Section 1700.5  Applicability

This Part shall apply to all hearings conducted by the Department of Lottery pursuant to the Illinois Lottery Law [20 ILCS 1605] and other Acts under its jurisdiction.

(Source:  Added at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.6  Definitions

The following definitions apply to this Part:

"Address of Record" means the address and/or email address required to be on file with the Department's Licensure Maintenance Unit by a licensee or, in the case of an unlicensed person, the most recent publicly ascertainable address.

"Administrative Hearing" means a proceeding at which parties present legal arguments and evidence about a case to an Administrative Law Judge or the Board, pursuant to the Lottery Law and 11 Ill. Adm. Code 1770.

"Administrative Law Judge" or "ALJ" means an attorney admitted to practice law by, and in good standing before, the Illinois Supreme Court who is duly authorized and designated in writing by the Director of the Illinois Lottery to convene and conduct hearings on matters under the jurisdiction of the Department.  An ALJ is specifically empowered to administer oaths and affirmations; rule on matters of proof and evidence; regulate the schedule and course of the hearing and pre-hearing process; hear and dispose of procedural and other similar matters; sign and issue orders and subpoenas; and exercise any other powers relating to the proceeding which are legally proper and reasonably necessary to carry out an ALJ's responsibilities.  The authority of any person to act as an ALJ shall not be a matter of proof in any hearing before the Department unless an appropriate motion is made pursuant to Section 1700.200.

"Affidavit" means a sworn and notarized or affirmed statement made in writing and signed.

"Agent" means a person licensed by the Director under the Lottery Law and by 11 Ill. Adm. Code 1770 to sell Illinois State Lottery Game tickets to the public, by an across-the-counter transaction at a specified point of sale at a specifically licensed Lottery location.

"Appeal" means a pleading, petition or application made by an appellant.

"Appellant" means an applicant, complainant or petitioner.

"Board" means the Lottery Control Board created as an independent advisory Board to the Director pursuant to the Lottery Law.

"Chief Administrative Law Judge" means an Administrative Law Judge who, in addition to performing the general duties of an Administrative Law Judge, serves as the immediate supervisor of all other Administrative Law Judges in the Office of the Chief Administrative Hearing Officer and performs other regulatory duties as identified in this Part and elsewhere.

"Chief Administrative Law Judge's Clerk" means the Office of Administrative Hearings Clerk designated to receive filings and to date stamp them.

"Contested Case" means an adjudicatory proceeding (not including ratemaking, rulemaking, or quasi-legislative, informational, or similar proceedings) in which the individual legal rights, duties, or privileges of a party are required by law to be determined by an agency only after an opportunity for a hearing.

"Department" means the Department of the Lottery.

"Director" means the Director of the Department of the Lottery.

"Formal Hearing" means a formal proceeding that is conducted on the record before an ALJ during which the parties present evidence and make arguments regarding appropriate action on a contested matter.

"Litigator" means a Special Assistant Attorney General, employed in the Department's Office of Legal Services, admitted to practice law by, and in good standing before, the Illinois Supreme Court, who is duly authorized and designated in writing by the Director to present the Department's case and otherwise represent the Department's interest in hearing, status and pre-trial conferences on all matters covered by the relevant Lottery Law and 11 Ill. Adm. Code 1770 and any other applicable laws.

"Lottery Law" means the Illinois Lottery Law [20 ILCS 1605].

"Petitioner" is a party who, by written petition, seeks relief or licensure under any provision of the statutes of the State of Illinois or any rule, order or determination of the Department.  The party seeking licensure may also be identified as "applicant".

"Preponderance of the Evidence" means the greater weight of the credible evidence.

"Respondent" is the Department against whom a petition, complaint or notice initiating a proceeding is filed.

"Secretary" means the Secretary of the Lottery Control Board at the Department's Chicago, Illinois Office.

(Source:  Added at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.10  General Explanation of Procedure

a)         This Part shall apply to all Lottery hearings and subsequent reviews/appeals, except rulemaking hearings, conducted by the Department, the Board, or any Administrative Law Judge designated by the Board and appointed by the Director, under the authority of Section 7.3 of the Lottery Law.

b)         Request for Hearing

1)         An appellant may request a hearing if:

A)        their license as an agent has been non-renewed, suspended or revoked;

B)        their application for a lottery sales license has been denied;

C)        their claim prize has been denied payment;

D)        the appellant has received a notice of assessment dispute; or

E)        they are otherwise seeking a hearing before the Department pursuant to Section 7.3 of the Lottery Law.

