0001 | HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR | 0002 | HOUSE BUSINESS AND INDUSTRY COMMITTEE SUBSTITUTE FOR | 0003 | HOUSE BILL 399 | 0004 | 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0005 | | 0006 | | 0007 | | 0008 | | 0009 | | 0010 | | 0011 | | 0012 | AN ACT | 0013 | RELATING TO GAMING; ENACTING THE INDIAN GAMING COMPACT; ENACTING | 0014 | A REVENUE-SHARING AGREEMENT TO PROVIDE FOR REVENUE SHARING | 0015 | BETWEEN THE STATE AND AN INDIAN NATION, TRIBE OR PUEBLO | 0016 | CONDUCTING GAMING PURSUANT TO THE COMPACT; ENACTING THE GAMING | 0017 | CONTROL ACT TO PERMIT CERTAIN NONTRIBAL GAMING; PROVIDING | 0018 | PENALTIES; IMPOSING A GAMING TAX AND FEES; AMENDING AND ENACTING | 0019 | SECTIONS OF THE NMSA 1978; MAKING APPROPRIATIONS; DECLARING AN | 0020 | EMERGENCY. | 0021 | | 0022 | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0023 | Section 1. [[+NEW MATERIAL+]] INDIAN GAMING COMPACT ENTERED | 0024 | INTO.--The Indian Gaming Compact is enacted into law and entered | 0025 | into with all Indian nations, tribes and pueblos in the state | 0001 | legally joining in it by enactment of a resolution pursuant to | 0002 | the requirements of applicable tribal and federal law. The | 0003 | compact is enacted and entered into in the form substantially as | 0004 | follows: | 0005 | "INDIAN GAMING COMPACT | 0006 | INTRODUCTION | 0007 | The State is a sovereign State of the United States of | 0008 | America, having been admitted to the Union pursuant to the Act | 0009 | of June 20, 1910, 36 Statutes at Large 557, Chapter 310, and is | 0010 | authorized by its constitution to enter into contracts and | 0011 | agreements, including this Compact, with the Tribe; | 0012 | The Tribe is a sovereign federally recognized Indian tribe | 0013 | and its governing body has authorized the officials of the Tribe | 0014 | to enter into contracts and agreements of every description, | 0015 | including this Compact, with the State; | 0016 | The Congress of the United States has enacted the Indian | 0017 | Gaming Regulatory Act of 1988, 25 U.S.C. 2701-2721 | 0018 | (hereinafter "IGRA"), which permits Indian tribes to conduct | 0019 | Class III Gaming on Indian Lands pursuant to a tribal-state | 0020 | compact entered into for that purpose; | 0021 | The Tribe owns or controls Indian Lands and by Ordinance | 0022 | has adopted rules and regulations governing Class III games | 0023 | played and related activities at any Gaming Facility; | 0024 | The State and the Tribe, in recognition of the sovereign | 0025 | rights of each party and in a spirit of cooperation to promote | - 2 - 0001 | the best interests of the citizens of the State and the members | 0002 | of the Tribe, have engaged in good faith negotiations | 0003 | recognizing and respecting the interests of each party and have | 0004 | agreed to this Compact. | 0005 | NOW, THEREFORE, the State and the Tribe agree as follows: | 0006 | TERMS AND CONDITIONS | 0007 | SECTION 1. Purpose and Objectives. | 0008 | The purpose and objectives of the State and the Tribe in | 0009 | making this Compact are as follows: | 0010 | A. To evidence the good will and cooperative spirit between | 0011 | the State and the Tribe; | 0012 | B. To continue the development of an effective government- | 0013 | to-government relationship between the State and the Tribe; | 0014 | C. To provide for the regulation of Class III Gaming on | 0015 | Indian Lands as required by the IGRA; | 0016 | D. To fulfill the purpose and intent of the IGRA by | 0017 | providing for tribal gaming as a means of generating tribal | 0018 | revenues, thereby promoting tribal economic development, tribal | 0019 | self-sufficiency, and strong tribal government; | 0020 | E. To provide revenues to fund tribal government operations | 0021 | or programs, to provide for the general welfare of the tribal | 0022 | members and for other purposes allowed under the IGRA; | 0023 | F. To provide for the effective regulation of Class III | 0024 | Gaming in which the Tribe shall have the sole proprietary interest | 0025 | and be the primary beneficiary; and | - 3 - 0001 | G. To address the State's interest in the establishment, by | 0002 | the Tribe, of rules and procedures for ensuring that Class III | 0003 | Gaming is conducted fairly and honestly by the owners, operators, | 0004 | employees and patrons of any Class III Gaming enterprise on Indian | 0005 | Lands. | 0006 | SECTION 2. Definitions. | 0007 | For purposes of this Compact, the following definitions | 0008 | pertain: | 0009 | A. "Class III Gaming" means all forms of gaming as defined | 0010 | in 25 U.S.C. 2703(8), and 25 C.F.R. 502.4. | 0011 | B. "Compact" means this compact between the State and the | 0012 | Tribe. | 0013 | C. "Gaming Enterprise" means the tribal entity created and | 0014 | designated by the Tribe as having authority to conduct Class III | 0015 | Gaming pursuant to this Compact. | 0016 | D. "Gaming Facility" means the buildings or structures in | 0017 | which Class III Gaming is conducted on Indian Lands. | 0018 | E. "Indian Lands" means: | 0019 | 1. all lands within the exterior boundaries of the | 0020 | Tribe's reservation and its confirmed grants from prior sovereigns; | 0021 | or | 0022 | 2. any other lands title to which is either held in | 0023 | trust by the United States for the exclusivebenefit of the Tribe | 0024 | or a member thereof or is held by the Tribe or a member thereof | 0025 | subject to restrictions against alienation imposed by the United | - 4 - 0001 | States, and over which the Tribe exercises jurisdiction and | 0002 | governmental authority except for land located within the | 0003 | boundaries of a municipality having a population of more than two | 0004 | hundred thousand (200,000) persons. | 0005 | F. "Key Employee" means that term as defined in 25 CFR | 0006 | Section 502.14. | 0007 | G. "Management Contract" means a contract within the meaning | 0008 | of 25 U.S.C. 2710(d)(9) and 2711. | 0009 | H. "Management Contractor" means any person or entity that | 0010 | has entered into a Management Contract with the Tribe. | 0011 | I. "Ordinance" means the gaming ordinance and any amendments | 0012 | thereto adopted by the Tribal Council of the Tribe. | 0013 | J. "Primary Management Official" means that term as defined | 0014 | in 25 CFR Section 502.19. | 0015 | K. "State" means the State of New Mexico. | 0016 | L. "State Gaming Representative" means that person | 0017 | designated by the Governor of the State who will be responsible for | 0018 | actions of the State set out in the Compact. The representative | 0019 | will be the single contact with the Tribe and may be relied upon as | 0020 | such by the Tribe. If the State Legislature enacts legislation to | 0021 | establish an agency of the State, such agency may assume the duties | 0022 | of the State Gaming Representative. | 0023 | M. "Tribal Gaming Agency" means the tribal governmental | 0024 | agency which will be identified to the State Gaming Representative | 0025 | as the agency responsible for actions of the Tribe set out in the | - 5 - 0001 | Compact. It will be the single contact with the State and may be | 0002 | relied upon as such by the State. | 0003 | N. "Tribe" means any Indian Tribe or Pueblo located within | 0004 | the State of New Mexico entering into this Compact as provided for | 0005 | herein. | 0006 | SECTION 3. Authorized Class III Gaming. | 0007 | The Tribe may conduct, only on Indian Lands, subject to all | 0008 | of the terms and conditions of this Compact, any or all forms of | 0009 | casino-style gaming, including but not limited to slot machines and | 0010 | other forms of electronic gaming devices; all forms of poker, | 0011 | blackjack and other casino-style card games, both banked and | 0012 | unbanked; roulette; craps; keno; wheel of fortune; pai gow; and | 0013 | other games played in casino settings, and any form of a lottery. | 0014 | Subject to the foregoing, the Tribe shall establish, in its | 0015 | discretion, by tribal law, such limitations as it deems appropriate | 0016 | on the number and type of Class III Gaming conducted, the location | 0017 | of Class III Gaming on Indian Lands, the hours and days of | 0018 | operation, and betting and pot limits, applicable to such gaming. | 0019 | SECTION 4. Regulation of Class III Gaming. | 0020 | A. Tribal Gaming Agency. The Tribal Gaming Agency will | 0021 | assure that the Tribe will: | 0022 | 1. operate all Class III Gaming pursuant to this | 0023 | Compact, tribal law, the IGRA and other applicable | 0024 | Federal law; | 0025 | 2. provide for the physical safety of patrons in any | - 6 - 0001 | Gaming Facility; | 0002 | 3. provide for the physical safety of personnel | 0003 | employed by the gaming enterprise; | 0004 | 4. provide for the physical safeguarding of assets | 0005 | transported to and from the Gaming Facility and | 0006 | cashier's cage department; | 0007 | 5. provide for the protection of the property of the | 0008 | patrons and the gaming enterprise from illegal | 0009 | activity; | 0010 | 6. participate in licensing of primary management | 0011 | officials and key employees of a Class III Gaming | 0012 | enterprise; | 0013 | 7. detain persons who may be involved in illegal acts | 0014 | for the purpose of notifying law enforcement | 0015 | authorities; and | 0016 | 8. record and investigate any and all unusual | 0017 | occurrences related to Class III Gaming within the | 0018 | Gaming Facility. | 0019 | B. Regulations. Without affecting the generality of the | 0020 | foregoing, the Tribe shall adopt laws: | 0021 | 1. prohibiting participation in any Class III Gaming by | 0022 | any person under the age of twenty-one (21); | 0023 | 2. prohibiting the employment of any person as a key | 0024 | employee or primary management official in a | 0025 | position that is directly involved in Class III | - 7 - 0001 | Gaming activities who is under the age of twenty-one | 0002 | (21) or who has not been licensed in accordance with | 0003 | Section 5, herein; | 0004 | 3. requiring the Tribe to take all necessary action to | 0005 | impose on its gaming operation standards and | 0006 | requirements equivalent to or more stringent than | 0007 | those contained in the federal Fair Labor Standards | 0008 | Act of 1938, the federal Occupational Safety and | 0009 | Health Act of 1970, and any other federal laws | 0010 | relating to wages, hours of work and conditions of | 0011 | work, and the regulations issued thereunder; | 0012 | 4. requiring that on any construction project involving | 0013 | any Gaming Facility or related structure that is | 0014 | funded in whole or in part by federal funds, all | 0015 | workers will be paid wages meeting or exceeding the | 0016 | standards established for New Mexico under the | 0017 | federal Davis-Bacon Act; | 0018 | 5. providing to all employees of a gaming establishment | 0019 | employment benefits, including, at a minimum, sick | 0020 | leave, life insurance, paid annual leave, medical | 0021 | and dental insurance as well as providing | 0022 | unemployment insurance and workers' compensation | 0023 | insurance through participation in the state | 0024 | programs offering those benefits; | 0025 | 6. providing a grievance process for an employee in | - 8 - 0001 | cases of disciplinary or punitive action taken | 0002 | against an employee that includes a process for | 0003 | appeals to persons of greater authority than the | 0004 | immediate supervisor of the employee; | 0005 | 7. prohibiting a gaming enterprise from cashing any | 0006 | paycheck or any type of government assistance check, | 0007 | including Social Security, AFDC, pension and other | 0008 | such checks, for any patron; | 0009 | 8. requiring that, if feasible, automatic teller | 0010 | machines on Gaming Facility premises be programmed | 0011 | so that the machines will not accept cards issued by | 0012 | the State to AFDC recipients for access to AFDC | 0013 | benefits; | 0014 | 9. providing that each electronic or electromechanical | 0015 | gaming device in use at the Gaming Facility must pay | 0016 | out a mathematically demonstrable percentage of all | 0017 | amounts wagered, which must not be less than eighty | 0018 | percent (80%); | 0019 | 10. providing that no later than July 1, 1997, all | 0020 | gaming machines on the premises of the Gaming | 0021 | Facility will be connected to a central computerized | 0022 | reporting and auditing system on the Gaming Facility | 0023 | premises, which shall collect on a continual basis | 0024 | the activity of each gaming machine in use at the | 0025 | Gaming Facility, and that such data shall be | - 9 - 0001 | electronically accessible to the State Gaming | 0002 | Representative upon entry of appropriate security | 0003 | codes; | 0004 | 11. enacting provisions that: | 0005 | (a) prohibit an employee of the Gaming Facility | 0006 | from selling, serving, giving or delivering an | 0007 | alcoholic beverage to an intoxicated person or | 0008 | from procuring or aiding in the procurement of | 0009 | any alcoholic beverage for an intoxicated | 0010 | person at the Gaming Facility; | 0011 | (b) require Gaming Facility employees that | 0012 | dispense, sell, serve or deliver alcoholic | 0013 | beverages to attend Alcohol Server Education | 0014 | Classes similar to those classes provided for | 0015 | in the New Mexico Liquor Control Act; and | 0016 | (c) purchase and maintain a liquor liability | 0017 | insurance policy that will provide, at a | 0018 | minimum, personal injury coverage of one | 0019 | million dollars ($1,000,000) per incident and | 0020 | two million dollars ($2,000,000) aggregate per | 0021 | policy year; | 0022 | 12. prohibiting alcoholic beverages from being sold, | 0023 | served, delivered or consumed in that part of a | 0024 | Gaming Facility where gaming is allowed; | 0025 | 13. requiring the gaming enterprise to spend an amount | - 10 - 0001 | that is no less than one-quarter of one percent | 0002 | (.25%) of its net win as that term is defined herein | 0003 | annually to fund or support programs for the | 0004 | treatment and assistance of compulsive gamblers and | 0005 | for the prevention of compulsive gambling; | 0006 | 14. governing any Management Contract regarding its | 0007 | Class III Gaming activity such that it conforms to | 0008 | the requirements of tribal law and the IGRA and the | 0009 | regulations issued thereunder; | 0010 | 15. prohibiting the operation of any Class III Gaming | 0011 | for at least four (4) consecutive hours daily, | 0012 | Mondays through Thursdays (except federal holidays); | 0013 | 16. prohibiting a Tribal Gaming Enterprise and the | 0014 | Tribe from providing, allowing, contracting to | 0015 | provide or arranging to provide alcoholic beverages, | 0016 | food or lodging for no charge or at reduced prices | 0017 | at a Gaming Facility or lodging facility as an | 0018 | incentive or enticement for patrons to game; and | 0019 | 17. prohibiting the Tribe, the Tribal Gaming Agency or a | 0020 | Management Contractor from contributing directly, or | 0021 | through an agent, representative or employee, | 0022 | revenue from a Gaming Enterprise owned by the Tribe, | 0023 | or anything of value acquired with that revenue, to | 0024 | a candidate, political committee or person holding | 0025 | an office elected or to be elected at an election | - 11 - 0001 | covered by the State's Campaign Reporting Act. | 0002 | The Tribal Gaming Agency will provide true copies of all | 0003 | tribal laws and regulations affecting Class III Gaming conducted | 0004 | under the provisions of this Compact to the State Gaming | 0005 | Representative within thirty (30) days after the effective date of | 0006 | this Compact, and will provide true copies of any amendments | 0007 | thereto or additional laws or regulations affecting gaming within | 0008 | thirty (30) days after their enactment (or approval, if any). | 0009 | C. Audit and Financial Statements. The Tribal Gaming Agency | 0010 | shall require all books and records relating to Class III Gaming to | 0011 | be maintained in accordance with generally accepted accounting | 0012 | principles. All such books and records shall be retained for a | 0013 | period of at least six (6) years from the date of creation. Not | 0014 | less than annually, the Tribal Gaming Agency shall require an audit | 0015 | and a certified financial statement covering all financial | 0016 | activities of the gaming enterprise by an independent certified | 0017 | public accountant licensed by the State. The financial statement | 0018 | shall be prepared in accordance with generally accepted accounting | 0019 | principles and shall be submitted to the Tribal Gaming Agency | 0020 | within one hundred twenty (120) days of the close of the Tribe's | 0021 | fiscal year. The Tribe will maintain the following records for not | 0022 | less than six (6) years: | 0023 | 1. revenues, expenses, assets, liabilities and equity | 0024 | for each Gaming Facility; | 0025 | 2. daily cash transactions for each Class III Gaming | - 12 - 0001 | activity at each Gaming Facility, including but not | 0002 | limited to transactions relating to each gaming | 0003 | table bank, game drop box and gaming room bank; | 0004 | 3. all markers, IOUs, returned checks, hold check or | 0005 | other similar credit instruments; | 0006 | 4. individual and statistical game records (except card | 0007 | games) to reflect statistical drop and statistical | 0008 | win; for electronic, computer, or other | 0009 | technologically assisted games, analytic reports | 0010 | which show the total amount of cash wagered and the | 0011 | total amount of prizes won; | 0012 | 5. contracts, correspondence and other transaction | 0013 | documents relating to all vendors and contractors; | 0014 | 6. records of all tribal gaming enforcement activities; | 0015 | 7. audits prepared by or on behalf of the Tribe; and | 0016 | 8. personnel information on all Class III Gaming | 0017 | employees or agents, including rotation sheets, | 0018 | hours worked, employee profiles and background | 0019 | checks. | 0020 | D. Violations. The agents of the Tribal Gaming Agency shall | 0021 | have unrestricted access to the Gaming Facility during all hours of | 0022 | Class III Gaming activity, and shall have immediate and | 0023 | unrestricted access to any and all areas of the Gaming Facility for | 0024 | the purpose of ensuring compliance with the provisions of this | 0025 | Compact and the Ordinance. The agents shall report immediately to | - 13 - 0001 | the Tribal Gaming Agency any suspected violation of this Compact, | 0002 | the Ordinance, or regulations of the Tribal Gaming Agency by the | 0003 | gaming enterprise, Management Contractor, or any person, whether or | 0004 | not associated with Class III Gaming. | 0005 | E. State Gaming Representative. | 0006 | 1. Upon written request by the State to the Tribe, the | 0007 | Tribe will provide information on primary management | 0008 | officials, key employees and suppliers, sufficient | 0009 | to allow the State to conduct its own background | 0010 | investigations, as it may deem necessary, so that it | 0011 | may make an independent determination as to the | 0012 | suitability of such individuals, consistent with the | 0013 | standards set forth in Section 5, hereinafter. The | 0014 | Tribe shall consider any information or | 0015 | recommendations provided to it by the State as to | 0016 | any such person or entity, but the Tribe shall have | 0017 | the final say with respect to the hiring or | 0018 | licensing of any such person or entity. | 0019 | 2. Notwithstanding that the Tribe has the primary | 0020 | responsibility to administer and enforce the | 0021 | regulatory requirements, the State Gaming | 0022 | Representative authorized in writing by the Governor | 0023 | of the State or by legislation duly enacted by the | 0024 | State Legislature shall have the right to inspect a | 0025 | Gaming Facility, Class III Gaming activity, and all | - 14 - 0001 | records relating to Class III Gaming (including | 0002 | those set forth in Section 5, hereinafter) of the | 0003 | Tribe, subject to the following conditions: | 0004 | (a) with respect to public areas of a Gaming | 0005 | Facility, at any time without prior notice | 0006 | during normal business hours; | 0007 | (b) with respect to private areas of a Gaming | 0008 | Facility not accessible to the public, at any | 0009 | time during normal Gaming Facility business | 0010 | hours, immediately after notifying the Tribal | 0011 | Gaming Agency and Gaming Facility of his or her | 0012 | presence on the premises and presenting proper | 0013 | identification, and requesting access to the | 0014 | non-public areas of the Gaming Facility. The | 0015 | Tribe, in its sole discretion, may require an | 0016 | employee of the Gaming Facility or the Tribal | 0017 | Gaming Agency to accompany the State Gaming | 0018 | Representative at all times that the State | 0019 | Gaming Representative is on the premises of a | 0020 | Gaming Facility, but if the Tribe imposes such | 0021 | a requirement, the Tribe shall require such an | 0022 | employee of the Gaming Facility or the Tribal | 0023 | Gaming Agency to be available at all times for | 0024 | such purposes; | 0025 | (c) with respect to inspection and copying of all | - 15 - 0001 | management records relating to Class III | 0002 | Gaming, with forty-eight (48) hours prior | 0003 | written notice, not including weekends. The | 0004 | reasonable costs of copying will be borne by | 0005 | the State; and | 0006 | (d) whenever the State Gaming Representative, or | 0007 | his designee, enters the premises of the Gaming | 0008 | Facility for any such inspection, such | 0009 | Representative, or designee, shall identify | 0010 | himself to security or supervisory personnel of | 0011 | the Gaming Facility. | 0012 | 3. Gaming Enterprise and gaming operations information | 0013 | shall be considered public information and subject | 0014 | to the Inspection of Public Records Act. Trade | 0015 | secrets and proprietary information regarding the | 0016 | gaming enterprise of the Tribe, Class III Gaming | 0017 | conducted by the Tribe, or the operation thereof, | 0018 | shall not be deemed public records as a matter of | 0019 | state law, and shall not be disclosed to any member | 0020 | of the public, without the prior written approval of | 0021 | a duly authorized representative of the Tribe. | 0022 | These prohibitions shall not be construed to | 0023 | prohibit: | 0024 | (a) the furnishing of any information to a law | 0025 | enforcement or regulatory agency of the Federal | - 16 - 0001 | Government; | 0002 | (b) the State from making known the names of | 0003 | persons, firms, or corporations conducting | 0004 | Class III Gaming pursuant to the terms of this | 0005 | Compact, locations at which such activities are | 0006 | conducted, or the dates on which such | 0007 | activities are conducted; | 0008 | (c) publishing the terms of this Compact; | 0009 | (d) disclosing information as necessary to audit, | 0010 | investigate, prosecute or arbitrate violations | 0011 | of this Compact or other applicable laws or to | 0012 | defend suits against the State; and | 0013 | (e) complying with subpoenas or court orders issued | 0014 | by courts of competent jurisdiction. | 0015 | 4. To the fullest extent allowed by State law, the | 0016 | Tribe shall have the right to inspect State records | 0017 | concerning all Class III Gaming conducted by the | 0018 | Tribe; the Tribe shall have the right to copy such | 0019 | State records, with the Tribe bearing the reasonable | 0020 | cost of copying. | 0021 | 5. For every year or part thereof in which the Tribe is | 0022 | actually engaged in Class III Gaming hereunder, the | 0023 | Tribe shall reimburse the State for the actual costs | 0024 | the State incurs in carrying out any functions | 0025 | authorized by the terms of this Compact. All | - 17 - 0001 | calculations of amounts due shall be based upon a | 0002 | fiscal year beginning October 1, and ending | 0003 | September 30, unless the parties select a different | 0004 | fiscal year. Payments due the State shall be made | 0005 | no later than sixty (60) days after the beginning of | 0006 | each fiscal year. Payments due the State during any | 0007 | partial fiscal year this Compact is in effect shall | 0008 | be adjusted to reflect only that portion of the | 0009 | fiscal year. Within sixty (60) days after each | 0010 | fiscal year in which this Compact is in effect, the | 0011 | State shall submit to the Tribe an accounting of | 0012 | actual costs incurred in carrying out any functions | 0013 | authorized by the terms of this Compact. Any amount | 0014 | not expended by the State on said actual costs shall | 0015 | be returned to the Tribe by the State within sixty | 0016 | (60) days after the fiscal year or treated as a | 0017 | prepayment of the Tribe's obligation during the | 0018 | subsequent fiscal year. | 0019 | 6. In the event the State believes that the Tribe is | 0020 | not administering and enforcing the regulatory | 0021 | requirements set forth herein, it may invoke the | 0022 | procedures set forth in Section 7 of this Compact. | 0023 | F. The Tribe shall comply with all applicable provisions of | 0024 | the Bank Secrecy Act, P.L. 91-508, October 26, 1970, 31 U.S.C. | 0025 | 5311-5314, and all reporting requirements of the Internal | - 18 - 0001 | Revenue Service. | 0002 | SECTION 5. Licensing Requirements. | 0003 | A. License Required. The Gaming Facility operator (but not | 0004 | including the Tribe), including its principals, primary management | 0005 | officials, and key employees, the Management Contractor and its | 0006 | principals, primary management officials, and key employees (if the | 0007 | Tribe hires a Management Contractor); any person, corporation, or | 0008 | other entity that has supplied or proposes to supply any gaming | 0009 | device to the Tribe or the Management Contractor; and any person, | 0010 | corporation or other entity providing gaming services within or | 0011 | without a Gaming Facility, shall apply for and receive a license | 0012 | from the Tribal Gaming Agency before participating in any way in | 0013 | the operation or conduct of any Class III Gaming on Indian Lands. | 0014 | B. License Application. Each applicant for a license shall | 0015 | file with the Tribal Gaming Agency a written application in the | 0016 | form prescribed by the Tribal Gaming Agency, along with the | 0017 | applicant's fingerprint card, current photograph and the fee | 0018 | required by the Tribal Gaming Agency. | 0019 | 1. The following Notice ("Privacy Act Notice") shall be | 0020 | placed on the application form for a principal, key | 0021 | employee or a primary management official before | 0022 | that form is filled out by an applicant: | 0023 | "In compliance with the Privacy Act of 1974, the | 0024 | following information is provided: Solicitation | 0025 | of the information on this form is authorized by | - 19 - 0001 | 25 U.S.C. 2701-2721. The purpose of the | 0002 | requested information is to determine the | 0003 | eligibility of individuals to be employed in a | 0004 | gaming enterprise. The information will be used | 0005 | by members and staff of the Tribal Gaming Agency | 0006 | and the National Indian Gaming Commission who | 0007 | have need for the information in the performance | 0008 | of their official duties. The information may | 0009 | be disclosed to appropriate federal, tribal, | 0010 | state, local or foreign law enforcement and | 0011 | regulatory agencies when relevant to civil, | 0012 | criminal or regulatory investigations or | 0013 | prosecutions or when, pursuant to a requirement | 0014 | by a Tribe, or the National Indian Gaming | 0015 | Commission, the information is relevant to the | 0016 | hiring or firing of an employee, the issuance or | 0017 | revocation of a gaming license or investigations | 0018 | of activities while associated with a Tribe or a | 0019 | gaming enterprise. Failure to consent to the | 0020 | disclosures indicated in this Notice will result | 0021 | in a Tribe being unable to hire you in a primary | 0022 | management official or key employee position | 0023 | with a tribal gaming enterprise. | 0024 | The disclosure of your Social Security Number | 0025 | (SSN) is voluntary. However, failure to supply | - 20 - 0001 | an SSN may result in errors in processing your | 0002 | application.". | 0003 | 2. Existing principals, key employees and primary | 0004 | management officials shall be notified, in writing, | 0005 | that they shall either: | 0006 | (a) complete a new application form that contains a | 0007 | Privacy Act Notice; or | 0008 | (b) sign a statement that contains the Privacy Act | 0009 | Notice and consent to the routine uses | 0010 | described in that Notice. | 0011 | 3. The following Notice ("False Statement Notice") | 0012 | shall be placed on the application form for a | 0013 | principal, key employee or a primary management | 0014 | official before that form is filled out by an | 0015 | applicant: | 0016 | "A false statement on any part of your application | 0017 | may be grounds for not hiring you or for firing | 0018 | you after you begin work. Also, you may be | 0019 | punished by fine or imprisonment. See 18 U.S.C. | 0020 | 1001.". | 0021 | 4. The Tribal Gaming Agency shall notify, in writing, | 0022 | existing principals, key employees and primary | 0023 | management officials that they shall either: | 0024 | (a) complete a new application form that contains a | 0025 | False Statement Notice; or | - 21 - 0001 | (b) sign a statement that contains the False | 0002 | Statement Notice. | 0003 | 5. The Tribal Gaming Agency shall request from each | 0004 | applicant, and from each principal, primary | 0005 | management official and key employee of each | 0006 | applicant, all of the following information: | 0007 | (a) full name, other names used (oral or written), | 0008 | Social Security Number(s), birth date, place of | 0009 | birth, citizenship, gender and all languages | 0010 | spoken or written; | 0011 | (b) currently, and for the previous ten (10) years, | 0012 | business and employment positions held, | 0013 | ownership interests in those businesses, | 0014 | business and residence addresses and driver's | 0015 | license numbers; provided, that any applicant | 0016 | who is a principal, primary management | 0017 | official, key employee, Management Contractor, | 0018 | manufacturer or supplier of gaming devices, | 0019 | and/or a person providing gaming services, must | 0020 | provide such information currently, and from | 0021 | the age of eighteen (18); | 0022 | (c) the names and current addresses of at least | 0023 | three (3) personal references, including one | 0024 | (1) personal reference who was acquainted with | 0025 | the applicant during each period of residence | - 22 - 0001 | listed in Paragraph B.5.