Section 205.10  Purpose

 

The purpose of this Part is to provide procedures to govern the conduct of the License Hearing  provided for in Section 20 of the Illinois Racing Act (the Racing Act) [230 ILCS 5/20], supplemental to those provided for in Part 204.  This Part implements the provisions of the Racing Act and the Illinois Administrative Procedure Act (the IAPA) [5 ILCS 100], and should be construed to give effect to, and not to limit, the rights conferred by those Acts.  This Part expressly adopts the applicable provisions of the IAPA, including the IAPA's provisions applicable in contested cases such as the License Hearing.  (See Section 10-65 of the IAPA and the Open Meetings Act [5 ILCS 120].)

 

(Source:  Amended at 29 Ill. Reg. 20033, effective November 28, 2005)

 

Section 205.20  Notice

 

a)         At least 30 days prior to the application deadline, the Board shall provide all current organization licensees, and any other person who has requested an application for an organization license to conduct a horse race meeting, with notice of the License Hearing, including:

 

1)         a statement of the time, place and nature of the License Hearing (e.g., whether the award of host dates or the License Hearing will determine the allocation of racing dates in a single year or in multiple years) and the time, place and date of the pre-hearing conference. A host date is a day awarded to an organization licensee in which the licensee controls the simulcast signals and its own live racing program;

 

2)         a statement of the legal authority and jurisdiction under which the License Hearing is to be held;

 

3)         a reference to the particular Sections of the substantive and procedural statutes involved;

 

4)         a short and plain statement of the matters at issue and the consequences of a failure to participate in the License Hearing (see 230 ILCS 5/20);

 

5)         the name and address of any hearing officer the Board may appoint, or a statement that the members of the Board themselves intend to preside as hearing officers at the License Hearing; and

 

6)         the time, place and date of the pre-hearing conference.

 

b)         The notice of the License Hearing shall be made public and shall also be posted in accordance with the requirements of Section 2.02 of the Open Meetings Act [5 ILCS 120/2.02] governing the posting of agendas for meetings of public bodies.

 

(Source:  Amended at 29 Ill. Reg. 20033, effective November 28, 2005)

 

Section 205.30  Filing of Applications

 

The Board shall provide to all current organization licensees, no later than July 1, an application to conduct a horse race meeting.  Applications for an organization license to conduct a horse racing meeting in Illinois pursuant to the Racing Act shall be filed at the office of the Board no later than 5:00 p.m. on July 31 (or if July 31 is not a business day, the next business day thereafter) of the year prior to the year in which the meet is sought.  Each applicant shall file with the Board 15 copies of the application and all exhibits referred to in the application.

 

(Source:  Amended at 29 Ill. Reg. 20033, effective November 28, 2005)

 

Section 205.40  Use of Applications

 

Applications shall state with particularity the type of license and dates sought to be awarded.  Requests for licenses and dates may be made in the alternative.  Applications are admissible into evidence as proof of what an applicant seeks or as admissions of parties, according to the rules of evidence.

 

Section 205.50  Filing of Evidence Supporting Applications (Repealed)

 

 (Source:  Repealed at 29 Ill. Reg. 20033, effective November 28, 2005)

 

Section 205.60  Parties

 

Parties to the License Hearing consist of persons who have filed an application for an organization license.  No other person, other than outside counsel for the parties, a witness or witnesses called by the parties pursuant to the rules of evidence, may participate in the License Hearing before the Racing Board or its duly appointed hearing officer, except that this provision shall not be construed to prohibit the Board and/or the hearing officer from taking official notice of staff data or memoranda pursuant to Section 10-40 of the Illinois Administrative Procedure Act [5 ILCS 100/10-40].  The Board shall be permitted to call lay and/or expert witnesses.  This Section shall not prohibit representatives of any organization representing the largest number of horse owners, trainers, drivers or jockeys that has negotiated a contract with the organization licensee from providing testimonial or other evidence of its membership's position on any application at the invitation of the Board or other party, subject to Sections 205.95 and 205.100 evidentiary rules and cross examination.  Permission to an organization to provide testimony under this Section shall not make that organization a party or confer any of the rights of a party on that organization. In addition to the parties named in this Section, the Board may request that the Attorney General of the State of Illinois participate as a party to the License Hearing (see 230 ILCS 5/16(e)).