2)         A request for hearing shall be filled with the Secretary. 

3)         The Secretary, within 3 days after the receipt of the request for a hearing, shall notify the Chief Administrative Law Judge's Clerk, who shall assign an Administrative Law Judge.  When a request for a hearing arises from the revocation of a license without prior notice and opportunity for a hearing, the hearing shall be held within 30 days after the revocation order has been issued.  In all other requests for a hearing, the Department will, within 14 days, request to schedule either an informal conference or a hearing, to be held not later than 45 days after the date of its scheduling.  Notice of any hearing scheduled by the Secretary shall be served upon the parties as provided in Section 1700.80, and shall include the information required by Section 10-25 of the Illinois Administrative Procedure Act [5 ILCS 100]. The ALJ shall, upon the close of all proofs in the hearing, file findings and recommendations with the Director as provided in Section 1700.180, with a copy to be forwarded to each party to the action.

c)         Any party may, within 20 days after the date the notice of the proposed findings and recommendations is received by certified mail (or returned as undelivered or unclaimed) or email, file with the Secretary, in writing, a motion for review, with a copy to each party to the action.  The party seeking the review shall then have 35 days from the date of the filing of the notice of the motion for review to file, with the Secretary, a brief as to the specific errors of the ALJ as set forth in subsection (d), with a copy to each party.  All other parties may file responsive briefs with the Secretary within 35 days after receipt of written notice from the Secretary that the brief supporting the motion for review has been filed.  The Secretary shall transmit, within 85 days after receipt of the motion for review, the record of the action, including all documents, evidence, and transcripts submitted to or taken from the hearing, along with the motion for review and the briefs submitted by the parties, to the Board.  The Board shall review the record of the case and shall make recommendations to the Director within 90 days after the date of receipt of the record of the case.

d)         The Board shall review the record, in its entirety, to determine that the findings of fact by the ALJ are not against the manifest weight of the evidence, the ALJ has applied the law and regulations correctly, and that the conduct and procedures of the hearing did not prejudice any party.

e)         The recommendation of the Board to the Director shall be transmitted by the Secretary to the parties to the action.  Any party has a right to make a final appeal to the Director.  A party may note exceptions to the recommendations of the Board, along with supporting briefs, within 14 days after the receipt of notice of the recommendations of the Board.  The Director shall have 30 days to review the record of the case and the Board's recommendation.  The Director shall then enter an order either adopting or not adopting the ALJ's or Board's recommended decision of the matter.  This order shall be served pursuant to Section 1700.80.

f)         Any party adversely affected by a final decision or order of the Director may obtain judicial review as provided by the Administrative Review Law [735 ILCS 5/Art. III].  The petition for review must be filed within 35 days after the receipt by certified mail or email of the order or decision for which judicial review is sought.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.20  Notice of Denial of Application

Within 180 days from the receipt of the application and fee, the Department shall, in writing, promptly notify the applicant for a license to act as a lottery sales agent for the Department of the grant or denial of the license. The notice of denial shall state the grounds serving as the basis for the denial.  The notice must also inform the applicant of the right to a hearing on the denial.  The applicant must file a written request with the Secretary for a hearing on the denial within 30 days after the date of receipt by certified mail (or its return as undelivered or unclaimed) of the notice of denial of the license application in accordance with Section 1700.10.  The Department may amend a notice under this Section at any time, except in the course of the hearing, without leave or approval of the Administrative Law Judge. If an amended notice is filed during the course of the hearing, it shall also be presented to the ALJ. A continuance shall be granted whenever the amendment materially alters the notice and when the applicant demonstrates that they would otherwise be unable to properly prepare an answer to the amended notice or prepare their case.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.30  Notice of Revocation or Suspension of License

