA 541-A, appoint a hearings officer
or hearings officers, as necessary, to preside over such hearings as are
required to comply with federal and state statutes and federal or state rules
or regulations. The decision of the officer shall not be contrary to rules
adopted by the lottery commission pursuant to RSA 541-A. The officer's decision
shall be binding on all parties unless such decision is overturned on appeal.
(c)
A presiding officer shall as necessary:
(1) Regulate and control the course of a hearing;
(2) Facilitate an
informal resolution of an appeal;
(3) Administer oaths and affirmations;
(4) Receive relevant evidence at hearings and
exclude irrelevant, immaterial or unduly repetitious evidence;
(5) Rule on procedural requests, including
adjournments or postponements, at the request of a
5 party or on
the presiding officer's own motion;
(6) Question any person who testifies;
(7) Cause a complete record of any hearing to be
made, as specified in RSA 541-A:31, VI and RSA 284:13;
and
(8) Take any other action consistent with
applicable statutes, rules and case law necessary to conduct the hearing and
complete the record in a fair and timely manner.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 206.03 Withdrawal
of Presiding Officer or Commission Official.
(a)
Upon his or her own initiative or upon the motion of any party, the
presiding officer shall, for good cause or to avoid the appearance of impropriety
or lack of impartiality, withdraw from any hearing governed by this chapter.
(b)
For the purposes of this section good cause shall exist if the presiding officer:
(1) Has a direct interest in the outcome of the
proceeding, including but not limited to, a financial or family relationship,
within the third degree of relationship, with any party;
(2) Has made statements or engaged in behavior
which objectively demonstrates that he or she has prejudged the facts of the
case; or
(3) Personally believes that he or she cannot
fairly judge the facts of the case.
(c)
Mere knowledge of the issues or acquaintance with any party, or witness
shall not constitute good cause for withdrawal by the presiding officer.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART Sw 207
FILING, FORMAT AND DELIVERY OF
DOCUMENTS
Sw 207.01 Date
of Issuance or Filing. All written
documents governed by these rules shall be rebuttably
presumed to have been issued on the date noted on the document and to have been
filed with the commission on the actual date of receipt by the commission, as
evidenced by a date stamp placed on the document by the commission in the
normal course of business.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 207.02 Format
of Documents.
(a)
All correspondence, pleadings, motions, or other documents filed under
these rules shall:
(1) Include the title and docket number of the
proceeding, if known;
(2) Be typewritten or clearly printed on durable
paper 8 1/2 by 11 inches in size;
(3) Be signed by the party or proponent of the
document, or, if the party appears by a representative, by the representative;
and
(4) Include a statement certifying that a copy of
the document has been delivered to all parties to the proceeding in compliance
with Sw 207.03 below.
(b)
A party or representative's signature on a document filed with the
commission shall constitute certification that:
(1) The signer has read the document;
(2) The signer is authorized to file it;
(3) To the best of the signer’s knowledge,
information and belief there are good and sufficient grounds to support it; and
(4) The document has not been filed for purposes
of delay.
(c)
All documents shall contain the address and title, if any, of the
signors.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 207.03 Delivery
of Documents.
(a)
Copies of all petitions, motions, exhibits, memoranda, or other
documents filed by any party to a proceeding governed by these rules shall be
delivered by that party to all other parties to the proceeding.
(b)
All notices, orders, decisions or other documents issued by the
presiding officer or commission shall be delivered to all parties to the
proceeding.
(c)
Delivery of all documents relating to a proceeding shall be made by
personal delivery or by depositing a copy of the document, by first class mail,
postage prepaid, in the United States mail, addressed to the last address given
to the commission by the party.
(d) When a party appears by a representative,
delivery of a document to the party's representative at the address stated on
the appearance filed by the representative shall constitute delivery to the
party.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 207.04 Hearing
Record and Notice.
(a)
The presiding officer shall establish a
record of the proceeding and send a copy of the order of notice to all parties
to the proceeding at least 15 days before the first date of the hearing.
(b)
Copies of all subsequent orders and notices in the proceeding shall also
be sent to all parties involveed within 10 days.
(c)
Orders, notices, written documents, and all other materials submitted in
a proceeding shall be kept in the hearing record in the main office of the
commission.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART Sw 208
TIME PERIODS
Sw 208.01 Computation
of Time.