 

(Source:  Amended at 29 Ill. Reg. 20033, effective November 28, 2005)

 

Section 205.70  Service of Application and Evidence Supporting Application (Repealed)

 

(Source:  Repealed at 29 Ill. Reg. 20033, effective November 28, 2005)

 

Section 205.75  Discovery

 

a)          The Board shall notify all parties of the name and address of all applicants for an organization license.

 

b)         Each applicant shall serve on all other applicants of the same breed and the Board, on such date and time as ordered by the Board:

 

1)         The name and address of any witness who may be reasonably expected to testify on behalf of the party, together with a brief summary of the subject matter of each witness' anticipated testimony;

 

2)         All documents, reports, summaries, tables, comparisons (i.e., attendance figures, handle comparisons, purse earnings and purse distributions), and all other materials, including videotape, DVD, film, and/or computer presentations the party intends to introduce into evidence at the hearing.  The party's burden of production includes those documents the applicant reasonably expects to introduce into evidence; and 

 

3)         A complete copy of its application and supporting documents.

 

c)         Parties shall be notified, either before the hearing or by reference in preliminary reports or otherwise, of any material to be noticed and/or relied upon by the Board, including any staff memoranda, staff reports, charts or data.

 

d)         Witnesses not identified and documents and other materials that are not timely produced may be excluded from the hearing as specified in subsection (b).

 

e)         No oral or written discovery beyond that specified in this Section shall be permitted.

 

(Source:  Added at 29 Ill. Reg. 20033, effective November 28, 2005)

 

Section 205.80  Pre-Hearing Conference

 

a)         Upon written notice by the Board or its duly appointed hearing officer, the parties may be directed to appear at a specified date, time and place for a conference for the purposes of considering an agreement among applicants as to the award of racing dates (see 230 ILCS 5/21(b)).

 

b)         If an agreed dates schedule is not reached, the Board or the hearing officer shall enter an order addressing preliminary matters, including but not limited to:

 

1)         stipulation to matters not in dispute;

 

2)         procedural matters at the hearing;

 

3)         order of witnesses;

 

4)         deadline for mutual exchange between applicants of the same breed of prepared testimony or exhibits and applications;

 

5)         scheduling of pre-hearing motions; and

 

6)         any other matters to facilitate expeditious conduct of the License Hearing and disposition of the proceeding.

 

c)         The Board or hearing officer shall rule on pre-hearing motions in writing prior to the License Hearing.

 

d)        The pre-hearing conference may be adjourned and continued to a date selected by the Board or the hearing officer prior to the License Hearing.

 

e)         Pre-hearing conferences under this Section shall be open to the public, notice shall be given in the same manner as notice is given of meetings of the Board, and a transcript shall be kept and shall become a part of the record in the proceeding.

 

f)         Under no circumstance shall offers of settlement, offers of agreement, concessions or statements made at the pre-hearing conference be admissible in evidence for any purpose at the License Hearing.

 

(Source:  Amended at 29 Ill. Reg. 20033, effective November 28, 2005)

 

Section 205.85  Hearing Officer

 

The Chairman of the Board may preside over any hearings or pre-hearing conference in accordance with this Part, or the Chairman may appoint a Board member or an Illinois licensed attorney as a hearing officer to conduct any hearings or pre-hearing conference in accordance with this Part.  The hearing officer shall perform such duties as provided in 230 ILCS 5/14(a) and 14a.

 

(Source:  Added at 29 Ill. Reg. 20033, effective November 28, 2005)

 

Section 205.90  Filing and Service of Motions

 

Any party filing a motion shall serve 15 copies of the motion on the Board and shall also serve a copy on each of the other parties.  Service shall be by messenger, overnight delivery, facsimile or in person.  Applicants applying for organization licenses at the same race track may file motions to consolidate parties for the purpose of consolidating evidence and testimony.  The deadline for filing motions shall be determined by the Board at the pre-hearing conference.

 

(Source:  Amended at 29 Ill. Reg. 20033, effective November 28, 2005)

 

Section 205.95  Evidence

 

a)         Evidence shall be received by way of direct and cross examination of witnesses and introduction of documentary evidence subject to the rules of evidence.

 

b)         The Chairman of the Board, or a Board member appointed by the Chairman, who is a licensed Illinois attorney, shall decide all evidentiary objections and questions of evidence raised at the License Hearing, subject to de novo review by the Board.  The Chairman or Board member appointed to rule on matters of evidence may seek the advice of the other members of the Board on evidentiary issues at his/her discretion.  Any evidence ruled inadmissible may be submitted as an offer of proof.