(b) of this section; | 0002 | (d) current business and residence telephone | 0003 | numbers; | 0004 | (e) a description of any existing and previous | 0005 | business relationships with a Tribe, including | 0006 | ownership interests in those businesses, and a | 0007 | description of any potential or actual conflict | 0008 | of interests between such businesses and a | 0009 | Tribe; | 0010 | (f) a description of any existing and previous | 0011 | business relationships in the gaming industry, | 0012 | including, but not limited to, ownership | 0013 | interests in those businesses; | 0014 | (g) the name and address of any licensing or | 0015 | regulatory agency with which the applicant has | 0016 | filed an application for a license or permit | 0017 | related to gaming, whether or not such license | 0018 | or permit was granted; | 0019 | (h) for each felony for which there is an ongoing | 0020 | prosecution or a conviction, the charge, the | 0021 | date of the charge, the name and address of the | 0022 | court involved and the disposition, if any; | 0023 | (i) for each misdemeanor for which there is an | 0024 | ongoing prosecution or conviction (excluding | 0025 | minor traffic violations), the charge, the date | - 23 - 0001 | of the charge, the name and address of the | 0002 | court involved and the disposition, if any; | 0003 | (j) for each criminal charge (excluding minor | 0004 | traffic charges), whether or not there is a | 0005 | conviction, if such criminal charge is not | 0006 | otherwise listed pursuant to Paragraph B.5.(h) | 0007 | or B.5.(i) of this section, the criminal | 0008 | charge, the date of the charge, the name and | 0009 | address of the court involved and the | 0010 | disposition, if any; | 0011 | (k) the name and address of any licensing or | 0012 | regulatory agency with which the person has | 0013 | filed an application for an occupational | 0014 | license or permit, as an applicant, principal, | 0015 | primary management official or key employee, | 0016 | and whether or not such license or permit was | 0017 | granted; | 0018 | (l) a current photograph; | 0019 | (m) fingerprints, which shall be taken by officers | 0020 | of the tribal police department or by another | 0021 | law enforcement agency and forwarded directly | 0022 | to the tribal police department. Pursuant to a | 0023 | Memorandum of Understanding between the Tribe | 0024 | and the National Indian Gaming Commission | 0025 | ("Commission"), tribal police officers shall | - 24 - 0001 | forward the fingerprint cards directly to the | 0002 | Commission; | 0003 | (n) the fee required by the Tribal Gaming Agency; | 0004 | and | 0005 | (o) any other information the Tribal Gaming Agency | 0006 | deems relevant. | 0007 | C. Background Investigations. | 0008 | 1. Upon receipt of a completed application and required | 0009 | fee for licensing, the Tribal Gaming Agency shall | 0010 | conduct or cause to be conducted a background | 0011 | investigation to ensure that the applicant is | 0012 | qualified for licensing. | 0013 | 2. Background checks of applicants will be performed | 0014 | pursuant to the following procedures: | 0015 | (a) The Tribal Gaming Agency will provide | 0016 | applications to potential applicants upon | 0017 | request and shall collect and maintain the | 0018 | applications. | 0019 | (b) Pursuant to a Memorandum of Understanding | 0020 | between the Tribe and the Commission, tribal | 0021 | police officers will collect fingerprints from | 0022 | all applicants and forward the fingerprint | 0023 | cards directly to the Commission. The | 0024 | Commission will obtain a criminal history | 0025 | record from the Federal Bureau of Investigation | - 25 - 0001 | on each applicant and forward such information | 0002 | to the Tribal Gaming Agency. | 0003 | (c) The Tribal Gaming Agency shall investigate the | 0004 | information provided in the applications. This | 0005 | investigation shall include: | 0006 | (1) contacting persons or entities identified in | 0007 | the application and verifying by written or | 0008 | oral communication that the information | 0009 | contained in the application is accurate; | 0010 | (2) interviewing a sufficient number of | 0011 | knowledgeable people, such as former | 0012 | employers, partners, business associates, | 0013 | and others referred to in the application, | 0014 | to provide a basis for the Tribal Gaming | 0015 | Agency to make a determination concerning | 0016 | whether the applicant meets applicable | 0017 | eligibility requirements; | 0018 | (3) reviewing relevant financial records of the | 0019 | applicant for the three (3) years preceding | 0020 | the application; and | 0021 | (4) contacting any state, federal or other | 0022 | government agency that is referred to in the | 0023 | application. | 0024 | (d) The Tribal Gaming Agency shall document any | 0025 | information it obtains that calls into question | - 26 - 0001 | whether the applicant would meet the eligibility | 0002 | requirements under the Ordinance. The Tribal | 0003 | Gaming Agency shall then document in detail the | 0004 | disposition of these problem areas, indicating | 0005 | the follow-up investigations performed on the | 0006 | problem areas and the result of such | 0007 | investigations. | 0008 | (e) The Tribal Gaming Agency will review the results | 0009 | of the investigation. This review will include a | 0010 | determination as to the scope of the | 0011 | investigation and whether sufficient information | 0012 | was obtained and verified. If such information | 0013 | is found not sufficient, the Tribal Gaming Agency | 0014 | will perform additional investigations. | 0015 | (f) Once the investigation is complete, the Tribal | 0016 | Gaming Agency will decide whether the applicant | 0017 | meets the eligibility criteria under the | 0018 | Ordinance. | 0019 | 3. In conducting a background investigation, the Tribal | 0020 | Gaming Agency and its agents shall keep confidential | 0021 | the identity of each person interviewed in the course | 0022 | of the investigation. | 0023 | 4. Within twenty (20) days of the receipt of a completed | 0024 | application for licensing, and upon request of an | 0025 | applicant, the Tribal Gaming Agency may issue a | - 27 - 0001 | temporary license to the applicant, unless the | 0002 | background investigation undertaken discloses that the | 0003 | applicant has a criminal history, or unless other | 0004 | grounds sufficient to disqualify the applicant are | 0005 | apparent on the face of the application. The | 0006 | temporary license shall become void and be of no | 0007 | effect upon either: | 0008 | (a) the issuance of the license; | 0009 | (b) the issuance of a notice of denial; or | 0010 | (c) ninety (90) days after the temporary license is | 0011 | issued, whichever occurs first. | 0012 | 5. The Tribal Gaming Agency shall review a person's prior | 0013 | activities, criminal record, if any, and reputation, | 0014 | habits and associations to make a finding concerning | 0015 | the eligibility or suitability of an applicant, or a | 0016 | principal, key employee or primary management official | 0017 | of an applicant, for employment or involvement in a | 0018 | gaming enterprise. After such consultation, the | 0019 | Tribal Gaming Agency shall either issue a license or | 0020 | deny the application. If the Tribal Gaming Agency | 0021 | determines that employment or involvement of the | 0022 | applicant poses a threat to the public interest or to | 0023 | the effective regulation of Class III Gaming or | 0024 | creates or enhances dangers of unsuitable, unfair or | 0025 | illegal practices, methods or activities in the | - 28 - 0001 | conduct of Class III Gaming, the Tribal Gaming Agency | 0002 | shall deny the application. | 0003 | 6. The Tribal Gaming Agency shall retain the right to | 0004 | conduct additional background investigations of any | 0005 | person required to be licensed at any time while the | 0006 | license is valid. | 0007 | D. Procedure for Forwarding Applications and Reports. | 0008 | Procedures for forwarding applications and investigative reports to | 0009 | the Commission and State Gaming Representative: | 0010 | 1. When a key employee or primary management official | 0011 | begins work at a gaming enterprise authorized by this | 0012 | Compact, the Tribal Gaming Agency shall forward to the | 0013 | Commission and the State Gaming Representative a | 0014 | completed application for employment. | 0015 | 2. The Tribal Gaming Agency shall forward the report | 0016 | referred to in Paragraph D.4. of this section to the | 0017 | Commission and the State Gaming Representative within | 0018 | sixty (60) days after an employee begins work, or | 0019 | within sixty (60) days of the approval of this Compact | 0020 | by the Secretary of the Interior. | 0021 | 3. A key employee or primary management official who does | 0022 | not have a license shall not be employed after ninety | 0023 | (90) days. | 0024 | 4. The Tribal Gaming Agency shall prepare and forward to | 0025 | the Commission and the State Gaming Representative a | - 29 - 0001 | report on each background investigation | 0002 | ("Investigative Report"). An Investigative Report | 0003 | shall include all of the following: | 0004 | (a) steps taken in conducting the background | 0005 | investigation; | 0006 | (b) results obtained; | 0007 | (c) conclusions reached; and | 0008 | (d) the basis for those conclusions. | 0009 | 5. The Tribal Gaming Agency shall submit with the | 0010 | Investigative Report a copy of the eligibility | 0011 | determination made under Paragraph C.5. of this | 0012 | section. | 0013 | 6. If a license is not issued to an applicant, the Tribal | 0014 | Gaming Agency shall notify the Commission and the | 0015 | State Gaming Representative. | 0016 | 7. With respect to principals, key employees and primary | 0017 | management officials, the Tribal Gaming Agency shall | 0018 | retain applications for employment and Investigative | 0019 | Reports (if any) for no less than three (3) years from | 0020 | the date of termination of employment. | 0021 | E. Granting a Gaming License. | 0022 | 1. If within thirty (30) days after it receives an | 0023 | Investigative Report, neither the Commission nor the | 0024 | State Gaming Representative has notified the Tribal | 0025 | Gaming Agency that it has an objection to the issuance | - 30 - 0001 | of a license pursuant to a license application filed | 0002 | by a principal, key employee or primary management | 0003 | official, the Tribal Gaming Agency may issue a license | 0004 | to such applicant. | 0005 | 2. The Tribal Gaming Agency shall respond to any request | 0006 | for additional information from the Commission or the | 0007 | State Gaming Representative concerning a principal, | 0008 | key employee or primary management official who is the | 0009 | subject of an Investigative Report. Such a request | 0010 | shall suspend the thirty-day (30-day) period under | 0011 | Paragraph E.1. of this section until the Commission or | 0012 | the State Gaming Representative receives the | 0013 | additional information; however, in no event shall a | 0014 | request for additional information by the State Gaming | 0015 | Representative extend the thirty-day (30-day) period | 0016 | under Paragraph E.1. of this section for a total | 0017 | period of more than sixty (60) days from the date the | 0018 | State Gaming Representative received the Investigative | 0019 | Report. | 0020 | 3. If, within the thirty-day (30-day) period described | 0021 | above, the Commission or the State Gaming | 0022 | Representative provides the Tribal Gaming Agency with | 0023 | a statement itemizing objections to the issuance of a | 0024 | license to a principal, key employee or primary | 0025 | management official for whom the Tribal Gaming Agency | - 31 - 0001 | has provided an application and Investigative Report, | 0002 | the Tribal Gaming Agency shall reconsider the | 0003 | application, taking into account the objections | 0004 | itemized by the Commission and/or the State Gaming | 0005 | Representative, and make a final decision whether to | 0006 | issue a license to such applicant. | 0007 | F. Management Contract. | 0008 | 1. If the Tribe chooses to enter into a Management | 0009 | Contract, the Tribal Gaming Agency shall require that | 0010 | all principals, primary management officials and key | 0011 | employees of the Management Contractor be licensed. | 0012 | 2. The Tribe may enter into a Management Contract only if | 0013 | the Management Contract: | 0014 | (a) provides that all Class III Gaming covered by the | 0015 | Management Contract will be conducted in | 0016 | accordance with the IGRA, the Ordinance and this | 0017 | Compact; | 0018 | (b) enumerates the responsibilities of each of the | 0019 | parties for each identifiable function, | 0020 | including: | 0021 | (1) maintaining and improving the Gaming | 0022 | Facility; | 0023 | (2) providing operating capital; | 0024 | (3) establishing operating days and hours; | 0025 | (4) hiring, firing, training and promoting | - 32 - 0001 | employees; | 0002 | (5) maintaining the gaming enterprise's books | 0003 | and records; | 0004 | (6) preparing the gaming enterprise's financial | 0005 | statements and reports; | 0006 | (7) paying for the services of the independent | 0007 | auditor engaged pursuant to 25 C.F.R. | 0008 | 571.12; | 0009 | (8) hiring and supervising security personnel; | 0010 | (9) providing fire protection services; | 0011 | (10) setting an advertising budget and placing | 0012 | advertising; | 0013 | (11) paying bills and expenses; | 0014 | (12) establishing and administering employment | 0015 | practices; | 0016 | (13) obtaining and maintaining insurance | 0017 | coverage, including coverage of public | 0018 | liability and property loss or damage; | 0019 | (14) complying with all applicable provisions of | 0020 | the Internal Revenue Code of 1986, as | 0021 | amended; | 0022 | (15) paying the cost of public safety services; | 0023 | and | 0024 | (16) if applicable, supplying the Commission with | 0025 | all information necessary for the Commission | - 33 - 0001 | to comply with the National Environmental | 0002 | Policy Act of 1969; | 0003 | (c) provides for the establishment and maintenance of | 0004 | satisfactory accounting systems and procedures | 0005 | that shall, at a minimum: | 0006 | (1) include an adequate system of internal | 0007 | controls; | 0008 | (2) permit the preparation of financial | 0009 | statements in accordance with generally | 0010 | accepted accounting principles; | 0011 | (3) be susceptible to audit; | 0012 | (4) permit the calculation and payment of the | 0013 | Management Contractor's fee; and | 0014 | (5) provide for the allocation of operating | 0015 | expenses or overhead expenses among the | 0016 | Tribe, the Management Contractor and any | 0017 | other user of a shared Gaming Facility and | 0018 | services; | 0019 | (d) requires the Management Contractor to provide the | 0020 | Tribe, not less frequently than monthly, | 0021 | verifiable financial reports or all information | 0022 | necessary to prepare such reports; | 0023 | (e) requires the Management Contractor to provide | 0024 | immediate access to the Gaming Facility, | 0025 | including its books and records, by appropriate | - 34 - 0001 | officials of the Tribe, who shall have: | 0002 | (1) the right to verify the daily gross revenues | 0003 | and income from the gaming enterprise; and | 0004 | (2) access to any other gaming-related | 0005 | information the Tribe deems appropriate; | 0006 | (f) provides for a minimum guaranteed monthly payment | 0007 | to the Tribe in a sum certain that has preference | 0008 | over the retirement of development and | 0009 | construction costs; | 0010 | (g) provides an agreed upon maximum dollar amount for | 0011 | the recoupment of development and construction | 0012 | costs; | 0013 | (h) provides for a term not to exceed the period | 0014 | allowed by the IGRA; | 0015 | (i) details the method of compensating and | 0016 | reimbursing the Management Contractor. If a | 0017 | Management Contract provides for a percentage | 0018 | fee, such fee shall be either: | 0019 | (1) not more than thirty percent (30%) of the | 0020 | net revenues of the gaming enterprise if the | 0021 | Chairman of the Commission determines that | 0022 | such percentage is reasonable considering | 0023 | the circumstances; or | 0024 | (2) not more than forty percent (40%) of the net | 0025 | revenues if the Chairman of the Commission | - 35 - 0001 | is satisfied that the capital investment | 0002 | required and income projections for the | 0003 | gaming enterprise require the additional | 0004 | fee; | 0005 | (j) provides the grounds and mechanisms for modifying | 0006 | or terminating the Management Contract; | 0007 | (k) contains a mechanism to resolve disputes between: | 0008 | (1) the Management Contractor and customers, | 0009 | consistent with the procedures in the | 0010 | Ordinance; | 0011 | (2) the Management Contractor and the Tribe; and | 0012 | (3) the Management Contractor and the gaming | 0013 | enterprise employees; | 0014 | (l) indicates whether and to what extent contract | 0015 | assignments and subcontracting are permissible; | 0016 | (m) indicates whether and to what extent changes in | 0017 | the ownership interest in the Management Contract | 0018 | require advance approval by the Tribe; and | 0019 | (n) states that the Management Contract shall not be | 0020 | effective unless and until it is approved by the | 0021 | Chairman of the Commission, date of signature of | 0022 | the parties notwithstanding. | 0023 | 3. The Tribe shall not enter into any Management Contract | 0024 | if the Tribal Gaming Agency determines that the | 0025 | Management Contractor or any principal, primary | - 36 - 0001 | management official or key employee of the Management | 0002 | Contractor is not licensed or is ineligible to be | 0003 | licensed. | 0004 | G. Confidentiality of Records. Any and all background | 0005 | Investigative Reports on employees or contractors, supporting | 0006 | documents acquired or generated in connection therewith, and any | 0007 | other Investigative Reports or documents acquired or generated in | 0008 | the course of investigations performed by the Tribe or the Tribal | 0009 | Gaming Agency, that are provided to the State Gaming Representative | 0010 | or any other agency or official of the State by the Tribal Gaming | 0011 | Agency or the Tribe pursuant to the provisions of this Compact, | 0012 | shall not be deemed public records of the State and shall not be | 0013 | disclosed to any member of the public without the prior express | 0014 | written authorization of an authorized representative of the Tribe; | 0015 | provided, that nothing herein shall preclude any State agency or | 0016 | official from providing information to a federal agency or official | 0017 | having responsibility relative to Indian Gaming or from compliance | 0018 | with any valid order of a court having jurisdiction. | 0019 | SECTION 6. Providers of Class III Gaming Equipment or Devices or | 0020 | Supplies. | 0021 | A. Within thirty (30) days after the effective date of this | 0022 | Compact, if it has not already done so, the Tribal Gaming Agency | 0023 | will adopt standards for any and all Class III Gaming equipment, | 0024 | devices or supplies to be purchased, leased or otherwise acquired | 0025 | by the Tribe after the effective date of this Compact for use in | - 37 - 0001 | any Gaming Facility, which standards shall be at least as strict as | 0002 | the comparable standards applicable to Class III Gaming equipment, | 0003 | devices or supplies within the State of Nevada. Any and all Class | 0004 | III Gaming equipment, devices or supplies acquired by the Tribe | 0005 | after the date of this Compact shall meet or exceed the standards | 0006 | thereby adopted, and any and all Class III Gaming equipment, | 0007 | devices or supplies used by the Tribe in its Gaming Facilities as | 0008 | of the effective date of this Compact shall be upgraded or | 0009 | replaced, if necessary, so as to comply with such standards, by no | 0010 | later than one (1) year after the effective date of this Compact. | 0011 | B. Prior to entering into any future lease or purchase | 0012 | agreement for Class III Gaming equipment, devices or supplies, the | 0013 | Tribe shall obtain sufficient information and identification from | 0014 | the proposed seller or lessor and all persons holding any direct or | 0015 | indirect financial interest in the lessor or the lease/purchase | 0016 | agreement to permit the Tribe to license those persons in | 0017 | accordance with Section 5, hereof. | 0018 | C. The seller, lessor, manufacturer or distributor shall | 0019 | provide, assemble and install all Class III Gaming equipment, | 0020 | devices or supplies in a manner approved and licensed by the Tribe. | 0021 | SECTION 7. Dispute Resolution. | 0022 | A. In the event either party believes that the other party | 0023 | has failed to comply with or has otherwise breached any provision | 0024 | of this Compact, such party may invoke the following procedure: | 0025 | 1. The party asserting noncompliance shall serve written | - 38 - 0001 | notice on the other party. The notice shall identify | 0002 | the specific Compact provision believed to have been | 0003 | violated and shall specify the factual and legal basis | 0004 | for the alleged noncompliance. The notice shall | 0005 | specifically identify the date, time and nature of the | 0006 | alleged noncompliance. Representatives of the State | 0007 | and Tribe shall thereafter meet within thirty (30) | 0008 | days in an effort to resolve the dispute. | 0009 | 2. In the event an allegation by the complaining party is | 0010 | not resolved to the satisfaction of such party within | 0011 | ninety (90) days after service of the notice set forth | 0012 | in Paragraph A.1. of this section, the complaining | 0013 | party may serve upon the other party a notice to cease | 0014 | conduct of the particular game(s) or activities | 0015 | alleged by the complaining party to be in | 0016 | noncompliance. Upon receipt of such notice, the | 0017 | responding party may elect to stop the game(s) or | 0018 | activities specified in the notice or invoke | 0019 | arbitration and continue the game(s) or activities | 0020 | pending the results of arbitration. The responding | 0021 | party shall act upon one of the foregoing options | 0022 | within thirty (30) days of receipt of notice from the | 0023 | complaining party. | 0024 | 3. Arbitration under this authority shall be conducted | 0025 | under the Commercial Arbitration Rules of the American | - 39 - 0001 | Arbitration Association, except that the arbitrators | 0002 | shall be attorneys who are licensed members in good | 0003 | standing of the State Bar of New Mexico or of the bar | 0004 | of another state. The State will select one | 0005 | arbitrator, the Tribe a second arbitrator, and the two | 0006 | so chosen shall select a third arbitrator. If the | 0007 | third arbitrator is not chosen in this manner within | 0008 | ten (10) days after the second arbitrator is selected, | 0009 | the third arbitrator will be chosen in accordance with | 0010 | the rules of the American Arbitration Association. | 0011 | 4. All parties shall bear their own costs of arbitration | 0012 | and attorney fees. | 0013 | 5. The results of arbitration shall be enforceable by an | 0014 | action for injunctive or mandatory injunctive relief | 0015 | against the State and the Tribe in any court of | 0016 | competent jurisdiction. For purposes of any such | 0017 | action, the State and the Tribe acknowledge that any | 0018 | action or failure to act on the part of any agent or | 0019 | employee of the State or the Tribe, contrary to a | 0020 | decision of the arbitrators in an arbitration | 0021 | proceeding conducted under the provisions of this | 0022 | section, occurring after such decision, shall be | 0023 | wholly unauthorized and ultra vires acts, not | 0024 | protected by the sovereign immunity of the State or | 0025 | the Tribe. | - 40 - 0001 | B. Nothing in Subsection 7A. shall be construed to waive, | 0002 | limit or restrict any remedy that is otherwise available to either | 0003 | party to enforce or resolve disputes concerning the provisions of | 0004 | this Compact. Nothing in this Compact shall be deemed a waiver of | 0005 | the Tribe's sovereign immunity. Nothing in this Compact shall be | 0006 | deemed a waiver of the State's sovereign immunity. | 0007 | SECTION 8. Protection of Patrons. | 0008 | A. Liability to Patrons. To ensure the personal safety and | 0009 | protection of patrons and other invitees of a Tribe's Gaming | 0010 | Facility operated under the provisions of this Compact, the Tribe | 0011 | shall at all times maintain in effect a policy of public liability | 0012 | insurance, insuring the Tribe, its agents and employees against any | 0013 | claims, demands or liability that may arise as a result of personal | 0014 | injury to any person (other than an employee of the gaming | 0015 | establishment) occurring anywhere on the premises of any gaming | 0016 | establishment operated by the Tribe under the provisions of this | 0017 | Compact, or as a result of any act or omission of any agent or | 0018 | employee of such gaming establishment while in the course of his or | 0019 | her employment, which policy shall provide personal injury coverage | 0020 | of no less than one million dollars ($1,000,000) per injured person | 0021 | and ten million dollars ($10,000,000) aggregate per policy year. | 0022 | The Tribe agrees that it will require that the insurance | 0023 | contract provide that in the event of any claim made against it or | 0024 | its gaming enterprise, or any agent or employee thereof, arising | 0025 | out of any personal injury as described above, neither the Tribe | - 41 - 0001 | nor its insurer will assert any defense of immunity from suit as to | 0002 | such claim for compensatory damages up to the amount of one million | 0003 | dollars ($1,000,000) per injured person, in any claim pursued as | 0004 | provided in this subsection; provided, however, that this agreement | 0005 | not to assert such defense shall be strictly limited as provided | 0006 | herein, and shall not apply to any claim for punitive damages, or | 0007 | to any claim for any loss or damage other than that arising from | 0008 | actual bodily injury or death, or to any claim for damages in | 0009 | excess of the amount set forth herein. Nothing herein shall be | 0010 | construed as stating or implying that the Tribe has waived or | 0011 | agreed not to assert its immunity from suit for any other purpose | 0012 | or in any other circumstance other than the limited purposes and | 0013 | circumstances expressly set forth herein, and nothing herein shall | 0014 | be construed as an admission of liability as to any claim for | 0015 | damages or as an agreement or indication of willingness to pay any | 0016 | amount as damages absent a determination of fault, and the Tribe or | 0017 | its insurer, or both, shall in every instance have the right to | 0018 | defend any such claim fully on the merits. | 0019 | Any person wishing to prosecute a claim for personal injury | 0020 | against the Gaming Enterprise as provided in this subsection, and | 0021 | who is unable to arrive at a satisfactory settlement of such claim, | 0022 | may proceed, by no later than three (3) years after the date of the | 0023 | incident giving rise to the claim, either by filing suit in the | 0024 | tribal court of the Tribe, or by demanding binding arbitration as | 0025 | provided herein. The Tribe agrees that it will provide a tribal | - 42 - 0001 | court that is competent to hear such claims, and that it will | 0002 | permit its Gaming Enterprise, and the employees thereof, to be sued | 0003 | in such courts on such claims, subject to the conditions set forth | 0004 | in this subsection. A