(a)
Unless otherwise specified, all time periods referenced in this chapter
shall be calendar days.
(b)
Computation of any period of time referred to in these rules shall begin
with the day after the action which sets the time period in motion, and shall
include the last day of the period so computed.
(c)
If the last day of the period so computed falls on a Saturday, Sunday or
legal holiday, then the time period shall be extended to include the first
business day following the Saturday, Sunday or legal holiday.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 208.02 Change
in Allowed Times.
(a)
Except where the time is fixed by statute, the commission shall extend
or shorten the time provided for the filing of any document, or advance or
postpone the time set for any oral hearing if the request for a change of time
meets the requirements in (b) and (c) below.
(b)
A request to change time shall be filed at least 4 business days
preceding the event in question.
(c)
A request for a change of time shall be granted upon a finding of
diligence and hardship to the complainant making the request which outweighs
any hardship likely to be suffered by any other party to the proceeding.
Source. (See Revision Note at chapter heading for
Sw 200) #12093,
eff 1-27-17
PART Sw 209
MOTIONS
Sw 209.01 Motions;
Objections.
(a)
Motions shall be in written form and filed with the presiding officer,
unless made in response to a matter asserted for the first time at a hearing or
on the basis of information which was not received in time to prepare a written
motion.
(b)
Oral motions and any oral objection to such motions shall be recorded in
full in the record of the hearing. If the presiding officer finds that the
motion requires additional information in order to be fully and fairly
considered, the presiding officer shall direct the moving party to submit the
motion in writing, with supporting information.
(c)
Objections to written motions shall be filed within 30 days of the date
of the motion.
(d)
Failure by an opposing party to object to a motion shall not in and of
itself constitute grounds for granting the motion.
(e)
The presiding officer shall rule upon a motion after full consideration
of all objections and other factors relevant to the motion.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART Sw 210
NOTICE OF HEARING; APPEARANCES; PRE-HEARING CONFERENCES
Sw 210.01 Commencement
of Hearing. A hearing shall be
commenced by an order of the commission giving notice to the parties as
required by Sw 207.04 above.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 210.02 Docket
Numbers. A docket number shall be
assigned to each matter to be heard which shall appear on the notice of hearing
and all subsequent orders or decisions of the commission.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 210.03 Notice
of Hearing. A notice of a hearing
issued by the commission shall contain the information required by RSA 541-A:31, III, namely:
(a)
A statement of the time, place and nature of any hearing;
(b)
A statement of the legal authority under which a hearing is to be held;
(c) A reference to the particular statutes and
rules involved including this chapter;
(d)
A short and plain statement of the issues presented;
(e) A statement that each party has the right to
have an attorney represent them at their own expense; and
(f) A statement that each party has the right to
have the commission provide a complete record the hearing by a competent
reporter or by electronic recording which shall be transcribed at the party’s expense and that any such
request shall be submitted in writing at least 10 days prior to the hearing.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 210.04 Appearances. A party or the party’s representative shall
file an appearance that includes the following information:
(a)
A brief identification of the matter;
(b)
A statement as to whether or not the representative is an attorney and
if so, whether the attorney is licensed to practice in New Hampshire; and
(c)
The party or representative's daytime address and telephone number.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 210.05 Prehearing
Conference. Any party may request,
or the presiding officer shall schedule on his or her own initiative, a
prehearing conference in accordance with RSA 541-A:31,
V to consider:
(a) Offers of settlement;
(b)
Simplification of the issues;
(c)
Stipulations or admissions as to issues of fact or proof by consent of
the parties;
(d)
Limitations on the number of witnesses;
(e)
Changes to standard procedures desired during the hearing by consent of
the parties;
(f)
Consolidation of examination of witnesses; or
(g)
Any other matters which aid in the disposition of the proceeding.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART Sw 211
REPRESENTATION
Sw 211.01 Representation.
(a)
If a party chooses to be represented by some other person, he or she
shall notify the commission at the earliest date practical of the name and
address of the representative.
(b)
Any party in a commission proceeding may be represented by counsel, but
counsel so retained shall not be paid for by the state.
(c)
Requests for appointment of counsel shall not be entertained.
