The rules contained in this section and the divisions thereunder shall govern all hearings requested upon issuance of a notice of denial of an application for licensure. Hearings under this section and the divisions thereunder are de novo proceedings for the creation of a record regarding an applicant’s suitability for licensure. A hearing under this section and the divisions thereunder is not an appeal of the Liquor Commissioner’s action.
(A) Requests for hearing.
(1) If the Liquor Commissioner finds that an applicant is not suitable for licensure, the Liquor Commissioner shall issue the applicant a notice of denial.
(2) The Liquor Commissioner shall serve notice on the applicant by personal service or U.S. certified mail and U.S. mail to the last known address of the applicant. Service is complete four days after mailing.
(3) Should an applicant wish to contest the action the Liquor Commissioner has taken regarding his or her application, the applicant must submit a request for hearing to the Liquor Commissioner.
(4) All requests for hearing shall be in writing and shall include an original and one copy. The request shall contain the following:
(a) The name, current address and current telephone number of the applicant;
(b) Detailed reasons why and the facts upon which the applicant will rely to show that the applicant is suitable for licensure, including specific responses to any facts enumerated in the Illinois Gaming Board’s notice of denial;
(c) A signature of the applicant;
(d) A verification of the request for hearing in the following form:
“The undersigned certifies that the statements set forth in this request are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he/she verily believes the same to be true.”
(e) The request must be notarized.
(f) A deposit of $500 to secure the attendance of a stenographer at the hearing to record the proceedings. Following the conclusion of the hearing, the city shall either refund to the applicant any portion of the deposit that exceeds the cost of the stenographer to record the proceedings or shall invoice the applicant for the amount of the cost of the stenographer to record the proceedings that exceeds the deposit.
(5) A request for hearing must be made within ten days after receipt of notice of denial from the Liquor Commissioner. A request shall be deemed filed on the date on which it is postmarked.
(6) If a request for hearing is not filed within ten days after the receipt of notice from the Liquor Commissioner, then the notice of denial becomes the final order of the Liquor Commissioner denying the applicant’s license application.
(7) A request for hearing shall be deemed granted unless denied. The Liquor Commissioner may deny a request for hearing if the statement of the reasons and facts that it contains does not establish a prima facie case or fails to comply with any of the other requirements of this section. The Liquor Commissioner’s denial of a request for hearing is a final decision, and the denial of licensure becomes a final order on the date the Liquor Commissioner denies the request for hearing.
(8) A request for hearing may not be withdrawn or voluntarily dismissed if the Liquor Commissioner determines that withdrawal or voluntary dismissal is not in the best interests of the public and the video gaming industry in the city. If the Liquor Commissioner allows an applicant to withdraw a hearing request, the initial notice of denial becomes a final Liquor Commissioner order on the date leave to withdraw is granted. If the applicant does not prosecute his or her case after 21 days, the Liquor Commissioner may enter a default judgment against the applicant. Failure to prosecute shall result in entry of default judgment against the applicant.
(9) The applicant may submit a request for hearing by:
(a) Personal delivery;
(b) Certified mail, postage prepaid; or
(c) Overnight express mail, postage prepaid.
(10) All requests for hearing must be submitted to the Liquor Commissioner at the city’s offices.
(11) If a request is granted, the Liquor Commissioner shall conduct a hearing.
(B) Appearances.
(1) All applicants may be represented by an attorney who is licensed to practice in Illinois. All attorneys who appear in a representative capacity on behalf of an applicant must file a written appearance setting forth:
(a) The name, address and telephone number of the attorney;
(b) The name and address of the applicant the attorney represents; and
(c) An affirmative statement that the attorney is licensed to practice in Illinois.
(2) Only individual attorneys may file appearances. Any applicant’s attorney who has not filed an appearance may not address the Liquor Commissioner or sign pleadings.
(3) An attorney may only withdraw his or her appearance upon written notice to the Liquor Commissioner.
(4) An individual may appear on his or her own behalf.
(5) A partner may appear on behalf of a partnership.
(6) A corporation and a limited liability company must be represented by an attorney.
(7) The city will be represented by its corporation counsel.
(8) The Liquor Commissioner may, but shall not be required to, appoint an attorney admitted to the practice of law by, and in good standing with, the Illinois Supreme Court to advise the Liquor Commissioner on conducting the hearing in accordance with this section.
(C) Discovery.
(1) Upon written request served on the opposing party, a party shall be entitled to:
(a) The name and address of any witness who may be reasonably expected to testify on behalf of the opposing party;
(b) All documents or other materials in the possession or control of the opposing party that the opposing party reasonably expects will be necessary to introduce into evidence. The applicant’s burden of production includes those documents the applicant reasonably expects to introduce into evidence either in his, her or its case-in-chief or in rebuttal. Rebuttal documents, to the extent that they are not immediately identifiable, shall be tendered to the city unless additional time is granted by the Liquor Commissioner.
(2) Discovery may be obtained only through written requests to produce witness lists, documents or other materials, as specified in division (C)(1) above. Witnesses and documents responsive to a proper request for production that were not produced shall be excluded from the hearing and additional sanctions or penalties may be imposed.
(D) Subpoenas.
(1) Subpoenas for the attendance of witnesses at hearing may be served by a party only upon application to the Liquor Commissioner.
(a) The applicant must show good cause, state the testimony to be elicited from a witness, state why the evidence to which the testimony relates cannot otherwise be obtained, and state the reasons why the testimony is necessary and relevant.