claimant who wishes to proceed by binding | 0005 | arbitration shall submit a written demand therefor to the Gaming | 0006 | Enterprise, by certified mail, return receipt requested. The | 0007 | claimant and the Gaming Enterprise shall each designate an | 0008 | arbitrator within thirty (30) days of the date of receipt of such | 0009 | demand, and the two arbitrators shall select a third arbitrator. | 0010 | The arbitration panel shall permit the parties to engage in | 0011 | reasonable discovery, and shall establish other procedures so as to | 0012 | assure a full, fair and expeditious hearing on the claim. The | 0013 | award of the arbitration panel shall be final and binding (except | 0014 | that any such award of damages to the claimant shall in no event | 0015 | exceed the limits of liability set forth in this subsection). The | 0016 | Tribe's insurer shall be subject to suit in any court of competent | 0017 | jurisdiction for enforcement of the arbitration award. | 0018 | The Tribe shall provide to the State Gaming Representative | 0019 | annually a certificate of insurance showing that its gaming | 0020 | enterprise and its agents and employees engaged therein are insured | 0021 | to the extent and in the circumstances required by this section. | 0022 | If the State Gaming Representative so requests in writing, the | 0023 | certificate of insurance may be furnished directly to the State | 0024 | Gaming Representative from the insurance carrier or the insuring | 0025 | agency for the insured Tribe. | - 43 - 0001 | The Tribe's failure to comply with any awards by an | 0002 | arbitration panel or judgment of a tribal court in any action | 0003 | brought under the provisions of this section shall be deemed a | 0004 | violation of the Compact and may be enforced by the State under the | 0005 | provisions of Section 7. | 0006 | B. Public Health and Safety. The Tribe shall establish for | 0007 | its Gaming Facility health, safety and construction standards that | 0008 | are at least as stringent as the current editions of the National | 0009 | Electrical Code, the Uniform Building Code, the Uniform Mechanical | 0010 | Code, the Uniform Fire Code and the Uniform Plumbing Code, and any | 0011 | and all Gaming Facilities or additions thereto constructed by the | 0012 | Tribe hereafter shall be constructed and all facilities shall be | 0013 | maintained so as to comply with such standards. Inspections will | 0014 | be conducted with respect to these standards at least annually. If | 0015 | the State Gaming Representative requests sufficiently in advance of | 0016 | an annual inspection, the State Gaming Representative may be | 0017 | present during such inspection. The Tribe agrees to correct any | 0018 | deficiencies noted in such inspections within a reasonable period | 0019 | of time. The Tribal Gaming Agency will provide copies of such | 0020 | inspection reports to the State Gaming Representative, if requested | 0021 | to do so in writing. | 0022 | SECTION 9. Effective Date. This Compact shall be effective | 0023 | immediately upon the occurrence of the last of the following: | 0024 | A. execution by the Tribe's Governor after approval of the | 0025 | Tribal Council; | - 44 - 0001 | B. execution by the Governor of the State; | 0002 | C. approval by the Secretary of the Interior; and | 0003 | D. publication in the Federal Register. | 0004 | The Governor is authorized to execute compacts with an | 0005 | individual Tribe that has also entered into revenue-sharing | 0006 | agreements and has passed resolutions described herein, in | 0007 | substantially the same form as set forth herein. Upon signature by | 0008 | the Governor and the Tribe, the Compact shall be transmitted to the | 0009 | Secretary of the Interior for approval. | 0010 | SECTION 10. Criminal Jurisdiction. | 0011 | A. The Tribe and the State acknowledge that under the | 0012 | provisions of 23 of the IGRA, especially that portion codified at | 0013 | 18 U.S.C. 1166(d), jurisdiction to prosecute violations of State | 0014 | gambling laws made applicable by that section to Indian country is | 0015 | vested exclusively within the United States, unless the Tribe and | 0016 | the State agree in a compact entered into the IGRA to transfer such | 0017 | jurisdiction to the State. | 0018 | B. The Tribe and the State hereby agree that, in the event | 0019 | of any violation of any State gambling law on Indian Lands or any | 0020 | other crime against the Gaming Enterprise or any employee thereof | 0021 | or that occurs on the premises of the Tribal Gaming Facility, that | 0022 | is committed by any person who is not a member of the Tribe, the | 0023 | State shall have and may exercise jurisdiction, concurrent with | 0024 | that of the United States, to prosecute such person, under its laws | 0025 | and in its courts. | - 45 - 0001 | C. Immediately upon becoming aware of any such suspected | 0002 | crime by a nonmember of the Tribe, the Gaming Enterprise or the | 0003 | Tribal Gaming Agency shall notify the state attorney general and | 0004 | the district attorney for the district in which the Gaming Facility | 0005 | is located, supplying all particulars available to the tribal | 0006 | entity at the time. The Tribe agrees that its law enforcement and | 0007 | gaming agencies shall perform such additional investigation or take | 0008 | such other steps in furtherance of the investigation and | 0009 | prosecution of the violation as the district attorney may | 0010 | reasonably request, and otherwise cooperate fully with the district | 0011 | attorney and any state law enforcement agencies with respect to the | 0012 | matter, but once notice of a suspected violation has been given to | 0013 | the district attorney, the matter shall be deemed to be under the | 0014 | jurisdiction of the State (except that in the event of emergency | 0015 | circumstances involving a possible violation, the Tribe and its | 0016 | constituent agencies shall have the discretion to act as they see | 0017 | fit, and to call upon such other agencies or entities as they deem | 0018 | reasonable or necessary, in order to protect against any immediate | 0019 | threat to lives or property). The State may, in its discretion, | 0020 | refer the matter to federal authorities, but it shall notify the | 0021 | Tribal Gaming Agency upon doing so. | 0022 | D. The State agrees that no less frequently than annually it | 0023 | will provide the Tribal Gaming Agency with a written report of the | 0024 | status and disposition of each matter referred to it under the | 0025 | provisions of this section that is still pending. In the event the | - 46 - 0001 | district attorney to whom a matter is referred under the provisions | 0002 | of this section decides not to prosecute such matter, the district | 0003 | attorney shall promptly notify the Tribal Gaming Agency of such | 0004 | decision in writing, setting forth the specific reasons therefor. | 0005 | The Tribal Gaming Agency may in that event ask the attorney general | 0006 | of the state to pursue the matter. | 0007 | E. The district attorney for the district in which the | 0008 | Gaming Facility is situated may decline to accept referrals of | 0009 | cases under the provisions of this section unless and until the | 0010 | Tribe has entered into a Memorandum of Understanding with the | 0011 | office of the district attorney to which Memorandum of | 0012 | Understanding the United States Attorney for the District of New | 0013 | Mexico may also be a party addressing such matters as the specific | 0014 | procedures by which cases are to be referred, participation of the | 0015 | Tribal Gaming Agency and tribal law enforcement personnel in the | 0016 | investigation and prosecution of any such case, payments by the | 0017 | Tribe to the office of the district attorney to defray the costs of | 0018 | handling cases referred under the provisions of this section, and | 0019 | related matters. | 0020 | SECTION 11. Binding Effect and Duration. | 0021 | A. This Compact shall be binding upon the State and Tribe | 0022 | for a term of eight (8) years from the date it becomes effective | 0023 | and may renew for an additional four-year (4-year) period. | 0024 | B. Before the date that is one (1) year prior to the | 0025 | expiration of the eight-year (8-year) initial term, and/or before | - 47 - 0001 | the date that is one (1) year prior to the expiration of the four- | 0002 | year (4-year) renewal period, either party may serve written notice | 0003 | on the other of its desire to renegotiate this Compact. | 0004 | C. In the event that either party gives written notice to | 0005 | the other of its desire to renegotiate this Compact pursuant to | 0006 | Subsection B. of this section, the Tribe may, pursuant to the | 0007 | procedures of the IGRA, request the State to enter into | 0008 | negotiations for a new compact governing the conduct of Class III | 0009 | Gaming. If the parties are unable to conclude a successor compact, | 0010 | this Compact shall terminate. | 0011 | D. Notwithstanding the foregoing, at any time while this | 0012 | Compact remains in effect, either party may, by written notice to | 0013 | the other party, request reopening of negotiations with respect to | 0014 | any provision of this Compact, or with respect to any issue not | 0015 | addressed in the Compact, specifying such provision or issue in | 0016 | such notice. No such request shall be unreasonably refused, but | 0017 | neither party shall be required to agree to any change in the | 0018 | Compact, and no agreement to supplement or amend this Compact in | 0019 | any respect shall have any validity until the same shall have been | 0020 | approved in writing by the Tribe, the State and the Secretary of | 0021 | the Interior and notice of such approval published in the Federal | 0022 | Register. | 0023 | E. The Tribe may operate Class III Gaming only while this | 0024 | Compact or any renegotiated compact is in effect. | 0025 | SECTION 12. Notice to Parties. | - 48 - 0001 | Unless otherwise indicated, all notices, payments, requests, | 0002 | reports, information or demand that any party hereto may desire or | 0003 | may be required to give to the other party hereto, shall be in | 0004 | writing and shall be personally delivered or sent by first-class | 0005 | mail sent to the other party at the address provided in writing by | 0006 | the other party. Every notice, payment, request, report, | 0007 | information or demand so given shall be deemed effective upon | 0008 | receipt or, if mailed, upon receipt or the expiration of the third | 0009 | day following the day of mailing, whichever occurs first, except | 0010 | that any notice of change of address shall be effective only upon | 0011 | receipt by the party to whom said notice is addressed. | 0012 | SECTION 13. Entire Agreement. | 0013 | This Compact is the entire agreement between the parties and | 0014 | supersedes all prior agreements, whether written or oral, with | 0015 | respect to the subject matter hereof. Neither this Compact nor any | 0016 | provision herein may be changed, waived, discharged or terminated | 0017 | orally, but only by an instrument, in writing, signed by the Tribe | 0018 | and the State and approved by the Secretary of the Interior. | 0019 | SECTION 14. Filing of Compact with State Records Center. | 0020 | Upon the effective date of this Compact, a copy shall be | 0021 | filed by the Governor with the New Mexico Records Center. Any | 0022 | subsequent amendment or modification of this Compact shall be filed | 0023 | with the New Mexico Records Center. | 0024 | SECTION 15. Counterparts. | 0025 | This Compact may be executed by the parties in any number of | - 49 - 0001 | separate counterparts with the same effect as if the signatures | 0002 | were upon the same instrument. All such counterparts shall | 0003 | together constitute one and the same document." | 0004 | Section 2. [[+NEW MATERIAL+]] REVENUE SHARING OF TRIBAL GAMING | 0005 | REVENUE.--The governor is authorized to execute a revenue-sharing | 0006 | agreement in the form substantially set forth in this section with | 0007 | any New Mexico Indian nation, tribe or pueblo that has also entered | 0008 | into an Indian gaming compact as provided by law. Execution of an | 0009 | Indian gaming compact is conditioned upon execution of a revenue- | 0010 | sharing agreement. The consideration for the Indian entity | 0011 | entering into the revenue-sharing agreement is the condition of the | 0012 | agreement providing limited exclusivity of gaming activities to the | 0013 | tribal entity. The revenue-sharing agreement shall be in | 0014 | substantially the following form and is effective when executed by | 0015 | the governor on behalf of the state and the appropriate official of | 0016 | the Indian entity: | 0017 | "REVENUE-SHARING AGREEMENT | 0018 | 1. Summary and consideration. The Tribe shall agree to | 0019 | contribute certain of its Class III Gaming revenues, as described | 0020 | below. | 0021 | 2. Revenue to State. The parties agree that, after the | 0022 | effective date hereof, the Tribe shall make semi-annual payments to | 0023 | the General Fund of the State ("State General Fund"). | 0024 | 3. Calculation of Revenue to State. | 0025 | A. The parties agree that, as used herein, "net win" is | - 50 - 0001 | defined as the total amount wagered at each Gaming Facility on | 0002 | Class III Gaming, which is protected by the limitations in | 0003 | Paragraph 5, below, and elsewhere herein, minus the total amount | 0004 | paid as prizes (including noncash prizes) and winning wagers at | 0005 | said games, and minus all tribal regulatory fees and expenses, | 0006 | supported by reasonable, adequate documentation, not to exceed two | 0007 | hundred fifty thousand dollars ($250,000) per year and minus | 0008 | federal and State regulatory fees and expenses, and taxes. | 0009 | B. The tribe shall pay the state fifteen percent of the | 0010 | net win of each Gaming Facility. | 0011 | C. For purposes of these payments, all calculations of | 0012 | amounts due shall be based upon a calendar year beginning January 1 | 0013 | and ending December 31, unless the parties agree on a different | 0014 | fiscal year. The semiannual payments due to the State pursuant to | 0015 | these terms shall be paid no later than twenty-five (25) days after | 0016 | December 31 and June 30 of each year (or commensurate dates if the | 0017 | fiscal year agreed upon is different from the calendar year). Any | 0018 | payments due and owing from the Tribe in the year the Compact is | 0019 | approved, or the final year the Compact is in force, shall reflect | 0020 | the net win, but only for the portion of the year the Compact is in | 0021 | effect. | 0022 | 4. Limitations. The Tribe's obligation to make the payments | 0023 | provided for in Paragraphs 2 and 3 of this section shall apply and | 0024 | continue only so long as there is a binding Indian Gaming Compact | 0025 | in effect between the Tribe and the State, which Compact provides | - 51 - 0001 | for the play of Class III Gaming, but shall terminate in the event | 0002 | of any of the following conditions: | 0003 | A. If the State passes, amends, or repeals any law, or | 0004 | takes any other action, which would directly or indirectly attempt | 0005 | to restrict, or has the effect of restricting, the scope of Indian | 0006 | gaming. | 0007 | B. If the State permits any expansion of nontribal Class | 0008 | III Gaming in the State. Notwithstanding this general prohibition | 0009 | against permitted expansion of gaming activities, the State may | 0010 | permit: (1) the enactment of a State lottery, (2) any fraternal, | 0011 | veterans or other nonprofit membership organization to operate such | 0012 | electronic gaming devices lawfully, but only for the benefit of | 0013 | such organization's members, (3) limited fundraising activities | 0014 | conducted by nonprofit tax exempt organizations pursuant to Section | 0015 | 30-19-6 NMSA 1978, and (4) any horse racetracks to operate | 0016 | electronic gaming devices on days on which live or simulcast horse | 0017 | racing occurs. | 0018 | 5. Effect of Variance. | 0019 | A. In the event the acts or omissions of the State cause | 0020 | the Tribe's obligation to make payments under Paragraph 3 of this | 0021 | section to terminate under the provisions of Paragraph 4 of this | 0022 | section, such cessation of obligation to pay will not adversely | 0023 | affect the validity of the Compact, but the maximum amount that the | 0024 | Tribe agrees to reimburse the State for actual documented | 0025 | regulatory costs under the Compact shall automatically increase to | - 52 - 0001 | one hundred thousand dollars ($100,000) per year. | 0002 | B. In the event a Tribe's revenue-sharing payment to the | 0003 | State is less than one hundred thousand dollars ($100,000) per | 0004 | year, the maximum amount that the Tribe agrees to reimburse the | 0005 | State for actual documented regulatory costs under the Compact | 0006 | shall automatically increase to one hundred thousand dollars | 0007 | ($100,000) per year less the amount of the revenue-sharing payment. | 0008 | 6. Third-Party Beneficiaries. This Agreement is not | 0009 | intended to create any third-party beneficiaries and is entered | 0010 | into solely for the benefit of the Tribe and the State." | 0011 | Section 3. [[+NEW MATERIAL+]] SHORT TITLE.--Sections 3 through | 0012 | 62 of this act may be cited as the "Gaming Control Act". | 0013 | Section 4. [[+NEW MATERIAL+]] POLICY.--It is the state's policy | 0014 | on gaming that: | 0015 | A. limited gaming activities should be allowed in the | 0016 | state if those activities are strictly regulated to ensure honest | 0017 | and competitive gaming that is free from criminal and corruptive | 0018 | elements and influences; and | 0019 | B. the holder of any license issued by the state in | 0020 | connection with the regulation of gaming activities has a revocable | 0021 | privilege only and has no property right or vested interest in the | 0022 | license. | 0023 | Section 5. [[+NEW MATERIAL+]] DEFINITIONS.--As used in the | 0024 | Gaming Control Act: | 0025 | A. "affiliate" means a person who, directly or | - 53 - 0001 | indirectly through one or more intermediaries, controls, is | 0002 | controlled by or is under common control with a specified person; | 0003 | B. "affiliated company" means a company that: | 0004 | (1) controls, is controlled by or is under common | 0005 | control with a company licensee; and | 0006 | (2) is involved in gaming activities or involved in | 0007 | the ownership of property on which gaming is conducted; | 0008 | C. "applicant" means a person who has applied for a | 0009 | license or for approval of an act or transaction for which approval | 0010 | is required or allowed pursuant to the provisions of the Gaming | 0011 | Control Act; | 0012 | D. "application" means a request for the issuance of a | 0013 | license or for approval of an act or transaction for which approval | 0014 | is required or allowed pursuant to the provisions of the Gaming | 0015 | Control Act, but "application" does not include a supplemental form | 0016 | or information that may be required with the application; | 0017 | E. "associated equipment" means equipment or a | 0018 | mechanical, electromechanical or electronic contrivance, component | 0019 | or machine used in connection with gaming; | 0020 | F. "board" means the gaming control board; | 0021 | G. "certification" means a notice of approval by the | 0022 | board of a person required to be certified by the board; | 0023 | H. "certified technician" means a person certified by a | 0024 | manufacturer licensee to repair and service gaming devices, but who | 0025 | is prohibited from programming gaming devices; | - 54 - 0001 | I. "company" means a corporation, partnership, limited | 0002 | partnership, trust, association, joint stock company, joint | 0003 | venture, limited liability company or other form of business | 0004 | organization that is not a natural person; | 0005 | J. "distributor" means a person who supplies gaming | 0006 | devices to a gaming operator but does not manufacture gaming | 0007 | devices; | 0008 | K. "equity security" means an interest in a company | 0009 | that is evidenced by: | 0010 | (1) voting stock or similar security; | 0011 | (2) a security convertible into voting stock or | 0012 | similar security, with or without consideration, or a security | 0013 | carrying a warrant or right to subscribe to or purchase voting | 0014 | stock or similar security; | 0015 | (3) a warrant or right to subscribe to or purchase | 0016 | voting stock or similar security; or | 0017 | (4) a security having a direct or indirect | 0018 | participation in the profits of the issuer; | 0019 | L. "executive director" means the chief administrative | 0020 | officer appointed by the board pursuant to Section 9 of the Gaming | 0021 | Control Act; | 0022 | M. "finding of suitability" means a certification of | 0023 | approval issued by the board permitting a person to be involved | 0024 | directly or indirectly with a licensee, relating only to the | 0025 | specified involvement for which it is made; | - 55 - 0001 | N. "game" means an activity in which, upon payment of | 0002 | consideration, a player receives a prize or other thing of value, | 0003 | the award of which is determined by chance even though accompanied | 0004 | by some skill; "game" does not include an activity played in a | 0005 | private residence in which no person makes money for operating the | 0006 | activity except through winnings as a player; | 0007 | O. "gaming" means offering a game for play; | 0008 | P. "gaming activity" means any endeavor associated with | 0009 | the manufacture or distribution of gaming devices or the conduct of | 0010 | gaming; | 0011 | Q. "gaming device" means associated equipment or a | 0012 | gaming machine and includes a system for processing information | 0013 | that can alter the normal criteria of random selection that affects | 0014 | the operation of a game or determines the outcome of a game; | 0015 | "gaming device" does not include a system or device that affects a | 0016 | game solely by stopping its operation so that the outcome remains | 0017 | undetermined; | 0018 | R. "gaming employee" means a person connected directly | 0019 | with a gaming activity; "gaming employee" does not include: | 0020 | (1) bartenders, cocktail servers or other persons | 0021 | engaged solely in preparing or serving food or beverages; | 0022 | (2) secretarial or janitorial personnel; | 0023 | (3) stage, sound and light technicians; or | 0024 | (4) other nongaming personnel; | 0025 | S. "gaming establishment" means the premises on or in | - 56 - 0001 | which gaming is conducted; | 0002 | T. "gaming machine" means a mechanical, | 0003 | electromechanical or electronic contrivance or machine that, upon | 0004 | insertion of a coin, token or similar object, or upon payment of | 0005 | any consideration, is available to play or operate a game, whether | 0006 | the payoff is made automatically from the machine or in any other | 0007 | manner; | 0008 | U. "gaming operator" means a person who conducts | 0009 | gaming; | 0010 | V. "holding company" means a company that directly or | 0011 | indirectly owns or has the power or right to control a company that | 0012 | is an applicant or licensee, but a company that does not have a | 0013 | beneficial ownership of more than ten percent of the equity | 0014 | securities of a publicly traded corporation is not a holding | 0015 | company; | 0016 | W. "immediate family" means natural persons who are | 0017 | related to a specified natural person by affinity or consanguinity | 0018 | in the first through the third degree; | 0019 | X. "independent administrator" means a person who | 0020 | administers an annuity, who is not associated in any manner with | 0021 | the gaming operator licensee for which the annuity was purchased | 0022 | and is in no way associated with the person who will be receiving | 0023 | the annuity; | 0024 | Y. "institutional investor" means a state or federal | 0025 | government pension plan or a person that meets the requirements of | - 57 - 0001 | a qualified institutional buyer as defined in Rule 144A of the | 0002 | federal Securities Act of 1933, and is: | 0003 | (1) a bank as defined in Section 3(a)(6) of the | 0004 | federal Securities Exchange Act of 1934; | 0005 | (2) an insurance company as defined in Section | 0006 | 2(a)(17) of the federal Investment Company Act of 1940; | 0007 | (3) an investment company registered under Section | 0008 | 8 of the federal Investment Company Act of 1940; | 0009 | (4) an investment adviser registered under Section | 0010 | 203 of the federal Investment Advisers Act of 1940; | 0011 | (5) collective trust funds as defined in Section | 0012 | 3(c)(11) of the federal Investment Company Act of 1940; | 0013 | (6) an employee benefit plan or pension fund that | 0014 | is subject to the federal Employee Retirement Income Security Act | 0015 | of 1974, excluding an employee benefit plan or pension fund | 0016 | sponsored by a publicly traded corporation registered with the | 0017 | board; or | 0018 | (7) a group comprised entirely of persons specified | 0019 | in Paragraphs (1) through (6) of this subsection; | 0020 | Z. "intermediary company" means a company that: | 0021 | (1) is a holding company with respect to a company | 0022 | that is an applicant or licensee; and | 0023 | (2) is a subsidiary with respect to any holding | 0024 | company; | 0025 | AA. "key executive" means an executive of a licensee or | - 58 - 0001 | other person having the power to exercise significant influence | 0002 | over decisions concerning any part of the licensed operations of | 0003 | the licensee or whose compensation exceeds an amount established by | 0004 | the board in a regulation; | 0005 | BB. "license" means an authorization required by the | 0006 | board for engaging in gaming activities; | 0007 | CC. "licensee" means a person to whom a valid license | 0008 | has been issued; | 0009 | DD. "manufacturer" means a person who manufactures, | 0010 | fabricates, assembles, produces, programs or makes modifications to | 0011 | any gaming device for use or play in New Mexico or for sale, lease | 0012 | or distribution outside New Mexico from any location within New | 0013 | Mexico; | 0014 | EE. "net take" means the total of the following, less | 0015 | the total of all cash paid out as losses to winning patrons and | 0016 | those amounts paid to purchase annuities to fund losses paid to | 0017 | winning patrons over several years by independent administrators: | 0018 | (1) cash received from patrons for playing a game; | 0019 | (2) cash received in payment for credit extended by | 0020 | a licensee to a patron for playing a game; and | 0021 | (3) compensation received for conducting a game in | 0022 | which the licensee is not a party to a wager; | 0023 | FF. "nonprofit organization" means: [++] | 0024 | [++] (1) a fraternal organization that is described in | 0025 | Section 501(c)(8) or (10) of the federal Internal Revenue Code of | - 59 - 0001 | 1986 and that is exempt from federal income taxation pursuant to | 0002 | Section 501(a) of that code; or | 0003 | (2) a veterans' organization that is described in | 0004 | Section 501(c)(19) or (23) of the federal Internal Revenue Code of | 0005 | 1986 and that is exempt from federal income taxation pursuant to | 0006 | Section 501(a) of that code; | 0007 | GG. "person" means a legal entity; | 0008 | HH. "premises" means land, together with all buildings, | 0009 | improvements and personal property located on the land; | 0010 | II. "progressive jackpot" means a prize that increases | 0011 | over time or as gaming machines that are linked to a progressive | 0012 | system are played and upon conditions established by the board may | 0013 | be paid by an annuity; | 0014 | JJ. "progressive system" means one or more gaming | 0015 | machines linked to one or more common progressive jackpots; | 0016 | KK. "publicly traded corporation" means a corporation | 0017 | that: | 0018 | (1) has one or more classes of securities | 0019 | registered pursuant to the securities laws of the United States or | 0020 | New Mexico; | 0021 | (2) is an issuer subject to the securities laws of | 0022 | the United States or New Mexico; or | 0023 | (3) has one or more classes of securities | 0024 | registered or is an issuer pursuant to applicable foreign laws that | 0025 | the board finds provide protection for institutional investors that | - 60 - 0001 | is comparable to or greater than the stricter of the securities | 0002 | laws of the United States or New Mexico; | 0003 | LL. "registration" means a board action that authorizes | 0004 | a company to be a holding company with respect to a company that | 0005 | holds or applies for a license or that relates to other persons | 0006 | required to be registered pursuant to the Gaming Control Act; | 0007 | MM. "subsidiary" means a company, all or a part of | 0008 | whose outstanding equity securities are owned, subject to a power | 0009 | or right of control or held, with power to vote, by a holding | 0010 | company or intermediary company; and | 0011 | NN. "work permit" means a card, certificate or permit | 0012 | issued by the board, whether denominated as a work permit, | 0013 | registration card or otherwise, authorizing the employment of the | 0014 | holder as a gaming employee. | 0015 | Section 6. [[+NEW MATERIAL+]] LIMITED GAMING ACTIVITY | 0016 | PERMITTED.