(d)
A representative shall be either an attorney-at-law, licensed in New
Hampshire, or such other individual as the party may designate.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 211.02 Disqualification
or Suspension. The commission shall,
after notice and opportunity for hearing, upon a finding of misconduct,
pursuant to Sw 204.02 above, by any individual
relating to representation before the agency, prohibit that individual from
acting as representative before the agency.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART Sw 212
ROLES OF COMMISSION STAFF AND COMPLAINANTS
Sw 212.01 Role
of Commission Staff in Enforcement or Disciplinary Hearings. Unless called as witnesses, commission staff
shall have no role in any enforcement or disciplinary hearing.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 212.02 Role
of Complainants in Enforcement or Disciplinary Hearings. Unless called as a witness or granted party
or intervenor status, a person who initiates an
adjudicative proceeding by complaining to the commission about the conduct of
person who becomes a party shall have no role in any enforcement or
disciplinary hearing.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART Sw 213
INTERVENTION
Sw 213.01 Intervention.
(a)
A non-party may intervene in a matter pending before an commission under
the provisions of RSA 541-A:32, by filing a motion stating facts demonstrating
that the non-party's rights or other substantial interests might be affected by
the proceeding or that the non-party qualifies as an intervenor
under any provision of law.
(b)
A copy of a motion submitted pursuant to (a) above shall be mailed to
the commission and to all persons identified in the notice commencing the
adjudicative proceeding.
(c)
The presiding officer shall grant the motion for intervention if:
(1) The petitioner complied with (a) and (b)
above at least 3 days before the hearing
and the presiding officer determines that:
a. The petition states facts demonstrating that
the petitioner's rights, duties, privileges, immunities or other substantial interests might be affected by the
proceedings or the petitioner qualifies as an intervenor
under law; and
b. The intervention sought would not impair
the interests of justice and the orderly and prompt conduct of the proceedings;
or
(2) The petitioner complied with (a) and (b)
above at any time and the presiding officer determines that the intervention
sought would be in the interests of justice and would not impair the orderly
and prompt conduct of the proceedings.
(d)
Approval of intervention by the presiding officer shall apply only to
the proceeding in which the petition for intervention was granted.
(e) Notwithstanding the provisions of this
chapter, an intervenor's right to participate in an
adjudicative proceeding shall be subject to any limitations or conditions
imposed by the presiding officer pursuant to RSA 541-A:32, III.
(f)
An intervenor shall take the proceedings as he
or she finds them and no portion of the proceeding shall be repeated because of
the fact of intervention.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART Sw 214
POSTPONEMENT REQUESTS AND FAILURE TO ATTEND HEARING
Sw 214.01 Postponements.
(a)
Any party to a hearing may make an oral or written motion that a hearing
be postponed to a later date or time.
(b)
If a postponement is requested by a party to the hearing, it shall be
granted if the presiding officer determines that good cause has been
demonstrated. Good cause shall include the unavailability of parties, witnesses
or attorneys necessary to conduct the hearing, the likelihood that a hearing
will not be necessary because the parties have reached a settlement, or any
other circumstances that demonstrate that a postponement would assist in
resolving the case fairly.
(c)
If the later date, time, and place are known at the time of the hearing
that is being postponed, the date, time, and place shall be stated on the
record. If the later date, time, and place are not known at the time of the
hearing that is being postponed, the presiding officer shall issue a written
scheduling order stating the date, time, and place of the postponed hearing as
soon as practicable.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 214.02 Failure
to Attend Hearing. If any party to
whom notice has been given in accordance with Sw
210.03 above fails to attend a hearing, the presiding officer shall declare
that party to be in default and either:
(a)
Dismiss the case, if the party with the burden of proof fails to appear;
or
(b)
Hear the testimony and receive the evidence offered by a party, if that
party has the burden of proof in the case.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART Sw 215
REQUESTS FOR INFORMATION OR DOCUMENTS
Sw 215.01 Voluntary
Production of Information.
(a)
Each party shall attempt in good faith to make complete and timely
response to requests for the voluntary production of information or documents
relevant to the hearing.
(b)
When a dispute between parties arises concerning to a request for the
voluntary production of information or documents, any party may file a motion
to compel the production of the requested information under Sw
215.02 below.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 215.02 Motions
to Compel Production of Information.
(a)
Any party may make a motion requesting that the presiding officer order
the parties to comply with information requests. The motion shall be filed at
least 30 days before the date scheduled for the hearing, or as soon as possible
after receiving the notice of hearing if such notice is issued less than 30
days in advance of the hearing.