(b) An agent or employee of the city may not be required by the applicant to appear except under the procedures provided in this section.
(2) The Liquor Commissioner may issue subpoenas for the attendance of witnesses or subpoenas duces tecum for the production of relevant documents, records or other material at a proceeding conducted under this section.
(E) Proceedings.
(1) The burden of proof is at all times on the applicant. The applicant shall have the affirmative responsibility of establishing by clear and convincing evidence that the applicant is suitable for licensing or that enforcement of a security interest is warranted.
(2) All testimony shall be given under oath or affirmation.
(3) All testimony and oral proceedings shall be recorded stenographically or by such other means as to adequately ensure the preservation of such testimony or oral proceedings and shall be transcribed on request of any party. The stenographer or such other means as to adequately ensure the preservation of such testimony or oral proceedings shall be arranged by the city. The cost of the stenographer or such other means as to adequately ensure the preservation of such testimony or oral proceedings shall be paid by the applicant. The transcript shall be paid for by the requesting party.
(4) Both parties may present opening statements. The applicant shall proceed first, followed by the city.
(5) The applicant shall then present his, her or its case-in-chief.
(6) Upon the conclusion of the applicant’s case-in chief, the city may move for a directed finding. The Liquor Commissioner may hear arguments on the motion or may grant, deny or reserve decision, without argument.
(7) If no motion for directed finding is made, or if the motion is denied or decision reserved, the city may present its case.
(8) Upon the conclusion of the city’s case, the applicant may present evidence in rebuttal.
(9) Each party may conduct cross-examination of adverse witnesses.
(10) Both parties may present closing arguments. The applicant shall proceed first, followed by the city, and thereafter the applicant may present rebuttal argument.
(F) Evidence.
(1) The hearing need not be conducted according to the technical rules of evidence. 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 responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statute that might make improper the admission of evidence over objection in a civil action. Hearsay may support a finding of the Liquor Commissioner if it is the best evidence available, has sufficient indicia of trustworthiness and reliability and is of the type reasonably and customarily relied on in the video gaming industry.
(a) If relevant and not precluded from the hearing by § 6(d) of the Riverboat Gambling Act relating to all licensed applicants, official Illinois Gaming Board records or certified copies of the records shall be admissible into evidence;
(b) Official Illinois Gaming Board records are documents either prepared by or provided to the Illinois Gaming Board for the purpose of conducting its regular business;
(c) If relevant and not precluded from the hearing by a statute, regulation or ordinance, official city records or certified copies of the records shall be admissible into evidence;
(d) Official city records are documents either prepared by or provided to the city for the purpose of conducting its regular business;
(e) An applicant must afford the city an opportunity to investigate and verify information that the applicant intends to offer in support of his or her case. The applicant shall not be permitted to introduce into evidence any information that the city has not been afforded the opportunity to investigate and verify.
(2) The parties should, to the fullest extent possible, stipulate to all matters that are not or fairly should not be in dispute.
(3) The parties may make objections to evidentiary offers. When an objection is made, the Liquor Commissioner may receive the disputed evidence subject to a ruling at a later time.
(4) The Liquor Commissioner may take official notice of any generally accepted information or technical or scientific matter within the field of video gaming, and any other fact that may be judicially noticed by courts of this state. The parties shall be informed of any information, matter or facts so noticed, including any city staff memoranda or data, and shall be given reasonable opportunity to refute that information.
(G) Prohibition on ex parte communication. Once a hearing is commenced, no applicant or its representative shall communicate directly or indirectly with the Liquor Commissioner regarding any pending denial, except upon notice to and opportunity for all parties to participate.
(H) Sanctions and penalties.
(1) The Liquor Commissioner may impose sanctions and penalties if the Liquor Commissioner finds that a party has acted in bad faith, for the purpose of delay, or has otherwise abused the hearing process. Sanctions and penalties include, but are not limited to, default judgment or directed finding on one or more issues.
(2) If an applicant fails to testify on his or her own behalf with respect to any question propounded to him or her, the Liquor Commissioner may infer that such testimony or answer would have been adverse to the petitioner’s case.
(3) Failure of an applicant to appear at a hearing or scheduled proceeding shall constitute an admission of all matters and facts contained in the notice of denial. In such cases the Liquor Commissioner may take action based upon that admission or upon any other evidence, including affidavits, without any further notice to the applicant.
(I) Hearing record and order.
(1) The record shall consist of the following:
(a) The notice of denial, the request for hearing and all motions and rulings;
(b) All evidence received;
(c) A statement of matters officially noticed; and
(d) Offers of proof, objections and rulings.
(2) Upon conclusion of the hearing the Liquor Commissioner shall review the entire record and shall render a written order including written findings of fact and conclusions of law on which the Liquor Commissioner's decision is based. The findings of fact shall be based exclusively on the evidence and on matters officially noticed.
(3) Copies of the Liquor Commissioner’s final order shall be served on the Applicant by personal delivery, certified mail or overnight express mail to applicant’s last known address.
(4) The Liquor Commissioner’s final order shall become effective upon personal delivery to the applicant or upon posting by certified or overnight express mail to applicant’s last known address.
(J) Status of applicant for licensure upon filing request for hearing. An applicant who has been denied a license and who has requested a hearing under this section shall be considered an applicant for purposes of compliance with applicable statutory provisions and this chapter until final resolution of the request for hearing.
(Ord. 12-22, passed 4-24-12)