--Gaming activity is permitted in New Mexico only if it | 0017 | is conducted in compliance with and pursuant to: | 0018 | A. the Gaming Control Act; or | 0019 | B. a state or federal law other than the Gaming Control | 0020 | Act that expressly permits the activity or exempts it from the | 0021 | application of the state criminal law, or both. | 0022 | Section 7. [[+NEW MATERIAL+]] GAMING CONTROL BOARD CREATED.-- | 0023 | A. The "gaming control board" is created and consists | 0024 | of five members. Three members are appointed by the governor | 0025 | with the advice and consent of the senate, and two members are ex | - 61 - 0001 | officio: the chairman of the state racing commission and the | 0002 | chairman of the board of the New Mexico lottery authority. All | 0003 | members of the board shall be residents of New Mexico and | 0004 | citizens of the United States. One appointed member of the board | 0005 | shall have a minimum of five years of previous employment in a | 0006 | supervisory and administrative position in a law enforcement | 0007 | agency; one appointed member of the board shall be a certified | 0008 | public accountant in New Mexico who has had at least five years | 0009 | of experience in public accountancy; and one appointed member of | 0010 | the board shall be an attorney who has been admitted to practice | 0011 | before the supreme court of New Mexico.[++] | 0012 | [++] B. The appointed members of the board shall be | 0013 | appointed for terms of five years, except, of the members who are | 0014 | first appointed, the member with law enforcement experience shall | 0015 | be appointed for a term of five years; the member who is a | 0016 | certified public accountant shall be appointed for a term of four | 0017 | years; and the member who is an attorney shall be appointed for | 0018 | a term of three years. Thereafter, all members shall be | 0019 | appointed for terms of five years. No person shall serve as a | 0020 | board member for more than two consecutive terms or ten years | 0021 | total. | 0022 | C. No person appointed to the board may be employed | 0023 | in any other capacity or shall in any manner receive compensation | 0024 | for services rendered to any person or entity other than the | 0025 | board while a member of the board. | - 62 - 0001 | D. A vacancy on the board of an appointed member | 0002 | shall be filled within thirty days by the governor with the | 0003 | advice and consent of the senate for the unexpired portion of the | 0004 | term in which the vacancy occurs. A person appointed to fill a | 0005 | vacancy shall meet all qualification requirements of the office | 0006 | established in this section. | 0007 | E. The governor shall choose a chairman annually from | 0008 | the board's appointed membership. | 0009 | F. No more than three members of the board shall be | 0010 | from the same political party. | 0011 | G. The appointed members of the board shall be full- | 0012 | time state officials and shall receive a salary set by the | 0013 | governor. | 0014 | H. The department of public safety shall conduct | 0015 | background investigations of all members of the board prior to | 0016 | confirmation by the senate. To assist the department in the | 0017 | background investigation, a prospective board member shall | 0018 | furnish a disclosure statement to the department on a form | 0019 | provided by the department containing that information deemed by | 0020 | the department as necessary for completion of a detailed and | 0021 | thorough background investigation. The required information | 0022 | shall include at least: | 0023 | (1) a full set of fingerprints made by a law | 0024 | enforcement agency on forms supplied by the department; | 0025 | (2) complete information and details with | - 63 - 0001 | respect to the prospective board member's antecedents, habits, | 0002 | immediate family, character, criminal record, business | 0003 | activities, financial affairs and business associates covering at | 0004 | least a ten-year period immediately preceding the date of | 0005 | submitting the disclosure statement; | 0006 | (3) complete disclosure of any equity interest | 0007 | held by the prospective board member or a member of his immediate | 0008 | family in a business connected with gaming; and | 0009 | (4) the names and addresses of members of the | 0010 | immediate family of the prospective board member. | 0011 | I. No person may be appointed or confirmed as a | 0012 | member of the board if that person or member of his immediate | 0013 | family holds an equity interest in a business connected with | 0014 | gaming. | 0015 | J. A prospective board member shall provide | 0016 | assistance and information requested by the department of public | 0017 | safety or the governor and shall cooperate in any inquiry or | 0018 | investigation of the prospective board member's fitness or | 0019 | qualifications to hold the office to which he is appointed. The | 0020 | senate shall not confirm a prospective board member if it has | 0021 | reasonable cause to believe that the prospective board member | 0022 | has: | 0023 | (1) knowingly misrepresented or omitted a | 0024 | material fact required in a disclosure statement; | 0025 | (2) been convicted of a felony, a gaming related | - 64 - 0001 | offense or a crime involving fraud, theft or moral turpitude | 0002 | within ten years immediately preceding the date of submitting a | 0003 | disclosure statement required pursuant to the provisions of | 0004 | Subsection H of this section; | 0005 | (3) exhibited a history of willful disregard for | 0006 | the gaming laws of this or any other state or the United States; | 0007 | or | 0008 | (4) had a permit or license issued pursuant to | 0009 | the gaming laws of this or any other state or the United States | 0010 | permanently suspended or revoked for cause. | 0011 | K. The senate may in its discretion not confirm a | 0012 | prospective board member. | 0013 | L. At the time of taking office, each board member | 0014 | shall file with the secretary of state a sworn statement that he | 0015 | is not disqualified under the provisions of Subsection I of this | 0016 | section. | 0017 | Section 8. [[+NEW MATERIAL+]] BOARD--MEETINGS--QUORUM-- | 0018 | RECORDS.-- | 0019 | A. A majority of the qualified membership of the | 0020 | board then in office constitutes a quorum. No action may be | 0021 | taken by the board unless at least three members concur. | 0022 | B. Written notice of the time and place of each board | 0023 | meeting shall be given to each member of the board at least ten | 0024 | days prior to the meeting. | 0025 | C. Meetings of the board shall be open and public in | - 65 - 0001 | accordance with the Open Meetings Act, except that the board may | 0002 | close a meeting to hear confidential security and investigative | 0003 | information and other information made confidential by the | 0004 | provisions of the Gaming Control Act. | 0005 | D. All proceedings of the board shall be recorded by | 0006 | audiotape or other equivalent verbatim audio recording device. | 0007 | E. The chairman of the board, the executive director | 0008 | or a majority of the members of the board then in office may call | 0009 | a special meeting of the board upon at least five days' prior | 0010 | written notice to all members of the board and the executive | 0011 | director. | 0012 | Section 9. [[+NEW MATERIAL+]] BOARD'S POWERS AND DUTIES.-- | 0013 | A. The board shall implement the state's policy on | 0014 | gaming consistent with the provisions of the Gaming Control Act. | 0015 | It has the duty to fulfill all responsibilities assigned to it | 0016 | pursuant to that act, and it has all authority necessary to carry | 0017 | out those responsibilities. It may delegate authority to the | 0018 | executive director, but it retains accountability. The board is | 0019 | an adjunct agency. | 0020 | B. The board shall: | 0021 | (1) employ the executive director; | 0022 | (2) make the final decision on issuance, denial, | 0023 | suspension and revocation of all licenses pursuant to and | 0024 | consistent with the provisions of the Gaming Control Act; | 0025 | (3) develop, adopt and promulgate all | - 66 - 0001 | regulations necessary to implement and administer the provisions | 0002 | of the Gaming Control Act; | 0003 | (4) conduct itself, or employ a hearing officer | 0004 | to conduct, all hearings required by the provisions of the Gaming | 0005 | Control Act and other hearings it deems appropriate to fulfill | 0006 | its responsibilities; | 0007 | (5) meet at least once each month; and | 0008 | (6) prepare and submit an annual report in | 0009 | December of each year to the governor and the legislature, | 0010 | covering activities of the board in the most recently completed | 0011 | fiscal year, a summary of gaming activities in the state and any | 0012 | recommended changes in or additions to the laws relating to | 0013 | gaming in the state. | 0014 | C. The board may: | 0015 | (1) impose civil fines not to exceed twenty-five | 0016 | thousand dollars ($25,000) for the first violation and fifty | 0017 | thousand dollars ($50,000) for subsequent violations of any | 0018 | prohibitory provision of the Gaming Control Act or any | 0019 | prohibitory provision of a regulation adopted pursuant to that | 0020 | act; | 0021 | (2) conduct investigations; | 0022 | (3) subpoena persons and documents to compel | 0023 | access to or the production of documents and records, including | 0024 | books and memoranda, in the custody or control of any licensee; | 0025 | (4) compel the appearance of employees of a | - 67 - 0001 | licensee or persons for the purpose of ascertaining compliance | 0002 | with provisions of the Gaming Control Act or a regulation adopted | 0003 | pursuant to its provisions; | 0004 | (5) administer oaths and take depositions to the | 0005 | same extent and subject to the same limitations as would apply if | 0006 | the deposition were pursuant to discovery rules in a civil action | 0007 | in the district court; | 0008 | (6) sue and be sued subject to the limitations | 0009 | of the Tort Claims Act; | 0010 | (7) contract for the provision of goods and | 0011 | services necessary to carry out its responsibilities; | 0012 | (8) conduct audits of applicants, licensees and | 0013 | persons affiliated with licensees; | 0014 | (9) inspect, examine, photocopy and audit all | 0015 | documents and records of an applicant or licensee relevant to his | 0016 | gaming activities in the presence of the applicant or licensee or | 0017 | his agent; | 0018 | (10) require verification of income and all | 0019 | other matters pertinent to the gaming activities of an applicant | 0020 | or licensee affecting the enforcement of any provision of the | 0021 | Gaming Control Act; | 0022 | (11) inspect all places where gaming activities | 0023 | are conducted and inspect all property connected with gaming in | 0024 | those places; | 0025 | (12) summarily seize, remove and impound from | - 68 - 0001 | places inspected any gaming devices, property connected with | 0002 | gaming, documents or records for the purpose of examination or | 0003 | inspection; | 0004 | (13) inspect, examine, photocopy and audit all | 0005 | documents and records of any affiliate of an applicant or | 0006 | licensee who the board knows or reasonably suspects is involved | 0007 | in the financing, operation or management of the applicant or | 0008 | licensee. The inspection, examination, photocopying and audit | 0009 | shall be in the presence of a representative of the affiliate or | 0010 | its agent when practicable; and | 0011 | (14) except for the powers specified in | 0012 | Paragraphs (1) and (4) of this subsection, carry out all or part | 0013 | of the foregoing powers and activities through the executive | 0014 | director. | 0015 | Section 10. [[+NEW MATERIAL+]] BOARD REGULATIONS-- | 0016 | DISCRETIONARY REGULATIONS--PROCEDURE--REQUIRED PROVISIONS.-- | 0017 | A. The board may adopt any regulation: | 0018 | (1) consistent with the provisions of the Gaming | 0019 | Control Act; and | 0020 | (2) it decides is necessary to implement the | 0021 | provisions of the Gaming Control Act. | 0022 | B. No regulation shall be adopted, amended or | 0023 | repealed without a public hearing on the proposed action before | 0024 | the board or a hearing officer designated by it. The public | 0025 | hearing shall be held in Santa Fe. Notice of the subject matter | - 69 - 0001 | of the regulation, the action proposed to be taken, the time and | 0002 | place of the hearing, the manner in which interested persons may | 0003 | present their views and the method by which copies of the | 0004 | proposed regulation, amendment or repeal may be obtained shall be | 0005 | published once at least thirty days prior to the hearing date in | 0006 | a newspaper of general circulation and mailed at least thirty | 0007 | days prior to the hearing date to all persons who have made a | 0008 | written request for advance notice of hearing. All regulations | 0009 | and actions taken on regulations shall be filed in accordance | 0010 | with the State Rules Act. | 0011 | C. The board shall adopt regulations: | 0012 | (1) prescribing the method and form of | 0013 | application to be followed by an applicant; | 0014 | (2) prescribing the information to be furnished | 0015 | by an applicant or licensee concerning his antecedents, immediate | 0016 | family, habits, character, associates, criminal record, business | 0017 | activities and financial affairs, past or present; | 0018 | (3) prescribing the manner and procedure of all | 0019 | hearings conducted by the board or a hearing officer; | 0020 | (4) prescribing the manner and method of | 0021 | collection and payment of fees; | 0022 | (5) prescribing the manner and method of the | 0023 | issuance of licenses, permits, registrations, certificates and | 0024 | other actions of the board not elsewhere prescribed in the Gaming | 0025 | Control Act; | - 70 - 0001 | (6) defining the area, games and gaming devices | 0002 | allowed and the methods of operation of the games and gaming | 0003 | devices for authorized gaming; | 0004 | (7) prescribing under what conditions the | 0005 | nonpayment of winnings is grounds for suspension or revocation of | 0006 | a license of a gaming operator; | 0007 | (8) governing the manufacture, sale, | 0008 | distribution, repair and servicing of gaming devices; | 0009 | (9) prescribing accounting procedures, security, | 0010 | collection and verification procedures required of licensees and | 0011 | matters regarding financial responsibility of licensees; | 0012 | (10) prescribing what shall be considered to be | 0013 | an unsuitable method of operating gaming activities; | 0014 | (11) restricting access to confidential | 0015 | information obtained pursuant to the provisions of the Gaming | 0016 | Control Act and ensuring that the confidentiality of that | 0017 | information is maintained and protected; | 0018 | (12) prescribing financial reporting and | 0019 | internal control requirements for licensees; | 0020 | (13) prescribing the manner in which winnings, | 0021 | compensation from gaming activities and net take shall be | 0022 | computed and reported by a gaming operator licensee; | 0023 | (14) prescribing the frequency of and the | 0024 | matters to be contained in audits of and periodic financial | 0025 | reports from a gaming operator licensee consistent with standards | - 71 - 0001 | prescribed by the board; | 0002 | (15) prescribing the procedures to be followed | 0003 | by a gaming operator licensee for the exclusion of persons from | 0004 | gaming establishments; | 0005 | (16) establishing criteria and conditions for | 0006 | the operation of progressive systems; | 0007 | (17) establishing criteria and conditions for | 0008 | approval of procurement by the board of personal property valued | 0009 | in excess of twenty thousand dollars ($20,000), including | 0010 | background investigation requirements for a person submitting a | 0011 | bid or proposal; and | 0012 | (18) establishing an applicant fee schedule for | 0013 | processing applications that is based on costs of the application | 0014 | review incurred by the board whether directly or through payment | 0015 | by the board for costs charged for investigations of applicants | 0016 | by state departments and agencies other than the board, which | 0017 | regulation shall set a maximum fee of one hundred thousand | 0018 | dollars ($100,000). | 0019 | Section 11. [[+NEW MATERIAL+]] EXECUTIVE DIRECTOR-- | 0020 | EMPLOYMENT--QUALIFICATIONS.-- | 0021 | A. The executive director shall be employed by, | 0022 | report directly to and serve at the pleasure of the board. | 0023 | B. The executive director shall have had at least | 0024 | five years of responsible supervisory administrative experience | 0025 | in a governmental gaming regulatory agency. | - 72 - 0001 | C. The executive director shall receive an annual | 0002 | salary to be set by the board, but not to exceed eighty-five | 0003 | thousand dollars ($85,000) per year. | 0004 | Section 12. [[+NEW MATERIAL+]] EXECUTIVE DIRECTOR--POWERS-- | 0005 | DUTIES.-- | 0006 | A. The executive director shall implement the | 0007 | policies of the board. | 0008 | B. The executive director shall employ all personnel | 0009 | who work for the board. The employees shall be covered employees | 0010 | pursuant to the provisions of the Personnel Act. Among those | 0011 | personnel he shall employ and designate an appropriate number of | 0012 | individuals as law enforcement officers subject to proper | 0013 | certification pursuant to the Law Enforcement Training Act. | 0014 | C. The executive director shall establish | 0015 | organizational units he determines are appropriate to administer | 0016 | the provisions of the Gaming Control Act. | 0017 | D. The executive director: | 0018 | (1) may delegate authority to subordinates as he | 0019 | deems necessary and appropriate, clearly delineating the | 0020 | delegated authority and the limitations on it, if any; | 0021 | (2) shall take administrative action by issuing | 0022 | orders and instructions consistent with the Gaming Control Act | 0023 | and regulations of the board to assure implementation of and | 0024 | compliance with the provisions of that act and those regulations; | 0025 | (3) may conduct research and studies that will | - 73 - 0001 | improve the operations of the board and the provision of services | 0002 | to the citizens of the state; | 0003 | (4) may provide courses of instruction and | 0004 | practical training for employees of the board and other persons | 0005 | involved in the activities regulated by the board with the | 0006 | objectives of improving operations of the board and achieving | 0007 | compliance with the law and regulations; | 0008 | (5) shall prepare an annual budget for the board | 0009 | and submit it to the board for approval; and | 0010 | (6) shall make recommendations to the board of | 0011 | proposed regulations and any legislative changes needed to | 0012 | provide better administration of the Gaming Control Act and fair | 0013 | and efficient regulation of gaming activities in the state. | 0014 | Section 13. [[+NEW MATERIAL+]] INVESTIGATION OF EXECUTIVE | 0015 | DIRECTOR CANDIDATES AND EMPLOYEES.-- | 0016 | A. A person who is under consideration in the final | 0017 | selection process for appointment as the executive director shall | 0018 | file a disclosure statement pursuant to the requirements of this | 0019 | section, and the board shall not make an appointment of a person | 0020 | as executive director until a background investigation is | 0021 | completed by the department of public safety and a report is made | 0022 | to the board. | 0023 | B. A person who has reached the final selection | 0024 | process for employment by the executive director shall file a | 0025 | disclosure statement pursuant to the requirements of this section | - 74 - 0001 | if the executive director or the board has directed the person do | 0002 | so. The person shall not be further considered for employment | 0003 | until a background investigation is completed by the department | 0004 | of public safety and a report is made to the executive director. | 0005 | C. Forms for the disclosure statements required by | 0006 | this section shall be developed by the board in cooperation with | 0007 | the department of public safety. At least the following | 0008 | information shall be required of a person submitting a statement: | 0009 | (1) a full set of fingerprints made by a law | 0010 | enforcement agency on forms supplied by the board; | 0011 | (2) complete information and details with | 0012 | respect to the person's antecedents, habits, immediate family, | 0013 | character, criminal record, business activities and business | 0014 | associates, covering at least a ten-year period immediately | 0015 | preceding the date of submitting the disclosure statement; and | 0016 | (3) a complete description of any equity | 0017 | interest held in a business connected with the gaming industry. | 0018 | D. In preparing an investigative report, the | 0019 | department of public safety may request and receive criminal | 0020 | history information from the federal bureau of investigation or | 0021 | any other law enforcement agency or organization. The department | 0022 | of public safety shall maintain confidentiality regarding | 0023 | information received from a law enforcement agency that may be | 0024 | imposed by the agency as a condition for providing the | 0025 | information to the department. | - 75 - 0001 | E. A person required to file a disclosure statement | 0002 | shall provide any assistance or information requested by the | 0003 | department of public safety or the board and shall cooperate in | 0004 | any inquiry or investigation. | 0005 | F. If information required to be included in a | 0006 | disclosure statement changes or if information is added after | 0007 | the statement is filed, the person required to file it shall | 0008 | provide that information in writing to the person requesting the | 0009 | investigation. The supplemental information shall be provided | 0010 | within thirty days after the change or addition. | 0011 | G. The board shall not appoint a person as executive | 0012 | director, and the executive director shall not employ a person, | 0013 | if the board or the executive director has reasonable cause to | 0014 | believe that the person has: | 0015 | (1) knowingly misrepresented or omitted a | 0016 | material fact required in a disclosure statement; | 0017 | (2) been convicted of a felony, a gaming related | 0018 | offense or a crime involving fraud, theft or moral turpitude | 0019 | within ten years immediately preceding the date of submitting a | 0020 | disclosure statement required pursuant to this section; | 0021 | (3) exhibited a history of willful disregard for | 0022 | the gaming laws of this or any other state or the United States; | 0023 | or | 0024 | (4) had a permit or license issued pursuant to | 0025 | the gaming laws of this or any other state or the United States | - 76 - 0001 | permanently suspended or revoked for cause. | 0002 | H. Both the board and the executive director may | 0003 | exercise absolute discretion in exercising their respective | 0004 | appointing and employing powers. | 0005 | Section 14. [[+NEW MATERIAL+]] CONFLICTS OF INTEREST--BOARD-- | 0006 | EXECUTIVE DIRECTOR.-- | 0007 | A. In addition to all other provisions of New Mexico | 0008 | law regarding conflicts of interest of state officials and | 0009 | employees, a member of the board, the executive director, or a | 0010 | person in the immediate family of or residing in the household of | 0011 | any of the foregoing persons, shall not: | 0012 | (1) directly or indirectly, as a proprietor or | 0013 | as a member, stockholder, director or officer of a company, have | 0014 | an interest in a business engaged in gaming activities in this or | 0015 | another jurisdiction; or | 0016 | (2) accept or agree to accept any economic | 0017 | opportunity, gift, loan, gratuity, special discount, favor, | 0018 | hospitality or service having an aggregate value of one hundred | 0019 | dollars ($100) or more in any calendar year from a licensee or | 0020 | applicant. | 0021 | B. If a member of the board, the executive director | 0022 | or a person in the immediate family of or residing in the | 0023 | household of a member of the board or the executive director | 0024 | violates a provision of this section, the member of the board or | 0025 | executive director shall be removed from office. A board member | - 77 - 0001 | shall be removed by the governor, and the executive director | 0002 | shall be removed from his position by the board. | 0003 | Section 15. [[+NEW MATERIAL+]] ACTIVITIES REQUIRING | 0004 | LICENSING.-- | 0005 | A. A person shall not conduct gaming unless he is | 0006 | licensed as a gaming operator. | 0007 | B. A person shall not sell, supply or distribute any | 0008 | gaming device or associated equipment for use or play in this | 0009 | state or for use or play outside of this state from a location | 0010 | within this state unless he is licensed as a distributor or | 0011 | manufacturer, but a gaming operator licensee may sell or trade in | 0012 | a gaming device or associated equipment to a gaming operator | 0013 | licensee, distributor licensee or manufacturer licensee. | 0014 | C. A person shall not manufacture, fabricate, | 0015 | assemble, program or make modifications to a gaming device or | 0016 | associated equipment for use or play in this state or for use or | 0017 | play outside of this state from any location within this state | 0018 | unless he is a manufacturer licensee. A manufacturer licensee | 0019 | may sell, supply or distribute only the gaming devices or | 0020 | associated equipment that he manufactures, fabricates, assembles, | 0021 | programs or modifies. | 0022 | D. A gaming operator licensee or a person other than | 0023 | a manufacturer licensee or distributor licensee shall not possess | 0024 | or control a place where there is an unlicensed gaming machine. | 0025 | Any unlicensed gaming machine, except one in the possession of a | - 78 - 0001 | licensee while awaiting transfer to a gaming operator licensee | 0002 | for licensure of the machine, is subject to forfeiture and | 0003 | confiscation by any law enforcement agency or peace officer. | 0004 | E. A person shall not service or repair a gaming | 0005 | device or associated equipment unless he is licensed as a | 0006 | manufacturer, is employed by a manufacturer licensee or is a | 0007 | technician certified by a manufacturer and employed by a | 0008 | distributor licensee. | 0009 | F. A person shall not engage in any activity for | 0010 | which the board requires a license or permit without obtaining | 0011 | the license or permit. | 0012 | G. Except as provided in Subsection B of this | 0013 | section, a person shall not purchase, lease or acquire possession | 0014 | of a gaming device or associated equipment except from a licensed | 0015 | distributor or manufacturer. | 0016 | H. A distributor licensee may receive a percentage of | 0017 | the amount wagered, the net take or other measure related to the | 0018 | operation of a gaming machine as a payment pursuant to a lease or | 0019 | other arrangement for furnishing a gaming machine, but the board | 0020 | shall adopt a regulation setting the maximum allowable | 0021 | percentage. | 0022 | Section 16. [[+NEW MATERIAL+]] LICENSURE--APPLICATION.-- | 0023 | A. The board shall establish and issue the following | 0024 | categories of licenses: | 0025 | (1) manufacturer; | - 79 - 0001 | (2) distributor; | 0002 | (3) gaming operator; and | 0003 | (4) gaming machine. | 0004 | B. The board shall issue certifications of findings | 0005 | of suitability for key executives and other persons for whom | 0006 | certification is required. | 0007 | C. The board shall issue work permits for gaming | 0008 | employees. | 0009 | D. A licensee shall not be issued more than one type | 0010 | of license, but this provision does not prohibit a licensee from | 0011 | owning, leasing, acquiring or having in his possession licensed | 0012 | gaming machines if that activity is otherwise allowed by the | 0013 | provisions of the Gaming Control Act. A licensee shall not own a | 0014 | majority interest in, manage or otherwise control a holder of | 0015 | another type of license issued pursuant to the provisions of that | 0016 | act. | 0017 | E. Applicants shall apply on forms provided by the | 0018 | board and furnish all information requested by the board. | 0019 | Submission of an application constitutes consent to a credit | 0020 | check of the applicant and all persons having a substantial | 0021 | interest in the applicant and any other background investigations | 0022 | required pursuant to the Gaming Control Act or deemed necessary | 0023 | by the board. | 0024 | F. All licenses issued by the board pursuant to the | 0025 | provisions of this section shall be reviewed for renewal annually | - 80 - 0001 | unless revoked, suspended, canceled or terminated. | 0002 | G. A license shall not be transferred or assigned. | 0003 | H. The application for a license shall include: | 0004 | (1) the name of the applicant; | 0005 | (2) the location of the proposed operation; | 0006 | (3) the gaming devices to be operated, | 0007 | manufactured, distributed or serviced; | 0008 | (4) the names of all persons having a direct or | 0009 | indirect interest in the business of the applicant and the nature | 0010 | of such interest; and | 0011 | (5) such other information and details as the | 0012 | board may require. | 0013 | I. The board shall furnish to the applicant | 0014 | supplemental forms that the applicant shall complete and file | 0015 | with the application. Such supplemental forms shall require | 0016 | complete information and details with respect to the applicant's | 0017 | antecedents, habits, immediate family, character, criminal | 0018 | record, business activities, financial affairs and business | 0019 | associates, covering at least a ten-year period immediately | 0020 | preceding the date of filing of the application. | 0021 | Section 17. [[+NEW MATERIAL+]] LICENSE, CERTIFICATION AND | 0022 | WORK PERMIT FEES.