(b)
The moving party’s motion shall:
(1) Set forth in detail those factors which it
believes justify its request for information; and
(2) List with specificity the information it is
seeking to discover.
(c)
When a party has demonstrated that such requests for information are
necessary for a full and fair presentation of the evidence at the hearing, the
presiding officer shall grant the motion.
Source. (See Revision Note at chapter heading for
Sw 200) #12093,
eff 1-27-17
Sw 215.03 Mandatory
Pre-Hearing Disclosure of Witnesses and Exhibits. At least 5 days before the hearing the
parties shall exchange a list of all witnesses to be called at the hearing with
a brief summary of their testimony, a list of all documents or exhibits to be
offered as evidence at the hearing, and a copy of each document or exhibit.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART Sw 216 RECORD, PROOF, EVIDENCE AND DECISIONS
Sw 216.01 Record
of the Hearing.
(a)
The commission shall record the hearing by tape recording or other
method that will provide a verbatim record.
(b)
If any person requests a transcript of the taped record, the commission
shall cause a transcript to be prepared and, upon receipt of payment for the
cost of the transcription, shall provide copies of the transcript to the
requesting party.
(c)
In accordance with RSA 284:13, the commission,
on its own motion or at the request of any party, shall cause a complete record
to be made of such hearings by a competent reporter or by electronic recording
which shall be transcribed at the request and expense of any party desiring the
same, and a copy of such transcription shall be furnished to any other party
upon the written request and at the expense of such other party. If the record
is not transcribed, the lottery commission shall prepare a summary record of
the proceedings and evidence.
(d)
A request for a certified shorthand court reporter, per (c) above, shall be filed at least 10 days prior to the hearing.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 216.02 Standard
and Burden of Proof. The party
asserting a proposition shall bear the burden of proving the truth of the
proposition by a preponderance of the evidence, which means a demonstration by
admissible evidence that a fact or legal conclusion is more probable than not
to be true.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 216.03 Testimony;
Order of Proceeding.
(a)
In accordance with RSA 284:13, I, any member of the commission, or the
commission's designee, may administer oaths and affirmations, examine
witnesses, and receive testimony and shall forward findings to the full
commission as part of the hearing.
(b)
Any person offering testimony, evidence or arguments shall state for the
record his or her name, and role in the proceeding. If the person is
representing another person, the person being represented shall also be
identified.
(c)
Testimony shall be offered in the following order:
(1) The party or parties who bears the burden of
proof shall first present all evidence and such witnesses as the party necessary to support his/her allegation;
(2) The party or parties opposing the party who
bears the overall burden of proof shall then present any evidence desired and
such witnesses as the party may call in defense, or as directed in the order of
notice;
(3) The party that bears the burden of proof shall
then present any evidence desired in rebuttal; and
(4) A party who calls a witness shall first
examine the witness. Thereupon, the
party opposing may cross-examine the witness.
The party sponsoring the witness may then re-examine the witness.
(d)
Oral sessions of the proceeding shall be audio-recorded.
(e)
A copy of the tape shall be made and kept in the record.
(f)
The presiding officer shall close the proceedings after all evidence is
offered and all witnesses have presented their testimony.
(g)
Per RSA 284:13, I, false swearing before the commission shall be
attended with the same penalties as if such false swearing occurred in an
action in the superior court.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 216.04 Evidence.
(a)
Receipt of evidence shall be governed by the provisions of RSA 541-A:33.
(b)
Exhibits shall be sequentially identified and numbered in a single
series.
(c)
All documents, materials and objects offered as exhibits shall be
admitted into evidence unless excluded by the presiding officer as irrelevant,
immaterial, unduly repetitious or legally privileged.
(d)
All objections to the admissibility of evidence shall be stated as early
as possible in the hearing, but not later than the time when the evidence is
offered.
(e)
Transcripts of testimony and documents or other materials, admitted into
evidence shall be public records unless the presiding officer determines that
all or part of a transcript or document is exempt from disclosure under RSA
91-A:5 or applicable case law.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 216.05 Proposed
Findings of Fact and Conclusions of Law.
(a)
Any party may submit proposed findings of fact and conclusions of law to
the presiding officer prior to or at the hearing.