 

c)         The rules of evidence shall be applied liberally.  Any relevant evidence may be admitted and shall be sufficient in itself to support a finding if it is the sort of evidence on which reasonably prudent persons are accustomed to rely in the conduct of serious affairs.  The Board or its appointed hearing officer shall exclude immaterial, irrelevant and repetitious evidence.

 

d)        The rules of evidence shall apply only to the parties.  The Board may rely on technical and/or scientific facts within the Board's specialized knowledge.  Nothing in this subsection shall be deemed to diminish the ability of the Board to enter documentary or testimonial evidence in its own discretion.

 

(Source:  Added at 29 Ill. Reg. 20033, effective November 28, 2005)

 

Section 205.100  License Hearing

 

a)         The License Hearing shall commence on the date fixed by the Board during the last 15 days of September of the year prior to the applicable racing dates.

 

b)         The Board shall conduct, and the Chairman or the duly appointed hearing officer shall preside over, the License Hearing.  Any testimony shall be given under oath or affirmation.

 

c)         Cases shall be presented by category of breed.  Applicants for one breed may proceed in alphabetical order, or reverse alphabetical order, as determined by the Chairman.

 

d)         Board members may question any applicant or witness during the course of or following testimony. 

 

e)          Each party may conduct adverse examination of witnesses according to the rules of evidence applicable for cross and redirect examination in the Circuit Court of Cook County, Illinois for non-jury trials and as provided in Section 10-40 of the IAPA [5 ILCS 10/10-40].

 

f)         At this meeting, the Board will announce the award of racing dates, live racing schedule and designation of host track to the applicants and its approval or disapproval of each application. [230 ILCS 5/20(e)]

 

                       

g)         The Chairman or hearing officer may limit the time allotted to parties  for both direct and cross examination, if the examination of witnesses would unduly obstruct the award of an organization license within the time allotted in Section 20(e) of the Act [230 ILCS 5/20(e)].

 

(Source:  Amended at 29 Ill. Reg. 20033, effective November 28, 2005)

 

Section 205.110  Disqualification of Hearing Officer

 

a)         Whenever any party believes a hearing officer or any Racing Board member should be disqualified, for bias, prejudice, conflict of interest or any other reason, from conducting, or continuing to conduct, a License Hearing, that party may file with the Racing Board a motion to disqualify the hearing officer or Board member, setting forth the alleged grounds for disqualification.  A party shall file such a motion promptly upon learning of any grounds for disqualification.  The motion shall be filed as provided in Section 205.90.  The Board shall enter a written ruling on the motion within 3 days after the date on which the motion is filed.

 

b)         A hearing officer or Board member may recuse himself or herself from presiding at a License Hearing.

 

(Source:  Amended at 29 Ill. Reg. 20033, effective November 28, 2005)

 

Section 205.120  Ex Parte Communications

 

a)          After service of the notice of the License Hearing on the parties, and until such time a formal written Dates Order is executed by the Board, any communication, directly or indirectly, in connection with any matter regarding the award of racing dates, between any Board member, Racing Board employee or hearing officer, with any party or representative of any party to the License Hearing shall be considered ex parte pursuant to Section 10-60(a) of the IAPA.

                                   

b)         Pursuant to Section 20(e-10) of the Act [230 ILCS 5/20(e-10)], ex parte communication shall be allowed provided that such communications are in the best interest of racing.  The phrase "best interest of racing" includes, among other factors, the quality and integrity of racing, public interest, State revenue and the availability of wagering opportunities.  

 

c)         Pursuant to Section 10-60(c) of the IAPA, any ex parte communication received by any Board employee, Board member or hearing officer shall be made a part of the record of the License Hearing, including all written communications, all written responses to the communications and a memorandum stating the substance of all oral communications and all responses made, and the identity of each person from whom the ex parte communication was received.

 

d)         Communications between Board employee and the applicants pursuant to Section 21(a) of the Horse Racing Act [230 ILCS 5/21(a)] regarding the correction of deficiencies of the application within the prescribed 21 day time period after submission of the application shall not be considered ex parte communication under this Section.

 

e)         Communications regarding matters of procedure and practice, such as format of applications, number of copies required, manner of service and status of proceedings are not considered ex parte communication under this Section.