-- | 0023 | A. License and other fees shall be established by | 0024 | board regulation but shall not exceed the following amounts: | 0025 | (1) manufacturer's license, twenty thousand | - 81 - 0001 | dollars ($20,000) for the initial license and five thousand | 0002 | dollars ($5,000) for annual renewal; | 0003 | (2) distributor's license, ten thousand dollars | 0004 | ($10,000) for the initial license and one thousand dollars | 0005 | ($1,000) for annual renewal; | 0006 | (3) gaming operator's license for a racetrack, | 0007 | fifty thousand dollars ($50,000) for the initial license and ten | 0008 | thousand dollars ($10,000) for annual renewal; | 0009 | (4) gaming operator's license for a nonprofit | 0010 | organization, one thousand dollars ($1,000) for the initial | 0011 | license and two hundred dollars ($200) for annual renewal; | 0012 | (5) for each separate gaming machine licensed to | 0013 | a person holding an operators license, five hundred dollars | 0014 | ($500) for the initial license and one hundred dollars ($100) for | 0015 | annual renewal; and | 0016 | (6) work permit, one hundred dollars ($100) | 0017 | annually. | 0018 | B. The board shall establish the fee for | 0019 | certifications or other actions by regulation, but no fee | 0020 | established by the board shall exceed one thousand dollars | 0021 | ($1,000), except for fees established pursuant to Paragraph (18) | 0022 | of Subsection C of Section 10 of the Gaming Control Act. | 0023 | C. All license, certification or work permit fees | 0024 | shall be paid to the board at the time and in the manner | 0025 | established by regulations of the board. | - 82 - 0001 | Section 18. [[+NEW MATERIAL+]] ACTION BY BOARD ON | 0002 | APPLICATIONS.-- | 0003 | A. A person that the board determines is qualified to | 0004 | receive a license pursuant to the provisions of the Gaming | 0005 | Control Act may be issued a license. The burden of proving | 0006 | qualifications is on the applicant. | 0007 | B. A license shall not be issued unless the board is | 0008 | satisfied that the applicant is: | 0009 | (1) a person of good moral character, honesty | 0010 | and integrity; | 0011 | (2) a person whose prior activities, criminal | 0012 | record, reputation, habits and associations do not pose a threat | 0013 | to the public interest or to the effective regulation and control | 0014 | of gaming or create or enhance the dangers of unsuitable, unfair | 0015 | or illegal practices, methods and activities in the conduct of | 0016 | gaming or the carrying on of the business and financial | 0017 | arrangements incidental thereto; and | 0018 | (3) in all other respects qualified to be | 0019 | licensed consistent with the laws of this state. | 0020 | C. A license shall not be issued unless the applicant | 0021 | has satisfied the board that: | 0022 | (1) the applicant has adequate business probity, | 0023 | competence and experience in business and gaming; | 0024 | (2) the proposed financing of the applicant is | 0025 | adequate for the nature of the proposed license and from a | - 83 - 0001 | suitable source; any lender or other source of money or credit | 0002 | that the board finds does not meet the standards set forth in | 0003 | Subsection B of this section shall be deemed unsuitable; and | 0004 | (3) the applicant is sufficiently capitalized | 0005 | under standards set by the board to conduct the business covered | 0006 | by the license. | 0007 | D. An application to receive a license, certification | 0008 | or work permit constitutes a request for a determination of the | 0009 | applicant's general moral character, integrity and ability to | 0010 | participate or engage in or be associated with gaming. Any | 0011 | written or oral statement made in the course of an official | 0012 | proceeding of the board or by a witness testifying under oath | 0013 | that is relevant to the purpose of the proceeding is absolutely | 0014 | privileged and does not impose liability for defamation or | 0015 | constitute a ground for recovery in any civil action. | 0016 | E. The board shall not issue a license or | 0017 | certification to an applicant who has been denied a license or | 0018 | certification in this state or another state, who has had a | 0019 | certification, permit or license issued pursuant to the gaming | 0020 | laws of a state or the United States permanently suspended or | 0021 | revoked for cause or who is currently under suspension or subject | 0022 | to any other limiting action in this state or another state | 0023 | involving gaming activities or licensure for gaming activities. | 0024 | F. The board shall investigate the qualifications of | 0025 | each applicant before a license, certification or work permit is | - 84 - 0001 | issued by the board and shall continue to observe and monitor the | 0002 | conduct of all licensees, work permit holders, persons certified | 0003 | as being suitable and the persons having a material involvement | 0004 | directly or indirectly with a licensee. | 0005 | G. The board has the authority to deny an application | 0006 | or limit, condition, restrict, revoke or suspend a license, | 0007 | certification or permit for any cause. | 0008 | H. After issuance, a license, certification or permit | 0009 | shall continue in effect upon proper payment of the initial and | 0010 | renewal fees, subject to the power of the board to revoke, | 0011 | suspend, condition or limit licenses, certifications and permits. | 0012 | I. The board has full and absolute power and | 0013 | authority to deny an application for any cause it deems | 0014 | reasonable. If an application is denied, the board shall prepare | 0015 | and file its written decision on which its order denying the | 0016 | application is based. | 0017 | Section 19. [[+NEW MATERIAL+]] INVESTIGATION FOR LICENSES, | 0018 | CERTIFICATIONS AND PERMITS.--The board shall initiate an | 0019 | investigation of the applicant within thirty days after an | 0020 | application is filed and supplemental information that the board | 0021 | may require is received. | 0022 | Section 20. [[+NEW MATERIAL+]] ELIGIBILITY REQUIREMENTS FOR | 0023 | COMPANIES.--In order to be eligible to receive a license, a | 0024 | company shall: | 0025 | A. be incorporated or otherwise organized and in good | - 85 - 0001 | standing in this state or incorporated or otherwise organized in | 0002 | another state, qualified to do business in this state and in good | 0003 | standing in this state and in the state of incorporation; | 0004 | B. comply with all of the requirements of the laws of | 0005 | this state pertaining to the company; | 0006 | C. maintain a ledger in the principal office of the | 0007 | company in this state, which shall: | 0008 | (1) at all times reflect the ownership according | 0009 | to company records of every class of security issued by the | 0010 | company; and | 0011 | (2) be available for inspection by the board at | 0012 | all reasonable times without notice; and | 0013 | D. file notice of all changes of ownership of all | 0014 | classes of securities issued by the company with the board within | 0015 | thirty days of the change. | 0016 | Section 21. [[+NEW MATERIAL+]] REGISTRATION WITH BOARD BY | 0017 | COMPANY APPLICANTS--REQUIRED INFORMATION.--A company applicant | 0018 | shall provide the following information to the board on forms | 0019 | provided by the board: | 0020 | A. the organization, financial structure and nature | 0021 | of the business to be operated, including the names and personal | 0022 | histories of all officers, directors and key executives; | 0023 | B. the rights and privileges acquired by the holders | 0024 | of different classes of authorized securities; | 0025 | C. the terms and conditions of all outstanding loans, | - 86 - 0001 | mortgages, trust deeds, pledges or any other indebtedness or | 0002 | security interest evidenced by a security instrument pertaining | 0003 | to the proposed gaming operation or other licensed activity in | 0004 | this state and the name and address of the person who is | 0005 | servicing the loan, mortgage, trust deed, pledge or other | 0006 | indebtedness or security interest; | 0007 | D. remuneration to persons, other than directors, | 0008 | officers and key executives, exceeding fifty thousand dollars | 0009 | ($50,000) per year; | 0010 | E. bonus and profit-sharing arrangements within the | 0011 | company; | 0012 | F. management and service contracts pertaining to the | 0013 | proposed gaming activity in this state; | 0014 | G. balance sheets and profit and loss statements for | 0015 | at least the three preceding fiscal years, or, if the company has | 0016 | not been in business for a period of three years, balance sheets | 0017 | and profit and loss statements from the time of its commencement | 0018 | of business operations and projected for three years from the | 0019 | time of its commencement of business operations. All balance | 0020 | sheets and profit and loss statements shall be certified by | 0021 | independent certified public accountants; and | 0022 | H. any further financial data that the board deems | 0023 | necessary or appropriate. | 0024 | Section 22. [[+NEW MATERIAL+]] INDIVIDUAL CERTIFICATION OF | 0025 | OFFICERS, DIRECTORS AND OTHER PERSONS.--An officer, director, | - 87 - 0001 | equity security holder of five percent or more, partner, general | 0002 | partner, limited partner, trustee or beneficiary of the company | 0003 | that holds or has applied for a license shall be certified | 0004 | individually, according to the provisions of the Gaming Control | 0005 | Act, and if in the judgment of the board the public interest is | 0006 | served by requiring any or all of the company's key executives to | 0007 | be certified, the company shall require those persons to apply | 0008 | for certification. A person who is required to be certified | 0009 | pursuant to this section shall apply for certification within | 0010 | thirty days after becoming an officer, director, equity security | 0011 | holder of five percent or more, partner, general partner, limited | 0012 | partner of five percent or more, trustee, beneficiary or key | 0013 | executive. A person who is required to be certified pursuant to | 0014 | a decision of the board shall apply for certification within | 0015 | thirty days after the board so requests. | 0016 | Section 23. [[+NEW MATERIAL+]] REQUIREMENTS IF COMPANY IS OR | 0017 | BECOMES A SUBSIDIARY--INVESTIGATIONS--RESTRICTIONS ON UNSUITABLE | 0018 | PERSONS--OTHER REQUIREMENTS.-- | 0019 | A. If the company applicant or licensee is or becomes | 0020 | a subsidiary, each nonpublicly traded holding company and | 0021 | intermediary company with respect to the subsidiary company | 0022 | shall: | 0023 | (1) qualify to do business in New Mexico; and | 0024 | (2) register with the board and furnish to the | 0025 | board the following information: | - 88 - 0001 | (a) a complete list of all beneficial owners | 0002 | of five percent or more of its equity securities, which shall be | 0003 | updated within thirty days after any change; | 0004 | (b) the names of all company officers and | 0005 | directors within thirty days of their appointment or election; | 0006 | (c) its organization, financial structure | 0007 | and nature of the business it operates; | 0008 | (d) the terms, position, rights and | 0009 | privileges of the different classes of its outstanding | 0010 | securities; | 0011 | (e) the terms on which its securities are to | 0012 | be, and during the preceding three years have been, offered; | 0013 | (f) the holder of and the terms and | 0014 | conditions of all outstanding loans, mortgages, trust deeds, | 0015 | pledges or any other indebtedness or security interest pertaining | 0016 | to the applicant or licensee; | 0017 | (g) the extent of the securities holdings or | 0018 | other interest in the holding company or intermediary company of | 0019 | all officers, directors, key executives, underwriters, partners, | 0020 | principals, trustees or any direct or beneficial owners, and the | 0021 | amount of any remuneration paid them as compensation for their | 0022 | services in the form of salary, wages, fees or by contract | 0023 | pertaining to the licensee; | 0024 | (h) remuneration to persons other than | 0025 | directors, officers and key executives exceeding fifty thousand | - 89 - 0001 | dollars ($50,000) per year; | 0002 | (i) bonus and profit-sharing arrangements | 0003 | within the holding company or intermediary company; | 0004 | (j) management and service contracts | 0005 | pertaining to the licensee or applicant; | 0006 | (k) options existing or to be created in | 0007 | respect to the company's securities or other interests; | 0008 | (l) balance sheets and profit and loss | 0009 | statements, certified by independent certified public | 0010 | accountants, for not more than the three preceding fiscal years, | 0011 | or, if the holding company or intermediary company has not been | 0012 | in existence more than three years, balance sheets and profit and | 0013 | loss statements from the time of its establishment, together with | 0014 | projections for three years from the time of its establishment; | 0015 | (m) any further financial statements | 0016 | necessary or appropriate to assist the board in making its | 0017 | determinations; and | 0018 | (n) a current annual profit and loss | 0019 | statement, a current annual balance sheet and a copy of the | 0020 | company's most recent federal income tax return within thirty | 0021 | days after the return is filed. | 0022 | B. All holders of five percent or more of the equity | 0023 | security of a holding company or intermediary company shall apply | 0024 | for a finding of suitability. | 0025 | C. The board may in its discretion perform the | - 90 - 0001 | investigations concerning the officers, directors, key | 0002 | executives, underwriters, security holders, partners, principals, | 0003 | trustees or direct or beneficial owners of any interest in any | 0004 | holding company or intermediary company as it deems necessary, | 0005 | either at the time of initial registration or at any time | 0006 | thereafter. | 0007 | D. If at any time the board finds that any person | 0008 | owning, controlling or holding with power to vote all or any part | 0009 | of any class of securities of, or any interest in, any holding | 0010 | company or intermediary company is unsuitable to be connected | 0011 | with a licensee, it shall so notify both the unsuitable person | 0012 | and the holding company or intermediary company. The unsuitable | 0013 | person shall immediately offer the securities or other interest | 0014 | to the issuing company for purchase. The company shall purchase | 0015 | the securities or interest offered upon the terms and within the | 0016 | time period ordered by the board. | 0017 | E. Beginning on the date when the board serves notice | 0018 | that a person has been found to be unsuitable pursuant to | 0019 | Subsection D of this section, it is unlawful for the unsuitable | 0020 | person to: | 0021 | (1) receive any dividend or interest upon any | 0022 | securities held in the holding company or intermediary company, | 0023 | or any dividend, payment or distribution of any kind from the | 0024 | holding company or intermediary company; | 0025 | (2) exercise, directly or indirectly or through | - 91 - 0001 | a proxy, trustee or nominee, any voting right conferred by the | 0002 | securities or interest; or | 0003 | (3) receive remuneration in any form from the | 0004 | licensee, or from any holding company or intermediary company | 0005 | with respect to that licensee, for services rendered or | 0006 | otherwise. | 0007 | F. A holding company or intermediary company subject | 0008 | to the provisions of Subsection A of this section shall not make | 0009 | any public offering of any of its equity securities unless such | 0010 | public offering has been approved by the board. | 0011 | G. This section does not apply to a holding company | 0012 | or intermediary company that is a publicly traded corporation, | 0013 | the stock of which is traded on recognized stock exchanges, which | 0014 | shall instead comply with the provisions of Section 24 of the | 0015 | Gaming Control Act. | 0016 | Section 24. [[+NEW MATERIAL+]] REGISTRATION AND CERTIFICATION | 0017 | OF PUBLICLY TRADED CORPORATIONS.-- | 0018 | A. If a company applicant or company licensee is or | 0019 | becomes a publicly traded corporation, it shall register with the | 0020 | board and provide the following information: | 0021 | (1) as of the date the company became a publicly | 0022 | traded corporation, and on any later date when the information | 0023 | changes, the names of all stockholders of record who hold five | 0024 | percent or more of the outstanding shares of any class of equity | 0025 | securities issued by the publicly traded corporation; | - 92 - 0001 | (2) the names of all officers within thirty days | 0002 | of their respective appointments; | 0003 | (3) the names of all directors within thirty | 0004 | days of their respective elections or appointments; | 0005 | (4) the organization, financial structure and | 0006 | nature of the businesses the publicly traded corporation | 0007 | operates; | 0008 | (5) the terms, position, rights and privileges | 0009 | of the different classes of securities outstanding as of the date | 0010 | the company became a publicly traded corporation; | 0011 | (6) the terms on which the company's securities | 0012 | were issued during the three years preceding the date on which | 0013 | the company became a publicly traded corporation and the terms on | 0014 | which the publicly traded corporation's securities are to be | 0015 | offered to the public as of the date the company became a | 0016 | publicly traded corporation; | 0017 | (7) the terms and conditions of all outstanding | 0018 | indebtedness and evidence of security pertaining directly or | 0019 | indirectly to the publicly traded corporation; | 0020 | (8) remuneration exceeding fifty thousand | 0021 | dollars ($50,000) per year paid to persons other than directors, | 0022 | officers and key executives who are actively and directly engaged | 0023 | in the administration or supervision of the gaming activities of | 0024 | the publicly traded corporation; | 0025 | (9) bonus and profit-sharing arrangements within | - 93 - 0001 | the publicly traded corporation directly or indirectly relating | 0002 | to its gaming activities; | 0003 | (10) management and service contracts of the | 0004 | corporation pertaining to its gaming activities; | 0005 | (11) options existing or to be created pursuant | 0006 | to its equity securities; | 0007 | (12) balance sheets and profit and loss | 0008 | statements, certified by independent certified public | 0009 | accountants, for not less than the three fiscal years preceding | 0010 | the date the company became a publicly traded corporation; | 0011 | (13) any further financial statements deemed | 0012 | necessary or appropriate by the board; and | 0013 | (14) a description of the publicly traded | 0014 | corporation's affiliated companies and intermediary companies and | 0015 | gaming licenses, permits and approvals held by those entities. | 0016 | B. The board shall consider the following criteria in | 0017 | determining whether to certify a publicly traded corporation: | 0018 | (1) the business history of the publicly traded | 0019 | corporation, including its record of financial stability, | 0020 | integrity and success of its gaming operations in other | 0021 | jurisdictions; | 0022 | (2) the current business activities and | 0023 | interests of the applicant, as well as those of its officers, | 0024 | promoters, lenders and other sources of financing, or any other | 0025 | persons associated with it; | - 94 - 0001 | (3) the current financial structure of the | 0002 | publicly traded corporation as well as changes that could | 0003 | reasonably be expected to occur to its financial structure as a | 0004 | consequence of its proposed action; | 0005 | (4) the present and proposed compensation | 0006 | arrangements between the publicly traded corporation and its | 0007 | directors, officers, key executives, securities holders, lenders | 0008 | or other sources of financing; | 0009 | (5) the equity investment, commitment or | 0010 | contribution of present or prospective directors, key executives, | 0011 | investors, lenders or other sources of financing; and | 0012 | (6) the dealings and arrangements, prospective | 0013 | or otherwise, between the publicly traded corporation and its | 0014 | investment bankers, promoters, finders or lenders and other | 0015 | sources of financing. | 0016 | C. The board may issue a certification upon receipt | 0017 | of a proper application and consideration of the criteria set | 0018 | forth in Subsection B of this section if it finds that the | 0019 | certification would not be contrary to the public interest or the | 0020 | policy set forth in the Gaming Control Act. | 0021 | Section 25. [[+NEW MATERIAL+]] FINDING OF SUITABILITY | 0022 | REQUIRED FOR DIRECTORS, OFFICERS AND KEY EXECUTIVES--REMOVAL FROM | 0023 | POSITION IF FOUND UNSUITABLE--SUSPENSION OF SUITABILITY BY | 0024 | BOARD.-- | 0025 | A. Each officer, director and key executive of a | - 95 - 0001 | holding company, intermediary company or publicly traded | 0002 | corporation that the board determines is or is to become actively | 0003 | and directly engaged in the administration or supervision of, or | 0004 | any other significant involvement with, the activities of the | 0005 | subsidiary licensee or applicant shall apply for a finding of | 0006 | suitability. | 0007 | B. If any officer, director or key executive of a | 0008 | holding company, intermediary company or publicly traded | 0009 | corporation required to be found suitable pursuant to Subsection | 0010 | A of this section fails to apply for a finding of suitability | 0011 | within thirty days after being requested to do so by the board, | 0012 | or is not found suitable by the board, or if his finding of | 0013 | suitability is revoked after appropriate findings by the board, | 0014 | the holding company, intermediary company or publicly traded | 0015 | corporation shall immediately remove that officer, director or | 0016 | key executive from any office or position in which the person is | 0017 | engaged in the administration or supervision of, or any other | 0018 | involvement with, the activities of the certified subsidiary | 0019 | until the person is thereafter found to be suitable. If the | 0020 | board suspends the finding of suitability of any officer, | 0021 | director or key executive, the holding company, intermediary | 0022 | company or publicly traded corporation shall immediately and for | 0023 | the duration of the suspension suspend that officer, director or | 0024 | key executive from performance of any duties in which he is | 0025 | actively and directly engaged in the administration or | - 96 - 0001 | supervision of, or any other involvement with, the activities of | 0002 | the subsidiary licensee. | 0003 | Section 26. [[+NEW MATERIAL+]] SUITABILITY OF INDIVIDUALS | 0004 | ACQUIRING BENEFICIAL OWNERSHIP OF VOTING SECURITY IN PUBLICLY | 0005 | TRADED CORPORATION--REPORT OF ACQUISITION--APPLICATION-- | 0006 | PROHIBITION.-- | 0007 | A. Each person who, individually or in association | 0008 | with others, acquires, directly or indirectly, beneficial | 0009 | ownership of five percent or more of any voting securities in a | 0010 | publicly traded corporation registered with the board may be | 0011 | required to be found suitable if the board has reason to believe | 0012 | that the acquisition of the ownership would otherwise be | 0013 | inconsistent with the declared policy of this state. | 0014 | B. Each person who, individually or in association | 0015 | with others, acquires, directly or indirectly, beneficial | 0016 | ownership of five percent or more of any class of voting | 0017 | securities of a publicly traded corporation certified by the | 0018 | board shall notify the board within ten days after acquiring such | 0019 | interest. | 0020 | C. Each person who, individually or in association | 0021 | with others, acquires, directly or indirectly, the beneficial | 0022 | ownership of more than ten percent of any class of voting | 0023 | securities of a publicly traded corporation certified by the | 0024 | board shall apply to the board for a finding of suitability | 0025 | within thirty days after acquiring such interest. | - 97 - 0001 | D. Institutional investors that have been exempted | 0002 | from or have received a waiver of suitability requirements | 0003 | pursuant to regulations adopted by the board are not required to | 0004 | comply with this section. | 0005 | E. Any person required by the board or by the | 0006 | provisions of this section to be found suitable shall apply for a | 0007 | finding of suitability within thirty days after the board | 0008 | requests that he do so. | 0009 | F. Any person required by the board or the provisions | 0010 | of this section to be found suitable who subsequently is found | 0011 | unsuitable by the board shall not hold directly or indirectly the | 0012 | beneficial ownership of any security of a publicly traded | 0013 | corporation that is registered with the board beyond that period | 0014 | of time prescribed by the board. | 0015 | G. The board may, but is not required to, deem a | 0016 | person qualified to hold a license or be found suitable as | 0017 | required by this section if the person currently holds a valid | 0018 | license issued by, or has been found suitable by, gaming | 0019 | regulatory authorities in another jurisdiction, provided that the | 0020 | board finds that the other jurisdiction has conducted a thorough | 0021 | investigation of the applicant and has criteria substantially | 0022 | similar to those of the board to determine when a person is to be | 0023 | found suitable or to obtain a license. | 0024 | Section 27. [[+NEW MATERIAL+]] REPORT OF PROPOSED ISSUANCE OR | 0025 | TRANSFER OF SECURITIES--REPORT OF CHANGE IN CORPORATE OFFICERS | - 98 - 0001 | AND DIRECTORS--APPROVAL OF BOARD.-- | 0002 | A. Before a company licensee, other than a publicly | 0003 | traded corporation, may issue or transfer five percent or more of | 0004 | its securities to any person, it shall file a report of its | 0005 | proposed action with the board, which report shall request the | 0006 | approval of the board. The board shall have ninety days within | 0007 | which to approve or deny the request. If the board fails to act | 0008 | in ninety days, the request is deemed approved. If the board | 0009 | denies the request, the company shall not issue or transfer five | 0010 | percent or more of its securities to the person about whom the | 0011 | request was made. | 0012 | B. A company licensee shall file a report of each | 0013 | change of the corporate officers and directors with the board | 0014 | within thirty days of the change. The board shall have ninety | 0015 | days from the date the report is filed within which to approve or | 0016 | disapprove such change. During the ninety-day period and | 0017 | thereafter, if the board does not disapprove the change, an | 0018 | officer or director is be entitled to exercise all powers of the | 0019 | office to which he was elected or appointed. | 0020 | C. A company licensee shall report to the board in | 0021 | writing any change in company personnel who have been designated | 0022 | as key executives. The report shall be made no later than thirty | 0023 | days after the change. | 0024 | D. The board may require that a company licensee | 0025 | furnish the board with a copy of its federal income tax return | - 99 - 0001 | within thirty days after the return is filed. | 0002 | Section 28. [[+NEW MATERIAL+]] GAMING OPERATOR LICENSEES-- | 0003 | GENERAL PROVISIONS--BUSINESS PLAN--PLAYER AGE LIMIT-- | 0004 | RESTRICTIONS.