(b)
Upon request of any party, or if the presiding officer determines that
proposed findings of fact and conclusions of law would serve to clarify the
issues presented at the hearing, the presiding officer shall specify a date
after the hearing for the submission of proposed findings of fact and
conclusions of law.
(c)
In any case where proposed findings of fact and conclusions of law are
submitted, the decision shall include rulings on the proposals.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 216.06 Closing
the Record.
(a)
After the conclusion of the hearing, the record shall be closed and no
other evidence shall be received into the record, except as allowed by (b)
below and Sw 216.07 below.
(b)
Before the conclusion of the hearing, a party may request that the
record be left open to allow the filing of specified evidence not available at
the hearing. If the other parties to the hearing have no objection or if the
presiding officer determines that such evidence is necessary to a full
consideration of the issues raised at the hearing, the presiding officer shall
keep the record open for the period of time necessary for the party to file the
evidence.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 216.07 Reopening
the Record.
(a)
At any time prior to the issuance of the decision on the merits, the
presiding officer, on the presiding officer’s own initiative or on the motion
of any party, shall reopen the record to receive relevant, material and
non-duplicative testimony, evidence, or arguments not previously received, if
the presiding officer determines that such testimony, evidence, or arguments
are necessary to a full and fair consideration of the issues to be decided.
(b)
The presiding officer shall grant a motion, pursuant to (a) above when:
(1) There is no objection from any other party or
intervenor;
(2) The evidence sought to be included in the
record was not available at the time of the hearing or the claim of law was
inadvertently omitted; and
(3) The presiding officer determines that the
evidence or claim of law is relevant, material, and non-duplicative and its
inclusion in the record is necessary to a full and fair consideration of the
issues to be decided.
(c)
If there is an objection from a party or intervenor
to a motion made pursuant to (a) above, the hearing shall be reopened for the
purpose of receiving evidence, permitting cross-examination and permitting
argument on the issue of reopening the record.
(d)
The presiding officer shall grant a motion made pursuant to (a) above
if, after the reopened hearing described in (c) above, the presiding officer
determines that the evidence sought to be included in the record was not
available at the time of the hearing or the claim of law was inadvertently
omitted and the evidence or claim of law is relevant, material, and
non-duplicative, and its inclusion in the record is necessary to a full and
fair consideration of the issues to be decided.
(e)
If the presiding officer permits the reopening of the record for the
admission of specified evidence or claim of law, the presiding officer shall
extend the hearing reopened pursuant to (c) above for the purpose of receiving
evidence, permitting cross-examination and permitting argument on the substance
of the evidence or on the claim of law.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 216.08 Decisions.
(a)
In accordance with RSA 284:13, II, the decision of the presiding officer
shall:
(1) Not be contrary to rules adopted by the
commission pursuant to RSA 541-A; and
(2) Be binding on all parties unless such
decision is overturned on appeal.
(b)
The presiding officer shall issue a decision in the form of a final
order within 30 days of the proceeding.
(c)
A copy of the final order shall be sent to all parties to the proceeding
within 10 days of the date of the final order.
(d)
In accordance with RSA 284:13, II, the presiding officer's decision
shall be binding on all parties unless such decision is overturned on appeal.
(e) The commission shall keep a decision on file
in its records for at least 5 years following the date of the final decision or
the date of the decision on any appeal, unless the director of the division of
records management and archives of the department of state sets a different
retention period pursuant to rules adopted under RSA 5:40.
(f) In accordance with RSA 284:13, I,
any party aggrieved by any final decision entered in proceedings before the
commission may, within 10 days after such decision is entered, appeal to the
superior court by petition specifying the grounds upon which the decision is claimed
to be unreasonable or unlawful. Findings and decisions by the commission shall
be deemed to be prima facie lawful and reasonable, and shall not be set aside
on appeal unless found to be arbitrary, capricious, unreasonable, or unlawful.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART Sw 217
MOTION FOR REHEARING
Sw 217.01 Purpose.
The rules in this part are intended to supplement any statutory
provisions, including RSA 541, that require or allow a person to request a
rehearing of a decision of the commission prior to or in lieu of appealing the
decision.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 217.02 Applicability. The rules in this part shall apply whenever
any person has a right under applicable law to request a rehearing of a
decision prior to filing an appeal of the decision with the court having
appellate jurisdiction.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 217.03 Filing
and Content of Motion.
