Mass. General Laws c.23N § 16

Noncompliance with the provisions of this chapter; penalties; judicial review

Updates

• Added by St.2022, c.173, § 5, effective August 10, 2022.

Section 16

(a) The commission may assess a civil administrative penalty on an operator who fails to comply with any provision of this chapter, house rules or any regulation or order adopted by the commission; provided, however, that the noncompliance shall have occurred after the commission has given such operator written notice of the noncompliance and the time stated in the notice for coming into compliance has elapsed; provided further, that the commission may assess a penalty without providing written notice if the failure to comply: (i) was part of a pattern of noncompliance and not an isolated instance; (ii) was willful or neglectful and not the result of error; (iii) resulted in a significant breach to the integrity of the operator or the sports wagering laws of the commonwealth; or (iv) consisted of failure to promptly report to the commission any knowledge of evidence or circumstances that would cause a reasonable person to believe that a violation of this chapter has been committed. The civil administrative penalty shall be in addition to any other civil penalty that may be prescribed by law.

(b)  For the purpose of determining whether such noncompliance was part of a pattern of noncompliance and not an isolated instance, the commission shall consider, but not be limited to; (i) whether the commission had previously notified the operator of such noncompliance on more than 1 occasion during the previous month or of any noncompliance with the same provision of a law, regulation, order, license or approval as the current noncompliance during the previous 6-month period; or (ii) whether the current and previous instances of noncompliance, considered together, indicate a potential threat to the integrity of the operator and sports wagering in the commonwealth or an interference with the commission’s ability to efficiently and effectively regulate sports wagering in the commonwealth and enforce any regulation, license or order. If an operator that has received a notice of noncompliance fails to come into compliance within the time period stated in the notice, the civil administrative penalty may be assessed by the commission upon the operator from the date of receipt of such notice.

(c)  If the commission seeks to assess a civil administrative penalty on an operator, the commission shall cause to be served upon the operator, by service in hand or by certified mail, return receipt requested, a written notice of its intent to assess a civil administrative penalty that shall include: (i) a concise statement of the alleged act or omission for which such civil administrative penalty is sought to be assessed; (ii) each law, regulation, order, license or approval that has not been complied with as a result of such alleged act or omission; (iii) the amount that the commission seeks to assess as a civil administrative penalty for each alleged act or omission; (iv) a statement of the operator’s right to an adjudicatory hearing on the proposed assessment; (v) the requirements the operator shall comply with to avoid being deemed to have waived the right to an adjudicatory hearing; and (vi) the manner of payment thereof if the operator elects to pay the penalty and waive an adjudicatory hearing. After written notice of noncompliance or intent to assess a civil administrative penalty has been given, each day thereafter during which noncompliance occurs or continues shall constitute a separate offense and shall be subject to a separate civil administrative penalty if reasonable efforts have not been made by the operator to promptly come into compliance.

(d)  If the commission seeks to assess a civil administrative penalty on an operator, the operator shall have the right to an adjudicatory hearing under chapter 30A, the provisions of which shall apply except when they are inconsistent with the provisions of this chapter.

(e)  An operator shall be deemed to have waived its right to an adjudicatory hearing unless, not more than 21 days after the date of the commission’s notice that the commission seeks to assess a civil administrative penalty, the operator files with the commission a written statement denying the occurrence of any of the acts or omissions alleged by the commission in the notice or asserting that the amount of the proposed civil administrative penalty is excessive. In an adjudicatory hearing authorized under chapter 30A, the commission shall be required to prove, by a preponderance of the evidence, the occurrence of each act or omission alleged by the commission in the notice.

(f)  If an operator waives the right to an adjudicatory hearing, the proposed civil administrative penalty shall be final immediately upon such waiver. If a civil administrative penalty is assessed at the conclusion of an adjudicatory hearing, the civil administrative penalty shall be final upon the expiration of 30 days unless an action for judicial review of the decision is commenced under chapter 30A.

(g)  An operator who institutes proceedings for judicial review of the final assessment of a civil administrative penalty shall place the full amount of the final assessment in an interest-bearing escrow account in the custody of the clerk or magistrate of the reviewing court. The establishment of an interest-bearing escrow account shall be a condition precedent to the jurisdiction of the reviewing court unless the party seeking judicial review demonstrates, in a preliminary hearing held not more than 20 days after the filing of the complaint, the presence of a substantial question for review by the court or the operator’s inability to pay. Upon such a demonstration, the court may grant an extension or waiver of the interest-bearing escrow account requirement or may require, in lieu of such interest-bearing escrow account, the posting of a bond payable directly to the commonwealth in the amount of 125 per cent of the assessed penalty.

If, after judicial review, in a case where the escrow account requirement has been waived, and in cases where a bond has been posted in lieu of such requirement, the court affirms, in whole or in part, the assessment of a civil administrative penalty, the commission shall be paid the amount thereof together with interest at the rate provided in section 6C of chapter 231. If, after judicial review in a case where an interest-bearing escrow account has been established, the court affirms the assessment of such penalty, in whole or in part, the commission shall be paid the amount thereof together with the accumulated interest in the interest-bearing escrow account. If the court sets aside the assessment of a civil administrative penalty in a case where the amount of such penalty has been deposited in an interest-bearing escrow account, the operator on whom the civil administrative penalty was assessed shall be repaid the amount so set aside, together with the accumulated interest thereon.

(h)  Each operator who fails to timely pay a civil administrative penalty and each operator who issues a bond under this section and fails to timely pay to the commission the amount required for the bond, shall be liable to the commonwealth for up to 3 times the amount of the civil administrative penalty, together with costs, plus interest accrued from the time the civil administrative penalty became final and attorneys’ fees, including all costs and attorneys fees incurred directly in the collection of the penalty. The rate of interest shall be the rate provided in section 6C of chapter 231. The commission may require that the amount of a civil administrative penalty imposed under this section exceed any economic benefit realized by a person.

(i)  The commission may impose conditions on, suspend or revoke an operator’s license or reprimand or assess a fine on an operator upon a finding that the operator: (i) has committed a criminal or civil offense under this chapter or under any other law; (ii) is not in compliance with sports wagering regulations promulgated pursuant to this chapter; (iii) is under criminal investigation in another jurisdiction; (iv) has breached a condition of licensure; (v) has affiliates, close associates or employees that are not qualified or licensed under this chapter with whom the operator continues to conduct business or employ; (vi) is no longer capable of maintaining operations as a sports wagering operator; or (vii) whose business practice, upon a determination by the commission, is injurious to the policy objectives of this chapter.

Last updated:	August 10, 2022