-- | 0005 | A. An applicant for licensure as a gaming operator | 0006 | shall submit with the application a plan for assisting in the | 0007 | prevention, education and treatment of compulsive gambling. The | 0008 | plan shall include regular educational training sessions for | 0009 | employees. Plan approval is a condition of issuance of the | 0010 | license. | 0011 | B. An applicant for licensure as a gaming operator | 0012 | shall submit with the application a proposed business plan. The | 0013 | plan shall include at least: | 0014 | (1) a floor plan of the area to be used for | 0015 | gaming machine operations; | 0016 | (2) an advertising and marketing plan; | 0017 | (3) the proposed placement and number of gaming | 0018 | machines; | 0019 | (4) a financial control plan; | 0020 | (5) a security plan; | 0021 | (6) a staffing plan for gaming machine | 0022 | operations; and | 0023 | (7) details of any proposed progressive systems. | 0024 | C. A gaming operator licensee shall be granted a | 0025 | license to operate a specific number of machines at a gaming | - 100 - 0001 | establishment identified in the license application and shall be | 0002 | granted a license for each gaming machine. | 0003 | D. A gaming operator licensee who desires to change | 0004 | the number of machines in operation at a gaming establishment | 0005 | shall apply to the board for an amendment to his license | 0006 | authorizing a change in the number of machines. | 0007 | E. Gaming machines may be available for play only in | 0008 | an area restricted to persons twenty-one years of age or older. | 0009 | F. A gaming operator licensee shall erect a permanent | 0010 | physical barrier to allow for multiple uses of the premises by | 0011 | persons of all ages. For purposes of this subsection, "permanent | 0012 | physical barrier" means a floor-to-ceiling wall separating the | 0013 | general areas from the restricted areas. The entrance to the | 0014 | area where gaming machines are located shall display a sign that | 0015 | the premises are restricted to persons twenty-one years of age or | 0016 | older. Persons under the age of twenty-one shall not enter the | 0017 | area where gaming machines are located. | 0018 | G. A gaming operator licensee shall not have | 0019 | automated teller machines on the premises. | 0020 | H. A gaming operator licensee shall not provide, | 0021 | allow, contract or arrange to provide alcohol or food for no | 0022 | charge or at reduced prices as an incentive or enticement for | 0023 | patrons to game. | 0024 | I. Only a racetrack licensed by the state racing | 0025 | commission or a nonprofit organization may apply for or be issued | - 101 - 0001 | a gaming operator's license. No other persons are qualified to | 0002 | apply for or be issued a gaming operator's license pursuant to | 0003 | the Gaming Control Act. | 0004 | Section 29. [[+NEW MATERIAL+]] GAMING OPERATOR LICENSEES-- | 0005 | SPECIAL CONDITIONS FOR RACETRACKS--NUMBER OF GAMING MACHINES-- | 0006 | DAYS AND HOURS OF OPERATIONS.-- | 0007 | A. A racetrack licensed by the state racing | 0008 | commission pursuant to the Horse Racing Act to conduct live horse | 0009 | races or simulcast races may be issued a gaming operator's | 0010 | license to operate gaming machines on its premises where live | 0011 | racing is conducted. | 0012 | B. A racetrack's gaming operator's license shall | 0013 | automatically become void if: | 0014 | (1) the racetrack no longer holds an active | 0015 | license to conduct pari-mutuel wagering; or | 0016 | (2) the racetrack fails to maintain a minimum of | 0017 | three live race days a week with at least nine live races on each | 0018 | race day during its licensed race meet in the 1997 calendar year | 0019 | and four live race days a week thereafter. | 0020 | C. A gaming operator licensee that is a racetrack may | 0021 | have not more than three hundred licensed gaming machines, but | 0022 | the number of gaming machines to be located on the licensee's | 0023 | premises shall be specified in the gaming operator's license. | 0024 | D. Gaming machines on a racetrack gaming operator | 0025 | licensee's premises may be played only on days when the racetrack | - 102 - 0001 | is either conducting live horse races or simulcasting horse race | 0002 | meets and during times established by regulation of the board, | 0003 | but the regulations shall provide for a maximum of twelve hours a | 0004 | day. | 0005 | E. Alcoholic beverages shall not be sold, served, | 0006 | delivered or consumed in the area where gaming machines are | 0007 | installed and operated on the premises of a racetrack gaming | 0008 | operator licensee. | 0009 | Section 30. [[+NEW MATERIAL+]] GAMING OPERATOR LICENSEES-- | 0010 | SPECIAL CONDITIONS FOR NONPROFIT ORGANIZATIONS--NUMBER OF GAMING | 0011 | MACHINES--DAYS AND HOURS OF OPERATIONS.-- | 0012 | A. A nonprofit organization may be issued a gaming | 0013 | operator's license to operate licensed gaming machines on its | 0014 | premises to be played only by active and auxiliary members. | 0015 | B. No more than fifteen gaming machines may be | 0016 | offered for play on the premises of a nonprofit organization | 0017 | gaming operator licensee. | 0018 | C. No gaming machine on the premises of a nonprofit | 0019 | organization gaming operator licensee may award a prize that | 0020 | exceeds four thousand dollars ($4,000). | 0021 | D. Gaming machines may be played on the premises of a | 0022 | nonprofit organization gaming operator licensee from 12:00 noon | 0023 | until 12:00 midnight every day. | 0024 | E. Alcoholic beverages shall not be sold, served, | 0025 | delivered or consumed in the area where gaming machines are | - 103 - 0001 | installed and operated on the premises of a nonprofit | 0002 | organization gaming operator licensee. | 0003 | Section 31. [[+NEW MATERIAL+]] LICENSING OF MANUFACTURERS OF | 0004 | GAMING DEVICES--EXCEPTION--DISPOSITION OF GAMING DEVICES.-- | 0005 | A. It is unlawful for any person to operate, carry | 0006 | on, conduct or maintain any form of manufacturing of any gaming | 0007 | device or associated equipment for use or play in New Mexico or | 0008 | any form of manufacturing of any gaming device or associated | 0009 | equipment in New Mexico for use or play outside of New Mexico | 0010 | without first obtaining and maintaining a manufacturer's license. | 0011 | B. If the board revokes a manufacturer's license: | 0012 | (1) no new gaming device manufactured by the | 0013 | manufacturer may be approved for use in this state; | 0014 | (2) any previously approved gaming device | 0015 | manufactured by the manufacturer is subject to revocation of | 0016 | approval if the reasons for the revocation of the license also | 0017 | apply to that gaming device; | 0018 | (3) no new gaming device or associated equipment | 0019 | made by the manufacturer may be distributed, sold, transferred or | 0020 | offered for use or play in New Mexico; and | 0021 | (4) any association or agreement between the | 0022 | manufacturer and a distributor licensee or gaming operator | 0023 | licensee in New Mexico shall be terminated. | 0024 | C. An agreement between a manufacturer licensee and a | 0025 | distributor licensee or a gaming operator licensee in New Mexico | - 104 - 0001 | shall be deemed to include a provision for its termination | 0002 | without liability for the termination on the part of either party | 0003 | upon a finding by the board that either party is unsuitable. | 0004 | Failure to include that condition in the agreement is not a | 0005 | defense in any action brought pursuant to this section to | 0006 | terminate the agreement. | 0007 | D. A gaming device shall not be used and offered for | 0008 | play by a gaming operator licensee unless it is identical in all | 0009 | material aspects to a model that has been specifically tested and | 0010 | approved by: | 0011 | (1) the board; | 0012 | (2) a laboratory selected by the board; or | 0013 | (3) gaming officials in Nevada or New Jersey | 0014 | after January 1, 1990. | 0015 | E. The board may inspect every gaming device that is | 0016 | manufactured: | 0017 | (1) for use in New Mexico; or | 0018 | (2) in New Mexico for use outside of New Mexico. | 0019 | F. The board may inspect every gaming device that is | 0020 | offered for play within New Mexico by a gaming operator licensee. | 0021 | G. The board may inspect all associated equipment | 0022 | that is manufactured and sold for use in New Mexico or | 0023 | manufactured in New Mexico for use outside of New Mexico. | 0024 | H. In addition to all other fees and charges imposed | 0025 | pursuant to the Gaming Control Act, the board may determine, | - 105 - 0001 | charge and collect from each manufacturer an inspection fee, | 0002 | which shall not exceed the actual cost of inspection and | 0003 | investigation. | 0004 | I. The board may prohibit the use of a gaming device | 0005 | by a gaming operator licensee if it finds that the gaming device | 0006 | does not meet the requirements of this section. | 0007 | Section 32. [[+NEW MATERIAL+]] LICENSING OF DISTRIBUTORS OF | 0008 | GAMING DEVICES.-- | 0009 | A. It is unlawful for any person to operate, carry | 0010 | on, conduct or maintain any form of distribution of any gaming | 0011 | device for use or play in New Mexico without first obtaining and | 0012 | maintaining a distributor's or manufacturer's license. | 0013 | B. If the board revokes a distributor's license: | 0014 | (1) no new gaming device distributed by the | 0015 | person may be approved; | 0016 | (2) any previously approved gaming device | 0017 | distributed by the distributor is subject to revocation of | 0018 | approval if the reasons for the revocation of the license also | 0019 | apply to that gaming device; | 0020 | (3) no new gaming device or associated equipment | 0021 | distributed by the distributor may be distributed, sold, | 0022 | transferred or offered for use or play in New Mexico; and | 0023 | (4) any association or agreement between the | 0024 | distributor and a gaming operator licensee shall be terminated. | 0025 | An agreement between a distributor licensee and a gaming operator | - 106 - 0001 | licensee shall be deemed to include a provision for its | 0002 | termination without liability on the part of either party upon a | 0003 | finding by the board that the other party is unsuitable. Failure | 0004 | to include that condition in the agreement is not a defense in | 0005 | any action brought pursuant to this section to terminate the | 0006 | agreement. | 0007 | C. The board may inspect every gaming device that is | 0008 | distributed for use in New Mexico. | 0009 | D. In addition to all other fees and charges imposed | 0010 | by the Gaming Control Act, the board may determine, charge and | 0011 | collect from each distributor an inspection fee, which shall not | 0012 | exceed the actual cost of inspection and investigation. | 0013 | Section 33. [[+NEW MATERIAL+]] SUITABILITY OF CERTAIN PERSONS | 0014 | FURNISHING SERVICES OR PROPERTY OR DOING BUSINESS WITH GAMING | 0015 | OPERATORS--TERMINATION OF ASSOCIATION.-- | 0016 | A. The board may determine the suitability of any | 0017 | person who furnishes services or property to a gaming operator | 0018 | licensee under any arrangement pursuant to which the person | 0019 | receives compensation based on earnings, profits or receipts from | 0020 | gaming. The board may require the person to comply with the | 0021 | requirements of the Gaming Control Act and with the regulations | 0022 | of the board. If the board determines that the person is | 0023 | unsuitable, it may require the arrangement to be terminated. | 0024 | B. The board may require a person to apply for a | 0025 | finding of suitability to be associated with a gaming operator | - 107 - 0001 | licensee if the person: | 0002 | (1) does business on the premises of a gaming | 0003 | establishment; or | 0004 | (2) provides any goods or services to a gaming | 0005 | operator licensee for compensation that the board finds to be | 0006 | grossly disproportionate to the value of the goods or services. | 0007 | C. If the board determines that a person is | 0008 | unsuitable to be associated with a gaming operator licensee, the | 0009 | association shall be terminated. Any agreement that entitles a | 0010 | business other than gaming to be conducted on the premises of a | 0011 | gaming establishment, or entitles a person other than a licensee | 0012 | to conduct business with the gaming operator licensee, is subject | 0013 | to termination upon a finding of unsuitability of the person | 0014 | seeking association with a gaming operator licensee. Every | 0015 | agreement shall be deemed to include a provision for its | 0016 | termination without liability on the part of the gaming operator | 0017 | licensee upon a finding by the board of the unsuitability of the | 0018 | person seeking or having an association with the gaming operator | 0019 | licensee. Failure to include that condition in the agreement is | 0020 | not a defense in any action brought pursuant to this section to | 0021 | terminate the agreement. If the application is not presented to | 0022 | the board within thirty days following demand or the unsuitable | 0023 | association is not terminated, the board may pursue any remedy or | 0024 | combination of remedies provided in the Gaming Control Act. | 0025 | Section 34. [[+NEW MATERIAL+]] REASONS FOR INVESTIGATIONS BY | - 108 - 0001 | BOARD--COMPLAINT BY BOARD--BOARD TO APPOINT HEARING EXAMINER-- | 0002 | REVIEW BY BOARD--ORDER OF BOARD.-- | 0003 | A. The board shall make appropriate investigations | 0004 | to: | 0005 | (1) determine whether there has been any | 0006 | violation of the Gaming Control Act or of any regulations adopted | 0007 | pursuant to that act; | 0008 | (2) determine any facts, conditions, practices | 0009 | or matters that it deems necessary or proper to aid in the | 0010 | enforcement of the Gaming Control Act or regulations adopted | 0011 | pursuant to that act; | 0012 | (3) aid in adopting regulations; | 0013 | (4) secure information as a basis for | 0014 | recommending legislation relating to the Gaming Control Act; or | 0015 | (5) determine whether a licensee is able to meet | 0016 | its financial obligations, including all financial obligations | 0017 | imposed by the Gaming Control Act, as they become due. | 0018 | B. If after an investigation the board is satisfied | 0019 | that a license, registration, finding of suitability or prior | 0020 | approval by the board of any transaction for which approval was | 0021 | required by the provisions of the Gaming Control Act should be | 0022 | limited, conditioned, suspended or revoked, or that a fine should | 0023 | be levied, the board shall initiate a hearing by filing a | 0024 | complaint and transmitting a copy of it to the licensee, together | 0025 | with a summary of evidence in its possession bearing on the | - 109 - 0001 | matter and the transcript of testimony at any investigative | 0002 | hearing conducted by or on behalf of the board. The complaint | 0003 | shall be a written statement of charges that sets forth in | 0004 | ordinary and concise language the acts or omissions with which | 0005 | the respondent is charged. It shall specify the statutes or | 0006 | regulations that the respondent is alleged to have violated but | 0007 | shall not consist merely of charges raised in the language of the | 0008 | statutes or regulations. The summary of the evidence shall be | 0009 | confidential and made available only to the respondent until such | 0010 | time as it is offered into evidence at any public hearing on the | 0011 | matter. | 0012 | C. The respondent shall file an answer within thirty | 0013 | days after service of the complaint. | 0014 | D. Upon filing the complaint the board shall appoint | 0015 | a hearing examiner to conduct further proceedings. | 0016 | E. The hearing examiner shall conduct proceedings in | 0017 | accordance with the Gaming Control Act and the regulations | 0018 | adopted by the board. At the conclusion of the proceedings, the | 0019 | hearing examiner may recommend that the board take any | 0020 | appropriate action, including revocation, suspension, limitation | 0021 | or conditioning of a license or imposition of a fine not to | 0022 | exceed fifty thousand dollars ($50,000) for each violation or any | 0023 | combination or all of the foregoing actions. | 0024 | F. The hearing examiner shall prepare a written | 0025 | decision containing his recommendation to the board and shall | - 110 - 0001 | serve it on all parties. Any respondent who disagrees with the | 0002 | hearing examiner's recommendation may request the board, within | 0003 | ten days of service of the recommendation, to review the | 0004 | recommendation. | 0005 | G. Upon proper request, the board shall review the | 0006 | recommendation. The board may remand the case to the hearing | 0007 | examiner for the presentation of additional evidence upon a | 0008 | showing of good cause why such evidence could not have been | 0009 | presented at the previous hearing. | 0010 | H. The board shall by a majority vote accept, reject | 0011 | or modify the recommendation. | 0012 | I. If the board limits, conditions, suspends or | 0013 | revokes any license or imposes a fine or limits, conditions, | 0014 | suspends or revokes any registration, finding of suitability or | 0015 | prior approval, it shall issue a written order specifying its | 0016 | action. | 0017 | J. The board's order is effective unless and until | 0018 | reversed upon judicial review, except that the board may stay its | 0019 | order pending a rehearing or judicial review upon such terms and | 0020 | conditions as it deems proper. | 0021 | Section 35. [[+NEW MATERIAL+]] EMERGENCY ORDERS OF BOARD.-- | 0022 | The board may issue an emergency order for suspension, limitation | 0023 | or conditioning of a license, registration, finding of | 0024 | suitability or work permit or may issue an emergency order | 0025 | requiring a gaming operator licensee to exclude an individual | - 111 - 0001 | licensee from the premises of the gaming operator licensee's | 0002 | gaming establishment or not to pay an individual licensee any | 0003 | remuneration for services or any profits, income or accruals on | 0004 | his investment in the licensed gaming establishment in the | 0005 | following manner: | 0006 | A. an emergency order may be issued only when the | 0007 | board believes that: | 0008 | (1) a licensee has willfully failed to report, | 0009 | pay or truthfully account for and pay over any fee imposed by the | 0010 | provisions of the Gaming Control Act or willfully attempted in | 0011 | any manner to evade or defeat any fee or payment thereof; | 0012 | (2) a licensee or gaming employee has cheated at | 0013 | a game; or | 0014 | (3) the emergency order is necessary for the | 0015 | immediate preservation of the public peace, health, safety, | 0016 | morals, good order or general welfare; | 0017 | B. the emergency order shall set forth the grounds | 0018 | upon which it is issued, including a statement of facts | 0019 | constituting the alleged emergency necessitating such action; | 0020 | C. the emergency order is effective immediately upon | 0021 | issuance and service upon the licensee or resident agent of the | 0022 | licensee or gaming employee or, in cases involving registration | 0023 | or findings of suitability, upon issuance and service upon the | 0024 | person or entity involved or resident agent of the entity | 0025 | involved; the emergency order may suspend, limit, condition or | - 112 - 0001 | take other action in relation to the license of one or more | 0002 | persons in an operation without affecting other individual | 0003 | licensees or the gaming operator licensee. The emergency order | 0004 | remains effective until further order of the board or final | 0005 | disposition of the case; and | 0006 | D. within five days after issuance of an emergency | 0007 | order, the board shall cause a complaint to be filed and served | 0008 | upon the person or entity involved; thereafter, the person or | 0009 | entity against whom the emergency order has been issued and | 0010 | served is entitled to a hearing before the board and to judicial | 0011 | review of the decision and order of the board in accordance with | 0012 | the provisions of the board's regulations. | 0013 | Section 36. [[+NEW MATERIAL+]] EXCLUSION OR EJECTION OF | 0014 | CERTAIN PERSONS FROM GAMING ESTABLISHMENTS--PERSONS INCLUDED.-- | 0015 | A. The board shall by regulation provide for the | 0016 | establishment of a list of persons who are to be excluded or | 0017 | ejected from a gaming establishment. The list may include any | 0018 | person whose presence in the gaming establishment is determined | 0019 | by the board to pose a threat to the public interest or licensed | 0020 | gaming activities. | 0021 | B. In making the determination in Subsection A of | 0022 | this section, the board may consider a: | 0023 | (1) prior conviction for a crime that is a | 0024 | felony under state or federal law, a crime involving moral | 0025 | turpitude or a violation of the gaming laws of any jurisdiction; | - 113 - 0001 | (2) violation or conspiracy to violate the | 0002 | provisions of the Gaming Control Act relating to: | 0003 | (a) the failure to disclose an interest in a | 0004 | gaming activity for which the person must obtain a license; or | 0005 | (b) willful evasion of fees or taxes; | 0006 | (3) notorious or unsavory reputation that would | 0007 | adversely affect public confidence and trust that the gaming | 0008 | industry is free from criminal or corruptive influences; or | 0009 | (4) written order of any other governmental | 0010 | agency in this state or any other state that authorizes the | 0011 | exclusion or ejection of the person from an establishment at | 0012 | which gaming is conducted. | 0013 | C. A gaming operator licensee has the right, without | 0014 | a list established by the board, to exclude or eject a person | 0015 | from its gaming establishment who poses a threat to the public | 0016 | interest or for any business reason. | 0017 | D. Race, color, creed, national origin or ancestry, | 0018 | age, disability or sex shall not be grounds for placing the name | 0019 | of a person on the list or for exclusion or ejection under | 0020 | Subsection A or C of this section. | 0021 | Section 37. [[+NEW MATERIAL+]] INTERNAL CONTROL SYSTEMS.-- | 0022 | A. Each gaming operator licensee shall adopt internal | 0023 | control systems that shall include provisions for: | 0024 | (1) safeguarding its assets and revenues, | 0025 | especially the recording of cash and evidences of indebtedness; | - 114 - 0001 | (2) making and maintaining reliable records, | 0002 | accounts and reports of transactions, operations and events, | 0003 | including reports to the board; and | 0004 | (3) a system by which the amount wagered on each | 0005 | gaming machine and the amount paid out by each gaming machine is | 0006 | recorded on a daily basis, which results may be obtained by the | 0007 | board by appropriate means as described in regulations adopted by | 0008 | the board; all manufacturers are required to have such a system | 0009 | available for gaming operators for the gaming machines that it | 0010 | supplies for use in New Mexico, and all distributors shall make | 0011 | such a system available to gaming operators. | 0012 | B. The internal control system shall be designed to | 0013 | reasonably ensure that: | 0014 | (1) assets are safeguarded; | 0015 | (2) financial records are accurate and reliable; | 0016 | (3) transactions are performed only in | 0017 | accordance with management's general or specific authorization; | 0018 | (4) transactions are recorded adequately to | 0019 | permit proper reporting of gaming revenue and of fees and taxes | 0020 | and to maintain accountability of assets; | 0021 | (5) access to assets is allowed only in | 0022 | accordance with management's specific authorization; | 0023 | (6) recorded accountability for assets is | 0024 | compared with actual assets at reasonable intervals and | 0025 | appropriate action is taken with respect to any discrepancies; | - 115 - 0001 | and | 0002 | (7) functions, duties and responsibilities are | 0003 | appropriately segregated and performed in accordance with sound | 0004 | accounting and management practices by competent, qualified | 0005 | personnel. | 0006 | C. A gaming operator licensee and an applicant for a | 0007 | gaming operator's license shall describe, in the manner the board | 0008 | may approve or require, its administrative and accounting | 0009 | procedures in detail in a written system of internal control. A | 0010 | gaming operator licensee and an applicant for a gaming operator's | 0011 | license shall submit a copy of its written system to the board. | 0012 | Each written system shall include: | 0013 | (1) an organizational chart depicting | 0014 | appropriate segregation of functions and responsibilities; | 0015 | (2) a description of the duties and | 0016 | responsibilities of each position shown on the organizational | 0017 | chart; | 0018 | (3) a detailed, narrative description of the | 0019 | administrative and accounting procedures designed to satisfy the | 0020 | requirements of Subsection A of this section; | 0021 | (4) a written statement signed by the licensee's | 0022 | chief financial officer and either the licensee's chief executive | 0023 | officer or a licensed owner attesting that the system satisfies | 0024 | the requirements of this section; | 0025 | (5) if the written system is submitted by an | - 116 - 0001 | applicant, a letter from an independent certified public | 0002 | accountant stating that the applicant's written system has been | 0003 | reviewed by the accountant and complies with the requirements of | 0004 | this section; and | 0005 | (6) other items as the board may require. | 0006 | D. The board shall adopt and publish minimum | 0007 | standards for internal control procedures. | 0008 | Section 38. [[+NEW MATERIAL+]] GAMING EMPLOYEES--ISSUANCE OF | 0009 | WORK PERMITS--REVOCATION OF WORK PERMITS.-- | 0010 | A. A person shall not be employed as a gaming | 0011 | employee unless the person holds a valid work permit issued by | 0012 | the board. | 0013 | B. A work permit shall be issued and may be revoked | 0014 | by the board as provided in regulations adopted by the board. | 0015 | C. Any person whose work permit has been denied or | 0016 | revoked may seek judicial review. | 0017 | Section 39. [[+NEW MATERIAL+]] AGE REQUIREMENT FOR PATRONS | 0018 | AND GAMING EMPLOYEES.--A person under the age of twenty-one years | 0019 | shall not: | 0020 | A. play, be allowed to play, place wagers on or | 0021 | collect winnings from, whether personally or through an agent, | 0022 | any game authorized or offered to play pursuant to the Gaming | 0023 | Control Act; or | 0024 | B. be employed as a gaming employee. | 0025 | Section 40. [[+NEW MATERIAL+]] CALCULATION OF NET TAKE-- | - 117 - 0001 | CERTAIN EXPENSES NOT DEDUCTIBLE.--In calculating net take from | 0002 | gaming machines, the actual cost to the licensee of any personal | 0003 | property distributed to a patron as the result of a legitimate | 0004 | wager may be deducted as a loss, except for travel expenses, | 0005 | food, refreshments, lodging or services. For the purposes of | 0006 | this section, "as the result of a legitimate wager" means that | 0007 | the patron must make a wager prior to receiving the personal | 0008 | property, regardless of whether the receipt of the personal | 0009 | property is dependent on the outcome of the wager. | 0010 | Section 41. [[+NEW MATERIAL+]] LIMITATIONS ON TAXES AND | 0011 | LICENSE FEES.--A political subdivision of the state shall not | 0012 | impose a license fee or tax on any licensee licensed pursuant to | 0013 | the Gaming Control Act except for the imposition of property | 0014 | taxes. | 0015 | Section 42. [[+NEW MATERIAL+]] USE OF CHIPS, TOKENS OR LEGAL | 0016 | TENDER REQUIRED FOR ALL GAMING.--All gaming shall be conducted | 0017 | with chips, tokens or other similar objects approved by the board | 0018 | or with the legal currency of the United States. | 0019 | Section 43. [[+NEW MATERIAL+]] COMMUNICATION OR DOCUMENT OF | 0020 | APPLICANT OR LICENSEE ABSOLUTELY CONFIDENTIAL--CONFIDENTIALITY | 0021 | NOT WAIVED--DISCLOSURE OF CONFIDENTIAL INFORMATION PROHIBITED.-- | 0022 | A. Any communication or document of an applicant or | 0023 | licensee is confidential and does not impose liability for | 0024 | defamation or constitute a ground for recovery in any civil | 0025 | action if it is required by: | - 118 - 0001 | (1) law or the regulations of the board; or | 0002 | (2) a subpoena issued by the board to be made or | 0003 | transmitted to the board. | 0004 | B. The confidentiality created pursuant to Subsection | 0005 | A of this section is not waived or lost because the document or | 0006 | communication is disclosed to the board. | 0007 | C. Notwithstanding the powers granted to the board by | 0008 | the Gaming Control Act, the board: | 0009 | (1) may release or disclose any confidential | 0010 | information, documents or communications provided by an applicant | 0011 | or licensee only with the prior written consent of the applicant | 0012 | or licensee or pursuant to a lawful court order after timely | 0013 | notice of the proceedings has been given to the applicant or | 0014 | licensee; | 0015 | (2) shall maintain all confidential information, | 0016 | documents and communications in a secure place accessible only to | 0017 | members of the board; and | 0018 | (3) shall adopt procedures and regulations to | 0019 | protect the confidentiality of information, documents and | 0020 | communications provided by an applicant or licensee. | 0021 | Section 44. [[+NEW MATERIAL+]] MOTION FOR RELEASE OF | 0022 | PRIVILEGED INFORMATION.