(a)
A motion for rehearing shall be filed within 30 days of the date of the
commission’s decision or order.
(b)
A motion for rehearing shall:
(1) Identify each error of fact, error of
reasoning, or error of law which the moving party wishes to have reconsidered;
(2) Describe how each error causes the
commission's decision to be unlawful, unjust or unreasonable, or illegal in
respect to jurisdiction, authority or observance of the law, an abuse of
discretion or arbitrary unreasonable or capricious;
(3) State concisely the factual findings,
reasoning or legal conclusion proposed by the moving party; and
(4) Include any argument or memorandum of law the
moving party wishes to file.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 217.04 Standard
for Granting Motion for Rehearing.
(a) A motion for rehearing in a case
subject to appeal under RSA 541 shall be granted if it demonstrates that the
commission’s decision is unlawful, unjust or unreasonable.
(b)
A motion for rehearing in a case subject to appeal by petition for writ
of certiorari shall be granted if it demonstrates that the commission's
decision is illegal in respect to jurisdiction, authority or observance of law,
an abuse of discretion or arbitrary, unreasonable or capricious.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 217.05 Decision
on Motion for Rehearing. The
hearings officer shall grant or deny a motion for rehearing, or suspend the
order or decision pending further consideration within 10 days of the filing of
the motion for rehearing.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART Sw 218
SANCTIONS
Sw 218.01 When
Sanctions May Be Imposed. The
commission shall impose sanctions after hearing and upon the finding that a
person or organization licensed by the commission violated an agency rule or
statute.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 218.02 Sanctions.
(a)
The commission shall require that corrective action be taken within a
specified period of time as a condition of continued licensure or re-licensure
if the commission determines that such licensee remains out of compliance.
(b)
The commission shall require, in the case of an organization approved by
the commission for the provision of services, that
corrective action be taken within a specified period of time as a condition of
continued approval if such service provider remains out of compliance.
(c)
The commission shall issue a written reprimand to
the person or organization if no corrective action is necessary under
(a) or (b) above.
(d)
The commission shall suspend the license or approval for up to one year
depending on the severity of the violation, during which time the person or
organization shall be considered to be unlicensed or unapproved if the violation
was not a first violation.
(e)
The commission shall revoke the license or approval if the licensee
indicates an inability or unwillingness to comply as demonstrated by a pattern
of violations.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 218.03 Record
of Disciplinary Sanction. A copy of
the disciplinary sanction imposed shall be placed in the record.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART Sw 219
PUBLIC COMMENT HEARINGS FOR RULEMAKING
Sw 219.01 Purpose. The purpose of this part is to provide a
uniform procedure for the conduct of public hearings at which comment from the
general public will be solicited for evaluation and consideration by a quorum
of the commission relative to the adoption, amendment or repeal of a commission
rule under RSA 541-A.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 219.02 Scope. These rules shall apply to all hearings
required by state law to be conducted by the commission at which public comment
shall be solicited under RSA 541-A:11. They shall not apply to contested cases as
defined by RSA 541-A:1, IV.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 219.03 Notice. In accordance with RSA 541-A:6, the commission shall give at least 20 days prior notice
in the N. H. Rulemaking Register of its intent to hold a public hearing and the
cut-off date for the submission of written testimony pursuant to RSA 541-A:11,
I, on any proposed adoption, amendment, readoption, readoption with amendment,
or repeal of a rule. Pursuant to RSA 541-A:6, I, the
notice period shall begin on the day after the date of publication of the
notice in the Rulemaking Register.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 219.04 Postponements;
Relocation.
(a)
In accordance with RSA 541-A:11, IV, a public
hearing shall be postponed when:
(1) The weather is so inclement that it is
reasonable to conclude that people wishing to attend the hearing will be unable
to do so; or
(2) Postponement will facilitate greater
participation by the public.
(b)
In accordance with RSA 541-A:11, V, a hearing
shall be moved to another location when the original location is not able to
accommodate the number of people who wish to attend.
(c)
In accordance with RSA 541-A:11, III, a hearing
shall be continued past the scheduled time or to another date when:
(1) The time available is insufficient to give
each person who wishes to speak a reasonable opportunity to do so; or
(2) The capacity of the room in which the hearing
is to be held does not accommodate the number of people who wish to attend, and
it is not possible to move the hearing to another location.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 219.05 Media
Access.