 

f)         Ex parte communications pursuant to this Section shall not be exempt from the provisions of the Open Meetings Act [5 ILCS 120].

 

(Source:  Amended at 29 Ill. Reg. 20033, effective November 28, 2005)

 

Section 205.125  Record

 

a)         The transcript made in connection with the hearing shall constitute the official transcript.

 

b)         The record in an administrative hearing shall include:

 

1)         Applications, amended applications and exhibits;

 

2)         All notices, motions, briefs and rulings;

 

3)         Evidence received;

 

4)         A statement of matters officially noticed;

 

5)         Past annual reports;

 

6)         Offers of proof, objections and rulings;

 

7)         Official transcript;

 

8)         Report of Findings of Fact by the hearing officer, if the License Hearing is conducted by a hearing officer; and

 

9)         Ex parte communications pursuant to Section 205.120.

 

c)         The complete record of the License Hearing shall be submitted to the Board.  If the decision of the Board is unanimous, the Chairman of the Board, or a member of the Board appointed by the Chairman, shall draft the final Dates Order.  If the decision of the Board is split, the majority shall draft the Board's final Dates Order.  The majority opinion shall be submitted to all Board members who voted with the minority, and the minority Board members may draft a minority opinion.  Any and all minority opinions shall be attached to the final Dates Order and made a part of the record.  A formal written Dates Order shall be executed by the Board no later than October 15 of the year prior to the racing schedule.

 

(Source:  Added at 29 Ill. Reg. 20033, effective November 28, 2005)

 

Section 205.130  Incorporation of Part 204

 

Except as stated herein, or as inconsistent with this Part, the provisions of Sections 204.40 through 204.110, 204.130, and 204.140 of Title 11, Subtitle B, Chapter I of the Illinois Administrative Code shall apply to Licensing Hearings.

 

Section 205.140  Notice to and Acceptance by Applicants

 

a)         The Board shall, within 5 days after the date its formal order is executed:

 

1)         Send each applicant a copy of that executed order awarding racing dates by certified mail, return receipt requested, addressed to the applicant at the address stated in its application;

 

2)         Issue letters of acceptance to successful applicants for racing dates no later than 5 days after the date of execution of its formal order.  Each applicant shall submit signed acceptance letters to the Board by certified mail, return receipt requested, or by personal delivery at the central office of the Board.  Applicants shall furnish signed acceptance letters, together with required fees, to the Board no later than 10 days after receipt of the Board's executed Dates Order.  Acceptance letters, mailed or delivered, shall be received at the central office of the Board on or before the expiration of the 10 day limit.  Acceptance of dates pursuant to this Section shall not abridge an applicant's right to appeal.

 

b)         In the event an applicant does not submit a signed acceptance letter and/or the required fees in the manner and within the 10 day limit stated in subsection (a)(2) of this Section, the Board may conduct an emergency hearing, as provided in Section 205.150, and may re-award racing dates previously awarded to the applicant.  The Board may exercise its discretion not to re-award dates when to do so would not be in the best interest of the sport, industry and/or State of Illinois (instances include, but are not limited to, conflicting meets, failure to maximize State revenue, shortage of horses, inadequate facilities or officials, lack of character or financial fitness of the applicant and inadequate promotional budget).

 

(Source:  Amended at 29 Ill. Reg. 20033, effective November 28, 2005)

 

Section 205.150  Emergency Hearing to Re-award Dates

 

a)         Pursuant to Section 20(f-5) of the Act [230 ILCS 5/20(f-5)], the Board may conduct an emergency hearing and may re-award dates if acceptance is not received from the applicant in the 10 days prescribed by the Act or a license to conduct a race meeting has been suspended or revoked.

 

b)         The Board shall serve notice personally or by certified or registered mail to all interested parties of the date, time and place of the emergency hearing and dates for filing applications and supporting documentation for the racing dates in question.

 

c)         A re-award of racing dates shall be based on the criteria contained in Section 20(e-5) of the Act [230 ILCS 5/20(e-5)].

 

d)         Article 10 of the Illinois Administrative Procedure Act shall not apply to the conducting of an emergency hearing for the reallocation of racing dates pursuant to this Section (see 230 ILCS 5/20(f-5)).

 

(Source:  Amended at 29 Ill. Reg. 20033, effective November 28, 2005)