--An application to a court for an order | 0023 | requiring the board to release any information declared by law to | 0024 | be confidential shall be made only by petition in district court. | 0025 | A hearing shall be held on the petition not less than ten days | - 119 - 0001 | and not more than twenty days after the date of service of the | 0002 | petition on the board, the attorney general and all persons who | 0003 | may be affected by the entry of that order. A copy of the | 0004 | petition, all papers filed in support of it and a notice of | 0005 | hearing shall be served. | 0006 | Section 45. [[+NEW MATERIAL+]] GAMING MACHINE CENTRAL | 0007 | SYSTEM.--The board shall develop and operate a central system | 0008 | into which all licensed gaming machines are connected. The | 0009 | central system shall be capable of: | 0010 | A. monitoring continuously, retrieving and auditing | 0011 | the operations, financial data and program information of the | 0012 | network; | 0013 | B. disabling from operation or play any gaming | 0014 | machine in the network that does not comply with the provisions | 0015 | of the Gaming Control Act or the regulations of the board; | 0016 | C. communicating, through program modifications or | 0017 | other means equally effective, with all gaming machines licensed | 0018 | by the board; | 0019 | D. interacting, reading, communicating and linking | 0020 | with gaming machines from a broad spectrum of manufacturers and | 0021 | associated equipment; and | 0022 | E. providing linkage to each gaming machine in the | 0023 | network at a reasonable and affordable cost to the state and the | 0024 | gaming operator licensee and allowing for program modifications | 0025 | and system updating at a reasonable cost. | - 120 - 0001 | Section 46. [[+NEW MATERIAL+]] MACHINE SPECIFICATIONS.--To be | 0002 | eligible for licensure, each gaming machine shall meet all | 0003 | specifications established by regulations of the board and: | 0004 | A. be unable to be manipulated in a manner that | 0005 | affects the random probability of winning plays or in any other | 0006 | manner determined by the board to be undesirable; | 0007 | B. have at least one mechanism that accepts coins or | 0008 | currency, but does not accept bills of denominations greater than | 0009 | twenty dollars ($20.00); | 0010 | C. be capable of having play suspended through the | 0011 | central system by the executive director until he resets the | 0012 | gaming machine; | 0013 | D. house nonresettable mechanical and electronic | 0014 | meters within a readily accessible locked area of the gaming | 0015 | machine that maintain a permanent record of all money inserted | 0016 | into the machine, all cash payouts of winnings, all refunds of | 0017 | winnings, all credits played for additional games and all credits | 0018 | won by players; | 0019 | E. be capable of printing out, at the request of the | 0020 | executive director, readings on the electronic meters of the | 0021 | machine; | 0022 | F. for machines that do not dispense coins or tokens | 0023 | directly to players, be capable of printing a ticket voucher | 0024 | stating the value of a cash prize won by the player at the | 0025 | completion of each game, the date and time of day the game was | - 121 - 0001 | played in a twenty-four-hour format showing hours and minutes, | 0002 | the machine serial number, the sequential number of the ticket | 0003 | voucher and an encrypted validation number for determining the | 0004 | validity of a winning ticket voucher; | 0005 | G. be capable of being linked to the board's central | 0006 | system for the purpose of being monitored continuously as | 0007 | required by the board; | 0008 | H. provide for a payback value for each credit | 0009 | wagered, determined over time, of not less than eighty percent or | 0010 | more than ninety-six percent; | 0011 | I. meet the standards and specifications set by laws | 0012 | or regulations of the states of Nevada and New Jersey for gaming | 0013 | machines, whichever are more stringent; | 0014 | J. offer only games authorized and examined by the | 0015 | board; and | 0016 | K. display the gaming machine license issued for that | 0017 | machine in an easily accessible place, before and during the time | 0018 | that a machine is available for use. | 0019 | Section 47. [[+NEW MATERIAL+]] POSTING OF GAMING MACHINE | 0020 | ODDS.--The odds of winning on each gaming machine shall be posted | 0021 | on or near each gaming machine. The board shall provide the | 0022 | manner in which the odds shall be determined and posted by | 0023 | regulation. | 0024 | Section 48. [[+NEW MATERIAL+]] EXAMINATION OF GAMING | 0025 | DEVICES--COST ALLOCATION.-- | - 122 - 0001 | A. The board shall examine prototypes of gaming | 0002 | devices of manufacturers seeking a license as required. | 0003 | B. The board by regulation shall require a | 0004 | manufacturer to pay the anticipated actual costs of the | 0005 | examination of a gaming device in advance and, after the | 0006 | completion of the examination, shall refund overpayments or | 0007 | charge and collect amounts sufficient to reimburse the board for | 0008 | underpayment of actual costs. | 0009 | C. The board may contract for the examination of | 0010 | gaming devices to meet the requirements of this section. | 0011 | Section 49. [[+NEW MATERIAL+]] GAMING TAX--IMPOSITION-- | 0012 | ADMINISTRATION.-- | 0013 | A. An excise tax is imposed on the privilege of | 0014 | engaging in gaming activities in the state. This tax shall be | 0015 | known as the "gaming tax". | 0016 | B. The gaming tax is an amount equal to ten percent | 0017 | of the gross receipts of manufacturer licensees from the sale or | 0018 | other transfer of gaming devices in or into the state; ten | 0019 | percent of the gross receipts of distributor licensees from the | 0020 | distribution of gaming devices in the state; and twenty-five | 0021 | percent of the net take of every gaming operator licensee. | 0022 | C. The gaming tax imposed on a licensee is in lieu of | 0023 | all state and local gross receipts taxes on that portion of the | 0024 | licensee's gross receipts attributable to gaming activities. | 0025 | D. The gaming tax shall be administered and collected | - 123 - 0001 | by the taxation and revenue department in cooperation with the | 0002 | board. The provisions of the Tax Administration Act apply to the | 0003 | collection and administration of the tax. | 0004 | E. In addition to the gaming tax, a gaming operator | 0005 | licensee that is a racetrack shall pay twenty percent of the net | 0006 | take to purses to be distributed in accordance with regulations | 0007 | adopted by the state racing commission. A racetrack gaming | 0008 | operator licensee shall spend no less than one-fourth of one | 0009 | percent of the net take of its gaming machines to fund or support | 0010 | programs for the treatment and assistance of compulsive gamblers. | 0011 | Section 50. [[+NEW MATERIAL+]] CIVIL ACTIONS TO RESTRAIN | 0012 | VIOLATIONS OF GAMING CONTROL ACT.-- | 0013 | A. The attorney general, at the request of the board, | 0014 | may institute a civil action in any court of this state against | 0015 | any person to enjoin a violation of a prohibitory provision of | 0016 | the Gaming Control Act. | 0017 | B. An action brought against a person pursuant to | 0018 | this section shall not preclude a criminal action or | 0019 | administrative proceeding against that person. | 0020 | Section 51. [[+NEW MATERIAL+]] TESTIMONIAL IMMUNITY.-- | 0021 | A. The board may order a person to answer a question | 0022 | or produce evidence and confer immunity pursuant to this section. | 0023 | If, in the course of an investigation or hearing conducted | 0024 | pursuant to the Gaming Control Act, a person refuses to answer a | 0025 | question or produce evidence on the ground that he will be | - 124 - 0001 | exposed to criminal prosecution by doing so, then the board may | 0002 | by approval of three members, after the written approval of the | 0003 | attorney general, issue an order to answer or to produce evidence | 0004 | with immunity. | 0005 | B. If a person complies with an order issued pursuant | 0006 | to Subsection A of this section, he shall be immune from having a | 0007 | responsive answer given or responsive evidence produced, or | 0008 | evidence derived from either, used to expose him to criminal | 0009 | prosecution, except that the person may be prosecuted for any | 0010 | perjury committed in the answer or production of evidence and may | 0011 | also be prosecuted for contempt for failing to act in accordance | 0012 | with the order of the board. An answer given or evidence | 0013 | produced pursuant to the grant of immunity authorized by this | 0014 | section may be used against the person granted immunity in a | 0015 | prosecution of the person for perjury or a proceeding against him | 0016 | for contempt. | 0017 | Section 52. [[+NEW MATERIAL+]] CRIME--MANIPULATION OF GAMING | 0018 | DEVICE WITH INTENT TO CHEAT.--A person who manipulates, with the | 0019 | intent to cheat, any component of a gaming device in a manner | 0020 | contrary to the designed and normal operational purpose of the | 0021 | component, including varying the pull of the handle of a slot | 0022 | machine with knowledge that the manipulation affects the outcome | 0023 | of the game or with knowledge of any event that affects the | 0024 | outcome of the game, is guilty of a fourth degree felony and | 0025 | shall be sentenced pursuant to the provisions of Section 31-18-15 | - 125 - 0001 | NMSA 1978. | 0002 | Section 53. [[+NEW MATERIAL+]] CRIME--USE OF COUNTERFEIT OR | 0003 | UNAPPROVED TOKENS, CURRENCY OR DEVICES--POSSESSION OF CERTAIN | 0004 | DEVICES, EQUIPMENT, PRODUCTS OR MATERIALS.-- | 0005 | A. A person who, in playing any game designed to be | 0006 | played with, to receive or to be operated by tokens approved by | 0007 | the board or by lawful currency of the United States, knowingly | 0008 | uses tokens other than those approved by the board, uses currency | 0009 | that is not lawful currency of the United States or uses currency | 0010 | not of the same denomination as the currency intended to be used | 0011 | in that game is guilty of a third degree felony and shall be | 0012 | sentenced pursuant to the provisions of Section 31-18-15 NMSA | 0013 | 1978. | 0014 | B. A person who knowingly has on his person or in his | 0015 | possession within a gaming establishment any device intended to | 0016 | be used by him to violate the provisions of the Gaming Control | 0017 | Act is guilty of a third degree felony and shall be sentenced | 0018 | pursuant to the provisions of Section 31-18-15 NMSA 1978. | 0019 | C. A person, other than a duly authorized employee of | 0020 | a gaming operator acting in furtherance of his employment within | 0021 | a gaming establishment, who knowingly has on his person or in his | 0022 | possession within a gaming establishment any key or device known | 0023 | by him to have been designed for the purpose of and suitable for | 0024 | opening, entering or affecting the operation of any game, dropbox | 0025 | or any electronic or mechanical device connected to the game or | - 126 - 0001 | dropbox or for removing money or other contents from them is | 0002 | guilty of a third degree felony and shall be sentenced pursuant | 0003 | to the provisions of Section 31-18-15 NMSA 1978. | 0004 | D. A person who knowingly and with intent to use them | 0005 | for cheating has on his person or in his possession any | 0006 | paraphernalia for manufacturing slugs is guilty of a third degree | 0007 | felony and shall be sentenced pursuant to the provisions of | 0008 | Section 31-18-15 NMSA 1978. As used in this subsection, | 0009 | "paraphernalia for manufacturing slugs" means the equipment, | 0010 | products and materials that are intended for use or designed for | 0011 | use in manufacturing, producing, fabricating, preparing, testing, | 0012 | analyzing, packaging, storing or concealing a counterfeit | 0013 | facsimile of tokens approved by the board or a lawful coin of the | 0014 | United States, the use of which is unlawful pursuant to the | 0015 | Gaming Control Act. The term includes: | 0016 | (1) lead or lead alloy; | 0017 | (2) molds, forms or similar equipment capable of | 0018 | producing a likeness of a gaming token or coin; | 0019 | (3) melting pots or other receptacles; | 0020 | (4) torches; and | 0021 | (5) tongs, trimming tools or other similar | 0022 | equipment. | 0023 | E. Possession of more than two items of the | 0024 | equipment, products or material described in Subsection D of this | 0025 | section permits a rebuttable inference that the possessor | - 127 - 0001 | intended to use them for cheating. | 0002 | Section 54. [[+NEW MATERIAL+]] CRIME--CHEATING.--A person who | 0003 | knowingly cheats at any game is guilty of a fourth degree felony | 0004 | and upon conviction shall be sentenced pursuant to the provisions | 0005 | of Section 31-18-15 NMSA 1978. | 0006 | Section 55. [[+NEW MATERIAL+]] CRIME--POSSESSION OF GAMING | 0007 | DEVICE MANUFACTURED, SOLD OR DISTRIBUTED IN VIOLATION OF LAW.--A | 0008 | person who knowingly possesses any gaming device that has been | 0009 | manufactured, sold or distributed in violation of the Gaming | 0010 | Control Act is guilty of a fourth degree felony and shall be | 0011 | sentenced pursuant to the provisions of Section 31-18-15 NMSA | 0012 | 1978. | 0013 | Section 56. [[+NEW MATERIAL+]] CRIME--REPORTING AND RECORD | 0014 | VIOLATIONS--PENALTY.--A person who, in an application, book or | 0015 | record required to be maintained by the Gaming Control Act or by | 0016 | a regulation adopted under that act or in a report required to be | 0017 | submitted by that act or a regulation adopted under that act, | 0018 | knowingly makes a statement or entry that is false or misleading | 0019 | or fails to maintain or make an entry the person knows is | 0020 | required to be maintained or made is guilty of a fourth degree | 0021 | felony and shall be sentenced pursuant to the provisions of | 0022 | Section 31-18-15 NMSA 1978. | 0023 | Section 57. [[+NEW MATERIAL+]] CRIME--UNLAWFUL MANUFACTURE, | 0024 | SALE, DISTRIBUTION, MARKING, ALTERING OR MODIFICATION OF DEVICES | 0025 | ASSOCIATED WITH GAMING--UNLAWFUL INSTRUCTION--PENALTY.-- | - 128 - 0001 | A. A person who manufactures, sells or distributes a | 0002 | device that is intended by him to be used to violate any | 0003 | provision of the Gaming Control Act is guilty of a fourth degree | 0004 | felony and shall be sentenced pursuant to the provisions of | 0005 | Section 31-18-15 NMSA 1978. | 0006 | B. A person who marks, alters or otherwise modifies | 0007 | any gaming device in a manner that affects the result of a wager | 0008 | by determining win or loss or alters the normal criteria of | 0009 | random selection that affects the operation of a game or that | 0010 | determines the outcome of a game is guilty of a fourth degree | 0011 | felony and shall be sentenced pursuant to the provisions of | 0012 | Section 31-18-15 NMSA 1978. | 0013 | Section 58. [[+NEW MATERIAL+]] UNDERAGE GAMING--PENALTY FOR | 0014 | PERMITTING OR PARTICIPATION.-- | 0015 | A. A person who knowingly permits an individual who | 0016 | the person knows is younger than twenty-one years of age to | 0017 | participate in gaming is guilty of a fourth degree felony and | 0018 | shall be sentenced pursuant to the provisions of Section 31-18-15 | 0019 | NMSA 1978. | 0020 | B. An individual who participates in gaming when he | 0021 | is younger than twenty-one years of age at the time of | 0022 | participation is guilty of a misdemeanor and shall be sentenced | 0023 | pursuant to the provisions of Section 31-19-1 NMSA 1978. | 0024 | Section 59. [[+NEW MATERIAL+]] CRIME--GENERAL PENALTIES FOR | 0025 | VIOLATION OF ACT.--A person who willfully violates, attempts to | - 129 - 0001 | violate or conspires to violate any of the provisions of the | 0002 | Gaming Control Act specifying prohibited acts, the classification | 0003 | of which is not specifically stated in that act, is guilty of a | 0004 | fourth degree felony and shall be sentenced pursuant to the | 0005 | provisions of Section 31-18-15 NMSA 1978. | 0006 | Section 60. [[+NEW MATERIAL+]] DETENTION AND QUESTIONING OF A | 0007 | PERSON SUSPECTED OF VIOLATING ACT--LIMITATIONS ON LIABILITY-- | 0008 | POSTING OF NOTICE.-- | 0009 | A. A gaming operator licensee or its officers, | 0010 | employees or agents may question a person in its gaming | 0011 | establishment suspected of violating any of the provisions of the | 0012 | Gaming Control Act. No gaming operator licensee or any of its | 0013 | officers, employees or agents is criminally or civilly liable: | 0014 | (1) on account of any such questioning; or | 0015 | (2) for reporting to the board or law | 0016 | enforcement authorities the person suspected of the violation. | 0017 | B. A gaming operator licensee or any of its officers, | 0018 | employees or agents who has reasonable cause for believing that | 0019 | there has been a violation of the Gaming Control Act in the | 0020 | gaming establishment by a person may detain that person in the | 0021 | gaming establishment in a reasonable manner and for a reasonable | 0022 | length of time. Such a detention does not render the gaming | 0023 | operator licensee or his officers, employees or agents criminally | 0024 | or civilly liable unless it is established by clear and | 0025 | convincing evidence detention was unreasonable under the | - 130 - 0001 | circumstances. | 0002 | C. No gaming operator licensee or its officers, | 0003 | employees or agents are entitled to the immunity from liability | 0004 | provided for in Subsection B of this section unless there is | 0005 | displayed in a conspicuous place in the gaming establishment a | 0006 | notice in boldface type clearly legible and in substantially this | 0007 | form: | 0008 | "Any gaming operator licensee or any of his officers, | 0009 | employees or agents who have reasonable cause for | 0010 | believing that any person has violated any provision | 0011 | of the Gaming Control Act prohibiting cheating in | 0012 | gaming may detain that person in the establishment.". | 0013 | Section 61. [[+NEW MATERIAL+]] ADMINISTRATIVE APPEAL OF BOARD | 0014 | ACTION.-- | 0015 | A. Any person aggrieved by an action taken by the | 0016 | board or one of its agents may request and receive a hearing for | 0017 | the purpose of reviewing the action. To obtain a hearing the | 0018 | aggrieved person shall file a request for hearing with the board | 0019 | within thirty days after the date the action is taken. Failure | 0020 | to file the request within the specified time is an irrevocable | 0021 | waiver of the right to a hearing, and the action complained of | 0022 | shall be final with no further right to review, either | 0023 | administratively or by a court. | 0024 | B. The board shall adopt procedural regulations to | 0025 | govern the procedures to be followed in administrative hearings | - 131 - 0001 | pursuant to the provisions of this section. At a minimum, the | 0002 | regulations shall provide: | 0003 | (1) for the hearings to be public; | 0004 | (2) for the appointment of a hearing officer to | 0005 | conduct the hearing and make his recommendation to the board not | 0006 | more than ten days after the completion of the hearing; | 0007 | (3) procedures for discovery; | 0008 | (4) assurance that procedural due process | 0009 | requirements are satisfied; | 0010 | (5) for the maintenance of a record of the | 0011 | hearing proceedings and assessment of costs of any transcription | 0012 | of testimony that is required for judicial review purposes; and | 0013 | (6) for the hearing to be held in Santa Fe for | 0014 | enforcement hearings and hearings on actions of statewide | 0015 | application, and to be held in the place or area affected for | 0016 | enforcement hearings and hearings on actions of limited local | 0017 | concern. | 0018 | C. Actions taken by the board after a hearing | 0019 | pursuant to the provisions of this section shall be: | 0020 | (1) written and shall state the reasons for the | 0021 | action; | 0022 | (2) made public when taken; | 0023 | (3) communicated to all persons who have made a | 0024 | written request for notification of the action taken; and | 0025 | (4) taken not more than thirty days after the | - 132 - 0001 | submission of the hearing officer's report to the board. | 0002 | Section 62. [[+NEW MATERIAL+]] JUDICIAL REVIEW OF | 0003 | ADMINISTRATIVE ACTIONS.-- | 0004 | A. Any person adversely affected by an action taken | 0005 | by the board after review pursuant to the provisions of Section | 0006 | 61 of the Gaming Control Act may appeal the action to the court | 0007 | of appeals. The appeal shall be on the record made at the | 0008 | hearing. To support his appeal, the appellant shall make | 0009 | arrangements with the board for a sufficient number of | 0010 | transcripts of the record of the hearing on which the appeal is | 0011 | based. The appellant shall pay for the preparation of the | 0012 | transcripts. | 0013 | B. On appeal, the court of appeals shall set aside | 0014 | the administrative action only if it is found to be: | 0015 | (1) arbitrary, capricious or an abuse of | 0016 | discretion; | 0017 | (2) not supported by substantial evidence in the | 0018 | whole record; or | 0019 | (3) otherwise not in accordance with law. | 0020 | Section 63. Section 3-21-1 NMSA 1978 (being Laws 1965, | 0021 | Chapter 300, Section 14-20-1, as amended by Laws 1995, Chapter | 0022 | 170, Section 4 and also by Laws 1995, Chapter 211, Section 3) is | 0023 | amended to read: | 0024 | "3-21-1. ZONING--AUTHORITY OF COUNTY OR MUNICIPALITY.-- | 0025 | A. For the purpose of promoting health, safety, | - 133 - 0001 | morals or the general welfare, a county or municipality is a | 0002 | zoning authority and may regulate and restrict within its | 0003 | jurisdiction the: | 0004 | (1) height, number of stories and size of | 0005 | buildings and other structures; | 0006 | (2) percentage of a lot that may be occupied; | 0007 | (3) size of yards, courts and other open space; | 0008 | (4) density of population; and | 0009 | (5) location and use of buildings, structures | 0010 | and land for trade, industry, residence or other purposes, | 0011 | [+including establishing areas in which structures containing legal+] | 0012 | [+gambling operations may or may not be located+].[++] | 0013 | [++] B. The county or municipal zoning authority may: | 0014 | (1) divide the territory under its jurisdiction | 0015 | into districts of such number, shape, area and form as is | 0016 | necessary to carry out the purposes of Sections 3-21-1 through | 0017 | 3-21-14 NMSA 1978; and | 0018 | (2) regulate or restrict the erection, | 0019 | construction, reconstruction, alteration, repair or use of | 0020 | buildings, structures or land in each district. All such | 0021 | regulations shall be uniform for each class or kind of buildings | 0022 | within each district, but regulation in one district may differ | 0023 | from regulation in another district. | 0024 | C. All state-licensed or state-operated community | 0025 | residences for the mentally ill or developmentally disabled | - 134 - 0001 | serving ten or fewer persons may be considered a residential use | 0002 | of property for purposes of zoning and may be permitted use in | 0003 | all districts in which residential uses are permitted generally, | 0004 | including particularly residential zones for single-family | 0005 | dwellings. | 0006 | D. A board of county commissioners of the county in | 0007 | which the greatest portion of the territory of the petitioning | 0008 | village, community, neighborhood or district lies may declare by | 0009 | ordinance that a village, community, neighborhood or district is | 0010 | a "traditional historic community" upon petition by twenty-five | 0011 | percent or more of the registered qualified electors of the | 0012 | territory within the village, community, neighborhood or district | 0013 | requesting the designation. The number of registered qualified | 0014 | electors shall be based on county records as of the date of the | 0015 | last general election. | 0016 | E. Any village, community, neighborhood or district | 0017 | that is declared a traditional historic village shall be excluded | 0018 | from the extraterritorial zone and extraterritorial zoning | 0019 | authority of any municipality whose extraterritorial zoning | 0020 | authority extends to include all or a portion of the traditional | 0021 | historic community and shall be subject to the zoning | 0022 | jurisdiction of the county in which the greatest portion of the | 0023 | traditional historic community lies." | 0024 | Section 64. A new section of the New Mexico Finance | 0025 | Authority Act is enacted to read: | - 135 - 0001 | "[[+NEW MATERIAL+]] NATIVE AMERICAN PROJECT REVOLVING FUND-- | 0002 | PURPOSE--ADMINISTRATION.-- | 0003 | A. The "Native American project revolving fund" is | 0004 | created within the authority. The fund shall be administered by | 0005 | the authority as a separate account, but may consist of such | 0006 | subaccounts as the authority deems necessary to carry out the | 0007 | purposes of the fund. The authority is authorized to establish | 0008 | procedures required to administer the fund in accordance with the | 0009 | New Mexico Finance Authority Act. | 0010 | B. Except as otherwise provided in this section, | 0011 | money from payments of principal of and interest on loans and | 0012 | payments of principal of and interest on securities held by the | 0013 | authority for Native American projects shall be deposited in the | 0014 | Native American project revolving fund. The fund shall also | 0015 | consist of any other money appropriated, distributed or otherwise | 0016 | allocated to the fund for the purpose of financing Native | 0017 | American projects. | 0018 | C. Money appropriated to pay administrative costs, | 0019 | money available for administrative costs from other sources and | 0020 | money from payments of interest on loans or securities held by | 0021 | the authority, including payments of interest on loans and | 0022 | securities held by the authority for Native American projects, | 0023 | that represents payments for administrative costs shall not be | 0024 | deposited in the Native American project revolving fund but shall | 0025 | be deposited in a separate account of the authority and may be | - 136 - 0001 | used by the authority to meet administrative costs of the | 0002 | authority. | 0003 | D. Except as otherwise provided in this section, | 0004 | money in the Native American project revolving fund is | 0005 | appropriated to the authority to make loans or grants and to | 0006 | purchase or sell securities to assist qualified Native American | 0007 | entities in financing Native American projects in accordance with | 0008 | the New Mexico Finance Authority Act. | 0009 | E. Money in the Native American project revolving | 0010 | fund not needed for immediate disbursement, including money held | 0011 | in reserve, may be deposited with the state treasurer for | 0012 | short-term investment pursuant to Section 6-10-10.1 NMSA 1978 or | 0013 | may be invested in direct and general obligations of or | 0014 | obligations fully and unconditionally guaranteed by the United | 0015 | States, obligations issued by agencies of the United States, | 0016 | obligations of this state or any political subdivision of the | 0017 | state, interest-bearing time deposits, commercial paper issued by | 0018 | corporations organized and operating in the United States and | 0019 | rated "prime" quality by a national rating service, other | 0020 | investments permitted by Section 6-10-10 NMSA 1978 or as | 0021 | otherwise provided by the trust indenture or bond resolution, if | 0022 | money is pledged for or secures payment of bonds issued by the | 0023 | authority. | 0024 | F. The authority shall establish fiscal controls and | 0025 | accounting procedures that are sufficient to assure proper | - 137 - 0001 | accounting for Native American project revolving fund payments, | 0002 | disbursements and balances. | 0003 | G. As used in this section, "qualified Native | 0004 | American entity" means an Indian nation, tribe or pueblo located | 0005 | wholly or partially in New Mexico, including a political | 0006 | subdivision or wholly owned enterprise of an Indian nation, tribe | 0007 | or pueblo, and "Native American project" means any economic | 0008 | development, utility, community facility or other infrastructure | 0009 | project for a qualified Native American entity. | 0010 | H. To implement a program to assist qualified | 0011 | entities in financing public projects, the authority may: | 0012 | (1) make loans to qualified Native American | 0013 | entities that establish one or more dedicated sources of revenue | 0014 | to repay the loan from the authority; | 0015 | (2) make, enter into and enforce all contracts | 0016 | necessary, convenient or desirable for the purposes of the | 0017 | authority or pertaining to: | 0018 | (a) a loan to a qualified Native American | 0019 | entity; | 0020 | (b) a grant to a qualified Native American | 0021 | entity; | 0022 | (c) a purchase or sale of securities | 0023 | individually or on a pooled basis; or | 0024 | (d) the performance of its duties and | 0025 | execution of any of its powers under the New Mexico Finance | - 