(a)
Public comment hearings shall be open to the print and electronic media.
(b)
The moderator shall place limits on the activities of the media to avoid
disruption in the following ways:
(1) Limit the placement of television cameras to
certain locations in the hearing room; and
(2) Prohibit interviews from being conducted
within the hearing room during the hearing.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 219.06 Moderator.
(a) The hearing shall be presided over
by the moderator who shall be the commission chair or designee.
(b)
The moderator shall:
(1) Call the hearing to order;
(2) Cause a recording of the hearing to be made;
(3) Place a limit on the media to avoid
disruption as set out in Sw 219.05(b);
(4) Recognize those who
wish to be heard and establish the order thereof;
(5) Limit the time for each speaker, as set out
in Sw 219.06 (b)(2);
(6) Recognize or revoke recognition of a speaker
for cause as set out in Sw 210.06(b)(3);
(7) Remove or have removed any person who
disrupts the hearing;
(8) Adjourn the hearing; and
(9) Provide
opportunity for the submission of written comments consistent with the notice
published in the rulemaking register.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 219.07 Public
Participation.
(a)
Any person who wishes to provide verbal testimony on the issue or issues
which are the subject of the hearing shall provide their name, contact
information and whom they represent in writing to the moderator.
(b)
The commission, through the moderator, shall:
(1) Refuse to recognize a person who refuses to
give his or her full name and address;
(2) When a group or organization wishes to
comment, limit the group to no more than 3 persons, provided that the members
who are present may enter their names and addresses into the record as
supporting the position by the group or organization; and
(3) Revoke recognition of a speaker who:
a. Speaks or acts in an abusive or disruptive
manner; or
b. Refuses to keep comments relevant to the
issues which are the subject of the hearing.
(c) The moderator shall rule any
comments, questions, or discussions that the presiding officer determines not
to be relevant to the subject of the non-adjudicatory public hearing out of
order, and proceed to the next speaker.
(d)
Anyone wishing to submit written testimony or exhibits shall sign, and
date the items before submitting them to the moderator.
(e)
Written comments may be submitted any time from the time the notice has
been published until the record has been closed by the moderator, which shall
be consistent with the notice published in the rulemaking register.
(f)
When the moderator determines that no person has further questions or
comments that are relevant to the subject of the hearing, the presiding officer
shall close the hearing.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART Sw 220
RULES FOR PETITIONING THE COMMISSION
Sw 220.01 Rulemaking
Petitions.
(a)
Any interested person may petition the commission for the adoption,
amendment, or repeal of any commission rule under RSA 541-A.
(b) Within 30 days of the receipt of
the completed petition required by Sw 220.03 below,
the commission shall either:
(1) Initiate rulemaking procedures in compliance
with the petition and in accordance with RSA 541-A; or
(2) Deny the petition in writing, stating the
reasons for the denial. Such reasons
shall detail why the commission has concluded that the problem can be solved by
a method that does not require a formal
rulemaking proceeding.
(c)
The commission shall determine whether to initiate a requested procedure
or deny a petition based on whether the requested change is consistent with the
duties of the commission under RSA 284:12, and RSA 284:21-i and whether the
issue can be addressed without rulemaking.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 220.02 Petition
for Declaratory Ruling.
(a)
Any interested person may petition the commission using the form
specified in Sw 220.03 below, requesting a
declaratory ruling on the applicability of any statute concerning the
commission or rule adopted by the commission.
(b)
Within 45 days of the receipt of the completed petition required by Sw 220.03 below, the commission shall either:
(1) Issue a declaratory ruling responsive to the
petition; or
(2) If a legal
opinion is required, the commission shall request the opinion of the attorney
general's office and issue a responsive declaratory ruling within 20 working
days of receipt of the attorney general's reply explaining the reply to the
petitioner.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
Sw 220.03 Petition
Form.