138 - 0001 | Authority Act; | 0002 | (3) purchase or hold securities at prices and in | 0003 | a manner the authority considers advisable, giving due | 0004 | consideration to the financial capability of the qualified Native | 0005 | American entity, and sell securities acquired or held by it at | 0006 | prices without relation to cost and in a manner the authority | 0007 | considers advisable; | 0008 | (4) prescribe the form of application or | 0009 | procedure required of a qualified Native American entity for a | 0010 | loan or purchase of its securities, fix the terms and conditions | 0011 | of the loan or purchase and enter into agreements with qualified | 0012 | entities with respect to loans or purchases; | 0013 | (5) charge for its costs and services in review | 0014 | or consideration of a proposed loan to a qualified Native | 0015 | American entity or purchase by the authority of securities, | 0016 | whether or not the loan is made or the securities purchased; | 0017 | (6) fix and establish terms and provisions with | 0018 | respect to: | 0019 | (a) a purchase of securities by the | 0020 | authority, including date and maturities of the securities; | 0021 | (b) redemption or payment before maturity; | 0022 | and | 0023 | (c) any other matters that in connection | 0024 | with the purchase are necessary, desirable or advisable in the | 0025 | judgment of the authority; | - 139 - 0001 | (7) to the extent permitted under its contracts | 0002 | with the holders of bonds of the authority, consent to | 0003 | modification of the rate of interest, time and payment of | 0004 | installment of principal or interest, security or any other term | 0005 | of a bond, contract or agreement of any kind to which the | 0006 | authority is a party; | 0007 | (8) in connection with the purchase of any | 0008 | securities, consider the ability of the qualified Native American | 0009 | entity to secure financing from other sources and the costs of | 0010 | that financing and the particular public project or purpose to be | 0011 | financed or refinanced with the proceeds of the securities to be | 0012 | purchased by the authority; | 0013 | (9) acquire and hold title to or leasehold | 0014 | interest in real and personal property and to sell, convey or | 0015 | lease that property for the purpose of satisfying a default or | 0016 | enforcing the provisions of a loan agreement; and | 0017 | (10) in the event of default by a qualified | 0018 | entity, enforce its rights by suit or mandamus or may use all | 0019 | other available remedies under state law. | 0020 | I. The authority may issue and sell bonds in | 0021 | principal amounts it considers necessary to provide sufficient | 0022 | funds for any purpose of this section, including: | 0023 | (1) purchase of securities; | 0024 | (2) making loans through the purchase of | 0025 | securities; | - 140 - 0001 | (3) making grants for Native American projects; | 0002 | (4) the construction of Native American | 0003 | projects; | 0004 | (5) the payment, funding or refunding of the | 0005 | principal of or interest or redemption premiums on bonds issued | 0006 | by the authority, whether the bonds or interest to be paid, | 0007 | funded or refunded have or have not become due; | 0008 | (6) the establishment or increase of reserves or | 0009 | sinking funds to secure or to pay principal, premium, if any, or | 0010 | interest on bonds; and | 0011 | (7) all other costs or expenses of the authority | 0012 | incident to and necessary or convenient to carry out the | 0013 | provisions of this section. | 0014 | J. Except as otherwise provided in this section, all | 0015 | bonds or other obligations issued by the authority shall be | 0016 | obligations of the authority payable solely from the revenues, | 0017 | income, fees, charges or funds of the authority that may, | 0018 | pursuant to the provisions of the New Mexico Finance Authority | 0019 | Act, be pledged to the payment of such obligations, and the bonds | 0020 | or other obligations shall not create an obligation, debt or | 0021 | liability of the state. No breach of any pledge, obligation or | 0022 | agreement of the authority shall impose a pecuniary liability or | 0023 | a charge upon the general credit or taxing power of the state or | 0024 | any political subdivision of the state. | 0025 | K. As security for the payment of the principal, | - 141 - 0001 | interest or premium, if any, on bonds issued by the authority, | 0002 | the authority is authorized to pledge, transfer and assign: | 0003 | (1) any obligation of a qualified Native | 0004 | American entity that is payable to the authority; | 0005 | (2) the security for the qualified Native | 0006 | American entity's obligations; | 0007 | (3) money in the Native American project | 0008 | revolving fund; | 0009 | (4) any grant, subsidy or contribution from the | 0010 | United States or any of its agencies or instrumentalities; or | 0011 | (5) any income, revenues, funds or other money | 0012 | of the authority from any other source authorized for such | 0013 | pledge, transfer or assignment. | 0014 | L. Bonds issued by the authority pursuant to this | 0015 | section may be issued in accordance with the New Mexico Finance | 0016 | Authority Act." | 0017 | Section 65. A new section of the Tax Administration Act is | 0018 | enacted to read: | 0019 | "[[+NEW MATERIAL+]] DISTRIBUTION OF REVENUE RECEIVED PURSUANT | 0020 | TO INDIAN GAMING REVENUE-SHARING AGREEMENT.-- | 0021 | A. A distribution of thirty-three and one-third | 0022 | percent of the net receipts attributable to amounts received by | 0023 | the state pursuant to the provisions of any Indian gaming | 0024 | revenue-sharing agreement shall be made to the Native American | 0025 | project revolving fund administered by the New Mexico finance | - 142 - 0001 | authority. | 0002 | B. The state pledges to and agrees with the holders | 0003 | of any bonds or notes issued by the New Mexico finance authority | 0004 | and payable from the revenue source specified in Subsection A of | 0005 | this section that it will not limit, reduce or alter the | 0006 | distribution of the specified net receipts until the bonds or | 0007 | notes with any interest are fully met and discharged. The New | 0008 | Mexico finance authority is authorized to include this pledge and | 0009 | agreement of the state in any agreement with the holders of the | 0010 | bonds or notes." | 0011 | Section 66. Section 7-1-2 NMSA 1978 (being Laws 1965, | 0012 | Chapter 248, Section 2, as amended) is amended to read: | 0013 | "7-1-2. APPLICABILITY.--The Tax Administration Act applies | 0014 | to and governs: | 0015 | A. the administration and enforcement of the | 0016 | following taxes or tax acts as they now exist or may hereafter be | 0017 | amended: | 0018 | (1) Income Tax Act; | 0019 | (2) Withholding Tax Act; | 0020 | (3) Gross Receipts and Compensating Tax Act and | 0021 | any state gross receipts tax; | 0022 | (4) Liquor Excise Tax Act; | 0023 | (5) Local Liquor Excise Tax Act; | 0024 | [[-(6) Banking and Financial Corporations Tax Act;-] | 0025 | [-(7)-]] [+(6)+] any municipal local option gross | - 143 - 0001 | receipts tax; | 0002 | [[-(8)-]] [+(7)+] any county local option gross receipts | 0003 | tax; | 0004 | [[-(9)-]] [+(8)+] Special Fuels Supplier Tax Act; | 0005 | [[-(10)-]] [+(9)+] Gasoline Tax Act; | 0006 | [[-(11)-]] [+(10)+] petroleum products loading fee, | 0007 | which fee shall be considered a tax for the purpose of the Tax | 0008 | Administration Act; | 0009 | [[-(12)-]] [+(11)+] Alternative Fuel Tax Act; | 0010 | [[-(13)-]] [+(12)+] Cigarette Tax Act; | 0011 | [[-(14)-]] [+(13)+] Estate Tax Act; | 0012 | [[-(15)-]] [+(14)+] Railroad Car Company Tax Act; | 0013 | [[-(16)-]] [+(15)+] Investment Credit Act; | 0014 | [[-(17)-]] [+(16)+] Corporate Income and Franchise Tax | 0015 | Act; | 0016 | [[-(18)-]] [+(17)+] Uniform Division of Income for Tax | 0017 | Purposes Act; | 0018 | [[-(19)-]] [+(18)+] Multistate Tax Compact; | 0019 | [[-(20)-]] [+(19)+] Tobacco Products Tax Act; | 0020 | [[-(21)-]] [+(20)+] Filmmaker's Credit Act; and | 0021 | [[-(22)-]] [+(21)+] the telecommunications relay service | 0022 | surcharge imposed by Section 63-9F-11 NMSA 1978, which surcharge | 0023 | shall be considered a tax for the purposes of the Tax | 0024 | Administration Act; | 0025 | B. the administration and enforcement of the | - 144 - 0001 | following taxes, surtaxes, advanced payments or tax acts as they | 0002 | now exist or may hereafter be amended: | 0003 | (1) Resources Excise Tax Act; | 0004 | (2) Severance Tax Act; | 0005 | (3) any severance surtax; | 0006 | (4) Oil and Gas Severance Tax Act; | 0007 | (5) Oil and Gas Conservation Tax Act; | 0008 | (6) Oil and Gas Emergency School Tax Act; | 0009 | (7) Oil and Gas Ad Valorem Production Tax Act; | 0010 | (8) Natural Gas Processors Tax Act; | 0011 | (9) Oil and Gas Production Equipment Ad Valorem | 0012 | Tax Act; | 0013 | (10) Copper Production Ad Valorem Tax Act; and | 0014 | (11) any advance payment required to be made by | 0015 | any act specified in this subsection, which advance payment shall | 0016 | be considered a tax for the purposes of the Tax Administration | 0017 | Act; | 0018 | C. the administration and enforcement of the | 0019 | following taxes, surcharges, fees or acts as they now exist or | 0020 | may hereafter be amended: | 0021 | (1) Weight Distance Tax Act; | 0022 | (2) Special Fuels Tax Act; | 0023 | (3) the workers' compensation fee authorized by | 0024 | Section 52-5-19 NMSA 1978, which fee shall be considered a tax | 0025 | for purposes of the Tax Administration Act; | - 145 - 0001 | (4) Uniform Unclaimed Property Act; | 0002 | (5) 911 emergency surcharge and the network and | 0003 | database surcharge, which surcharges shall be considered taxes | 0004 | for purposes of the Tax Administration Act; | 0005 | (6) the solid waste assessment fee authorized by | 0006 | the Solid Waste Act, which fee shall be considered a tax for | 0007 | purposes of the Tax Administration Act; [[-and-]] | 0008 | (7) the water conservation fee imposed by | 0009 | Section 74-1-13 NMSA 1978, which fee shall be considered a tax | 0010 | for the purposes of the Tax Administration Act; and | 0011 | [+(8) the gaming tax imposed pursuant to the+] | 0012 | [+Gaming Control Act; and+] | 0013 | D. the administration and enforcement of all other | 0014 | laws, with respect to which the department is charged with | 0015 | responsibilities pursuant to the Tax Administration Act, but only | 0016 | to the extent that the other laws do not conflict with the Tax | 0017 | Administration Act." | 0018 | Section 67. A new section of the Tax Administration Act is | 0019 | enacted to read: | 0020 | "[[+NEW MATERIAL+]] DISTRIBUTION OF PORTION OF GAMING TAX.--A | 0021 | distribution of ten percent of the net receipts attributable to | 0022 | amounts received by the department as gaming tax revenue shall be | 0023 | distributed to the tourism fund to be expended in accordance with | 0024 | the provisions establishing that fund." | 0025 | Section 68. A new section of the Tourism Department Act is | - 146 - 0001 | enacted to read: | 0002 | "[[+NEW MATERIAL+]] TOURISM FUND CREATED--EXPENDITURE.--There | 0003 | is created in the state treasury the "tourism fund". Money | 0004 | deposited in the fund is appropriated to the department to | 0005 | develop and implement the state's five-year tourism plan pursuant | 0006 | to the Tourism Department Act in fiscal year 1998. Unencumbered | 0007 | or unexpended balances remaining in the fund at the end of a | 0008 | fiscal year after fiscal year 1998 shall revert to the general | 0009 | fund." | 0010 | [+ +]Section 69. Section 10-15-1 NMSA 1978 (being Laws 1974, | 0011 | Chapter 91, Section 1, as amended) is amended to read: | 0012 | "10-15-1. FORMATION OF PUBLIC POLICY--PROCEDURES FOR OPEN | 0013 | MEETINGS--EXCEPTIONS AND PROCEDURES FOR CLOSED MEETINGS.-- | 0014 | A. In recognition of the fact that a representative | 0015 | government is dependent upon an informed electorate, it is | 0016 | declared to be public policy of this state that all persons are | 0017 | entitled to the greatest possible information regarding the | 0018 | affairs of government and the official acts of those officers and | 0019 | employees who represent them. The formation of public policy or | 0020 | the conduct of business by vote shall not be conducted in closed | 0021 | meeting. All meetings of any public body except the legislature | 0022 | and the courts shall be public meetings, and all persons so | 0023 | desiring shall be permitted to attend and listen to the | 0024 | deliberations and proceedings. Reasonable efforts shall be made | 0025 | to accommodate the use of audio and video recording devices. | - 147 - 0001 | B. All meetings of a quorum of members of any board, | 0002 | commission, administrative adjudicatory body or other | 0003 | policymaking body of any state agency, any agency or authority of | 0004 | any county, municipality, district or any political subdivision, | 0005 | held for the purpose of formulating public policy, including the | 0006 | development of personnel policy, rules, regulations or | 0007 | ordinances, discussing public business or for the purpose of | 0008 | taking any action within the authority of or the delegated | 0009 | authority of any board, commission or other policymaking body are | 0010 | declared to be public meetings open to the public at all times, | 0011 | except as otherwise provided in the constitution of New Mexico or | 0012 | the Open Meetings Act. No public meeting once convened that is | 0013 | otherwise required to be open pursuant to the Open Meetings Act | 0014 | shall be closed or dissolved into small groups or committees for | 0015 | the purpose of permitting the closing of the meeting. | 0016 | C. If otherwise allowed by law or rule of the public | 0017 | body, a member of a public body may participate in a meeting of | 0018 | the public body by means of a conference telephone or other | 0019 | similar communications equipment when it is otherwise difficult | 0020 | or impossible for the member to attend the meeting in person, | 0021 | provided that each member participating by conference telephone | 0022 | can be identified when speaking, all participants are able to | 0023 | hear each other at the same time and members of the public | 0024 | attending the meeting are able to hear any member of the public | 0025 | body who speaks during the meeting. | - 148 - 0001 | D. Any meetings at which the discussion or adoption | 0002 | of any proposed resolution, rule, regulation or formal action | 0003 | occurs and at which a majority or quorum of the body is in | 0004 | attendance, and any closed meetings, shall be held only after | 0005 | reasonable notice to the public. The affected body shall | 0006 | determine at least annually in a public meeting what notice for a | 0007 | public meeting is reasonable when applied to that body. That | 0008 | notice shall include broadcast stations licensed by the federal | 0009 | communications commission and newspapers of general circulation | 0010 | that have provided a written request for such notice. | 0011 | E. A public body may recess and reconvene a meeting | 0012 | to a day subsequent to that stated in the meeting notice if, | 0013 | prior to recessing, the public body specifies the date, time and | 0014 | place for continuation of the meeting and, immediately following | 0015 | the recessed meeting, posts notice of the date, time and place | 0016 | for the reconvened meeting on or near the door of the place where | 0017 | the original meeting was held and in at least one other location | 0018 | appropriate to provide public notice of the continuation of the | 0019 | meeting. Only matters appearing on the agenda of the original | 0020 | meeting may be discussed at the reconvened meeting. | 0021 | F. Meeting notices shall include an agenda containing | 0022 | a list of specific items of business to be discussed or | 0023 | transacted at the meeting or information on how the public may | 0024 | obtain a copy of such an agenda. Except in the case of an | 0025 | emergency, the agenda shall be available to the public at least | - 149 - 0001 | twenty-four hours prior to the meeting. Except for emergency | 0002 | matters, a public body shall take action only on items appearing | 0003 | on the agenda. For purposes of this subsection, an "emergency" | 0004 | refers to unforeseen circumstances that, if not addressed | 0005 | immediately by the public body, will likely result in injury or | 0006 | damage to persons or property or substantial financial loss to | 0007 | the public body. | 0008 | G. The board, commission or other policymaking body | 0009 | shall keep written minutes of all its meetings. The minutes | 0010 | shall include at a minimum the date, time and place of the | 0011 | meeting, the names of members in attendance and those absent, the | 0012 | substance of the proposals considered and a record of any | 0013 | decisions and votes taken that show how each member voted. All | 0014 | minutes are open to public inspection. Draft minutes shall be | 0015 | prepared within ten working days after the meeting and shall be | 0016 | approved, amended or disapproved at the next meeting where a | 0017 | quorum is present. Minutes shall not become official until | 0018 | approved by the policymaking body. | 0019 | H. The provisions of Subsections A, B and G of this | 0020 | section do not apply to: | 0021 | (1) meetings pertaining to issuance, suspension, | 0022 | renewal or revocation of a license, except that a hearing at | 0023 | which evidence is offered or rebutted shall be open. All final | 0024 | actions on the issuance, suspension, renewal or revocation of a | 0025 | license shall be taken at an open meeting; | - 150 - 0001 | (2) limited personnel matters; provided that for | 0002 | purposes of the Open Meetings Act, "limited personnel matters" | 0003 | means the discussion of hiring, promotion, demotion, dismissal, | 0004 | assignment or resignation of or the investigation or | 0005 | consideration of complaints or charges against any individual | 0006 | public employee; provided further that this subsection is not to | 0007 | be construed as to exempt final actions on personnel from being | 0008 | taken at open public meetings, nor does it preclude an aggrieved | 0009 | public employee from demanding a public hearing. Judicial | 0010 | candidates interviewed by any commission shall have the right to | 0011 | demand an open interview; | 0012 | (3) deliberations by a public body in connection | 0013 | with an administrative adjudicatory proceeding. For purposes of | 0014 | this paragraph, an "administrative adjudicatory proceeding" means | 0015 | a proceeding brought by or against a person before a public body | 0016 | in which individual legal rights, duties or privileges are | 0017 | required by law to be determined by the public body after an | 0018 | opportunity for a trial-type hearing. Except as otherwise | 0019 | provided in this section, the actual administrative adjudicatory | 0020 | proceeding at which evidence is offered or rebutted and any final | 0021 | action taken as a result of the proceeding shall occur in an open | 0022 | meeting; | 0023 | (4) the discussion of personally identifiable | 0024 | information about any individual student, unless the student, his | 0025 | parent or guardian requests otherwise; | - 151 - 0001 | (5) meetings for the discussion of bargaining | 0002 | strategy preliminary to collective bargaining negotiations | 0003 | between the policymaking body and a bargaining unit representing | 0004 | the employees of that policymaking body and collective bargaining | 0005 | sessions at which the policymaking body and the representatives | 0006 | of the collective bargaining unit are present; | 0007 | (6) that portion of meetings at which a decision | 0008 | concerning purchases in an amount exceeding two thousand five | 0009 | hundred dollars ($2,500) that can be made only from one source | 0010 | and that portion of meetings at which the contents of competitive | 0011 | sealed proposals solicited pursuant to the Procurement Code are | 0012 | discussed during the contract negotiation process. The actual | 0013 | approval of purchase of the item or final action regarding the | 0014 | selection of a contractor shall be made in an open meeting; | 0015 | (7) meetings subject to the attorney-client | 0016 | privilege pertaining to threatened or pending litigation in which | 0017 | the public body is or may become a participant; | 0018 | (8) meetings for the discussion of the purchase, | 0019 | acquisition or disposal of real property or water rights by the | 0020 | public body; [[-and-]] | 0021 | (9) those portions of meetings of committees or | 0022 | boards of public hospitals that receive less than fifty percent | 0023 | of their operating budget from direct public funds and | 0024 | appropriations where strategic and long-range business plans are | 0025 | discussed; [+and+] | - 152 - 0001 | [+ (10) that portion of a meeting of the gaming+] | 0002 | [+control board dealing with information made confidential pursuant+] | 0003 | [+to the provisions of the Gaming Control Act+]. | 0004 | I. If any meeting is closed pursuant to the | 0005 | exclusions contained in Subsection H of this section, the | 0006 | closure: | 0007 | (1) if made in an open meeting, shall be | 0008 | approved by a majority vote of a quorum of the policymaking body; | 0009 | the authority for the closure and the subject to be discussed | 0010 | shall be stated with reasonable specificity in the motion calling | 0011 | for the vote on a closed meeting; the vote shall be taken in an | 0012 | open meeting; and the vote of each individual member shall be | 0013 | recorded in the minutes. Only those subjects announced or voted | 0014 | upon prior to closure by the policymaking body may be discussed | 0015 | in a closed meeting; and | 0016 | (2) if called for when the policymaking body is | 0017 | not in an open meeting, shall not be held until public notice, | 0018 | appropriate under the circumstances, stating the specific | 0019 | provision of the law authorizing the closed meeting and stating | 0020 | with reasonable specificity the subject to be discussed is given | 0021 | to the members and to the general public. | 0022 | J. Following completion of any closed meeting, the | 0023 | minutes of the open meeting that was closed or the minutes of the | 0024 | next open meeting if the closed meeting was separately scheduled | 0025 | shall state that the matters discussed in the closed meeting were | - 153 - 0001 | limited only to those specified in the motion for closure or in | 0002 | the notice of the separate closed meeting. This statement shall | 0003 | be approved by the public body under Subsection G of this section | 0004 | as part of the minutes." | 0005 | Section 70. Section 30-19-1 NMSA 1978 (being Laws 1963, | 0006 | Chapter 303, Section 19-1, as amended) is amended to read: | 0007 | "30-19-1. DEFINITIONS RELATING TO GAMBLING.--As used in | 0008 | Chapter 30, Article 19 NMSA 1978: | 0009 | A. "antique gambling device" means a gambling device | 0010 | twenty-five years of age or older and substantially in original | 0011 | condition that is not used for gambling or commercial gambling or | 0012 | located in a gambling place; | 0013 | B. "bet" means a bargain in which the parties agree | 0014 | that, dependent upon chance, even though accompanied by some | 0015 | skill, one stands to win or lose anything of value specified in | 0016 | the agreement. A bet does not include: | 0017 | (1) bona fide business transactions that are | 0018 | valid under the law of contracts, including [[-without limitation-]]: | 0019 | (a) contracts for the purchase or sale, at a | 0020 | future date, of securities or other commodities; and | 0021 | (b) agreements to compensate for loss caused | 0022 | by the happening of the chance, including [[-without limitation-]] | 0023 | contracts for indemnity or guaranty and life or health and | 0024 | accident insurance; | 0025 | (2) offers of purses, prizes or premiums to the | - 154 - 0001 | actual contestants in any bona fide contest for the determination | 0002 | of skill, speed, strength or endurance or to the bona fide owners | 0003 | of animals or vehicles entered in such contest; | 0004 | (3) a lottery as defined in this section; or | 0005 | (4) betting otherwise permitted by law; | 0006 | [[-C. "lottery" means an enterprise other than the New-] | 0007 | [-Mexico state lottery established and operated pursuant to the New-] | 0008 | [-Mexico Lottery Act wherein, for a consideration, the participants-] | 0009 | [-are given an opportunity to win a prize, the award of which is-] | 0010 | [-determined by chance, even though accompanied by some skill. As-] | 0011 | [-used in this subsection, "consideration" means anything of-] | 0012 | [-pecuniary value required to be paid to the promoter in order to-] | 0013 | [-participate in such enterprise;-] | 0014 | [-D.-]] [+C.+] "gambling device" means a contrivance other | 0015 | than an antique gambling device [+that is not licensed for use+] | 0016 | [+pursuant to the Gaming Control Act and+] that, for a consideration, | 0017 | affords the player an opportunity to obtain anything of value, | 0018 | the award of which is determined by chance, even though | 0019 | accompanied by some skill, [[-and-]] whether or not the prize is | 0020 | automatically paid by the device; [[-and-]] | 0021 | [[-E.-]] [+D.+] "gambling place" means [[-any-]] [+a+] building or | 0022 | tent, [[-any-]] [+a+] vehicle, whether self-propelled or not, or [[-any-]] [+a+] | 0023 | room within any of them [+that is not within the premises of a+] | 0024 | [+person licensed as a lottery retailer or that is not licensed+] | 0025 | [+pursuant to the Gaming Control Act+], one of whose principal uses | - 155 - 0001 | is: | 0002 | (1) making and settling of bets; | 0003 | (2) receiving, holding, recording or forwarding | 0004 | bets or offers to bet; | 0005 | (3) conducting lotteries; or | 0006 | (4) playing gambling devices; [+and+] | 0007 | [+E. "lottery" means an enterprise wherein, for a+] | 0008 | [+consideration, the participants are given an opportunity to win a+] | 0009 | [+prize, the award of which is determined by chance, even though+] | 0010 | [+accompanied by some skill. "Lottery" does not include the New+] | 0011 | [+Mexico state lottery established and operated pursuant to the New+] | 0012 | [+Mexico Lottery Act or gaming that is licensed and operated+] | 0013 | [+pursuant to the Gaming Control Act. As used in this subsection,+] | 0014 | [+"consideration" means anything of pecuniary value required to be+] | 0015 | [+paid to the promoter in order to participate in a gambling or+] | 0016 | [+gaming enterprise+]." | 0017 | Section 71. A new section of Chapter 40, Article 3 NMSA | 0018 | 1978 is enacted to read: | 0019 | "[[+NEW MATERIAL+]] GAMBLING DEBTS ARE SEPARATE DEBTS OF | 0020 | SPOUSE INCURRING DEBT.--A gambling debt incurred by a married | 0021 | person as a result of legal gambling is a separate debt of the | 0022 | spouse incurring the debt." | 0023 | Section 72. Section 60-7A-19 NMSA 1978 (being Laws 1981, | 0024 | Chapter 39, Section 96) is amended to read: | 0025 | "60-7A-19. COMMERCIAL GAMBLING ON LICENSED PREMISES.-- | - 156 - 0001 | A. It is a violation of the Liquor Control Act for a | 0002 | licensee to knowingly allow commercial gambling on the licensed | 0003 | premises. | 0004 | B. In addition to any criminal penalties, any person | 0005 | who violates Subsection A of this section may have his license | 0006 | suspended or revoked or a fine imposed, or both, pursuant to the | 0007 | Liquor Control Act. | 0008 | C. [[-For purposes of-]] [+As used in+] this section: | 0009 | [+(1)+] "commercial gambling" means: | 0010 | [[-(1)-]] [+(a)+] participating in the earnings of | 0011 | or operating a gambling place; | 0012 | [[-(2)-]] [+(b)+] receiving, recording or forwarding | 0013 | bets or offers to bet; | 0014 | [[-(3)-]] [+(c)+] possessing facilities with the | 0015 | intent to receive, record or forward bets or offers to bet; | 0016 | [[-(4)-]] [+(d)+] for gain, becoming a custodian of | 0017 | anything of value bet or offered to be bet; | 0018 | [[-(5)-]] [+(e)+] conducting a lottery where both | 0019 | the consideration and the prize are money, or whoever with intent | 0020 | to conduct a lottery possesses facilities to do so; or | 0021 | [[-(6)-]] [+(f)+] setting up for use for the purpose | 0022 | of gambling, or collecting the proceeds of, any gambling device | 0023 | or game; [+and+] | 0024 | [+(2) "commercial gambling" does not mean:+] | 0025 | [+ (a) activities authorized pursuant to the+] | - 157 - 0001 | [+New Mexico Lottery Act;+] | 0002 | [+ (b) the conduct of activities pursuant to+] | 0003 | [+Subsection D of Section 30-19-6 NMSA 1978; and+] | 0004 | [+ (c) gaming authorized pursuant to the Gaming+] | 0005 | [+Control Act on the premises of a gaming operator licensee+] | 0006 | [+licensed pursuant to that act+]." | 0007 | Section 73. SEVERABILITY.--If any part or application of | 0008 | the Gaming Control Act is held invalid, the remainder or its | 0009 | application to other situations or persons shall not be affected. | 0010 | Section 74. EMERGENCY.--It is necessary for the public | 0011 | peace, health and safety that this act take effect immediately. | 0012 | - 158 - | 0013 | |