(a)
The commission shall consider any petition which meets the following
minimum requirements:
(1) Each petition shall be in legible written
form and addressed to the commission as follows:
Chair, Lottery
Commission
14 Integra Drive
Concord, NH 03301
(2) Petitions for proposed rulemaking shall:
a. State the nature of each proposed
rule;
b. State the petitioner's reasons for
proposing the rule; and
c. Include a text of the proposed rule;
(3) Petitions for the amendment or repeal of a rule
shall identify specifically which rule or rules are to be amended or repealed
and state the petitioner's reasons for proposing the rule change;
(4) Petitions for a declaratory ruling shall
identify all material facts and specify the statute, rule or order on which a
declaratory ruling is sought;
(5) Each petition shall include the name and the
address of the petitioner, and, if applicable, the name and address of the
organization the petitioner represents; and
(6) Each petition shall include the date of the
petition and shall be signed by the petitioner.
(b) If the petition is deficient and
does not meet the minimum requirements of (a) above, the commission shall
notify the petitioner within 10 working days of the receipt of the incomplete
petition.
(c)
Notification pursuant to (b) above shall be in writing and:
(1) Identify the specific deficiencies; and
(2) Contain an explanation of how the petition
can be corrected and allow the petitioner to amend the petition in accordance
with the terms of the notification.
(d) A complete petition which meets the
requirements of these rules shall be placed on the next available commission
agenda.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
PART Sw 221
EXPLANATION OF ADOPTED RULES
Sw 221.01 Petition
for Explanation of Adopted Rules.
(a) Any interested person may, within
30 days of the final adoption of a rule, request a written explanation of that
rule.
(b)
Each petition shall be in legible written form and addressed to the
executive director as follows:
Executive
Director, Lottery Commission
14 Integra Drive
Concord, NH 03301
(c)
Petitions for explanations of adopted rules shall contain the name and
address of the individual making the request or, if the request is that of an
organization, the name and address of such organization and the name and
address of the representative authorized by the organization to make the request.
(d) The executive director shall,
within 90 days of receiving a request, provide a written response which:
(1) Concisely states the meaning of the rule
adopted;
(2) Concisely states the principal reasons for
and against the adoption of the rule in its final form; and
(3) State, if if the
commission did so, why the commission overruled any arguments and
considerations presented against the rule.
Source. (See Revision Note at chapter heading
for Sw 200) #12093,
eff 1-27-17
APPENDIX
Rule |
Specific
State or Federal Statutes or Regulations which the Rule Implements |
Sw 201 |
RSA 541-A:16,
I(b)(2); RSA 541-A:30-a, I; RSA 284:13 |
Sw 202 |
RSA 541-A:16,
I(b)(2); RSA 541-A:30-a, I |
Sw 203 |
RSA 541-A:16,
I(b)(2); RSA 541-A:22, IV; RSA 541-A:30-a, I |
Sw 204 |
RSA 541-A:16,
I(b)(2), RSA 541-A:30-a, I |
Sw 205 |
RSA 541-A:16,
I(b)(2), RSA 541-A:30-a, I |
Sw 206 |
RSA 541-A:16,
I(b)(2), RSA 541-A:30-a, I; RSA 284:13, I |
Sw 207 |
RSA 541-A:16,
I(b)(2), RSA 541-A:30-a, I |
Sw 208 |
RSA 541-A:16,
I(b)(2), RSA 541-A:30-a, I |
Sw 209 |
RSA 541-A:16,
I(b)(2), RSA 541-A:30-a, I |
Sw 210 |
RSA 541-A:16,
I(b)(2), RSA 541-A:30-a, I |
Sw 211 |
RSA 541-A:16,
I(b)(2), RSA 541-A:30-a, I |
Sw 212 |
RSA 541-A:16,
I(b)(2), RSA 541-A:30-a, I |
Sw 213 |
RSA 541-A:16,
I(b)(2), RSA 541-A:30-a, I |
Sw 214 |
RSA 541-A:16,
I(b)(2), RSA 541-A:30-a, I |
Sw 215 |
RSA 541-A:16,
I(b)(2), RSA 541-A:30-a, I |
Sw 216 |
RSA 541-A:16,
I(b)(2), RSA 541-A:30-a, I; RSA 284:13 |
Sw 217 |
RSA 541-A:16,
I(b)(2), RSA 541-A:30-a, I |
Sw 218 |
RSA 541-A:16,
I(b)(2), RSA 541-A:30-a, I |
Sw 219 |
RSA 541-A:16,
I(b)(3) |
Sw 220 |
RSA 541-A:16,
I(c) |
Sw 221 |
RSA 541-A:16,
I(d) |