The Department will notify the agent of its determination to revoke or suspend that agent's license and shall include in the notification the grounds serving as the basis for the revocation or suspension.  The Department will also inform the agent of the right to a hearing on the revocation or suspension.  The agent must file a request for a hearing within 30 days after the date of the receipt by certified mail (or its return as undelivered or unclaimed) or email of the notice of the proposed Departmental action or notice of the action taken by the Department in accordance with Section 1700.10.  The request for a hearing must be filed with the Secretary.  Where the license revocation or suspension is without prior notice and opportunity for hearing, the agent must file a hearing request with the Secretary within 20 days after receipt of the revocation or suspension notice in order to permit scheduling of the hearing within the time period set forth in Section 1700.10. The Department may amend a notice under this Section at any time, except in the course of the hearing, without leave or approval of the Administrative Law Judge. If an amended notice is filed during the course of the hearing, it shall also be presented to the ALJ. A continuance shall be granted whenever the amendment materially alters the notice and when the agent demonstrates that they would otherwise be unable to properly prepare an answer to the amended notice or prepare their case.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.40  Notice of Refusal to Renew License

The Department will notify the agent of its determination not to renew the agent's license not less than 30 days prior to the expiration of that license.  The notice shall state the grounds serving as the basis for the denial of renewal of the license.  The notice must also inform the agent of the right to a hearing on the denial.  The agent must file a request for a hearing within 30 days after the date of the receipt by certified mail (or its return as undelivered or unclaimed) or email of the notice of the refusal to renew the license in accordance with Section 1700.10.  This request must be filed with the Secretary. The Department may amend a notice under this Section at any time, except in the course of the hearing, without leave or approval of the Administrative Law Judge. If an amended notice is filed during the course of the hearing, it shall also be presented to the ALJ. A continuance shall be granted whenever the amendment materially alters the notice and when the agent demonstrates that they would otherwise be unable to properly prepare an answer to the amended notice or prepare their case.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.45  Notice of Assessment, Denial of a Claim Prize or any Other Contested Case

Whenever the Department issues a Notice of Assessment, a claim prize denial, or any other determination pursuant to the Lottery Law and this Part, the Department will notify the agent, player, or other individual of the Department's determination and the basis of that determination. The agent, player or other individual seeking a hearing before the Department on a contested matter must file a hearing request with the Secretary within 20 days after receipt of the Department's determination in accordance with Section 1700.10.

(Source:  Added at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.50  Informal Conference

a)         Upon written notice by the Administrative Law Judge or the Chief Administrative Law Judge's Clerk in any proceeding, parties or their attorneys may be directed to appear at a specified date, time and place, mutually agreed upon by the parties, for a conference to consider:

1)         defining the legal and factual issues to be adjudicated at the administrative hearing;

2)         the necessity or desirability of amending the pleadings for the purpose of clarification, amplification or limitation with respect to matters alleged in any pleading;

3)         the possibility of making admissions or stipulations of fact in order to avoid the unnecessary introduction of evidence;

4)         the procedure at the hearing;

5)         the limitation of the number of witnesses;

6)         the propriety of prior mutual exchange between or among parties of prepared testimony or exhibits;

7)         other matters as may aid in the simplification of the evidence and disposition of the proceeding; and

8)         how to arrive at an equitable settlement of the issues to be adjudicated.

b)         Prior to issuing a notice of hearing, the Administrative Law Judge may, by written notice, direct the parties or their attorneys to appear at a specified date, time and place, mutually agreed upon by the parties, for an informal conference for the purpose of arriving at an equitable settlement of the issues to be adjudicated at the administrative hearing.

c)         If there is an informal conference where no settlement is reached, and the hearing date has not yet been set, a discovery schedule and plan setting dates for exchange of discovery and preliminary motions and hearing date will be set at the informal conference by mutual agreement of the parties.  The informal conference shall not be open to the public, nor shall it be on the record.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.60  Right to Legal Counsel

a)         Any party may appear and be heard through an attorney at law authorized to practice in the State of Illinois.

b)         In any proceeding pending before the Board or an Administrative Law Judge, a natural person may appear pro se and be heard on the person's own behalf.

c)         Only a person admitted to practice as an attorney at law shall represent anyone else in any proceeding before an ALJ, in any matter involving the exercise of legal skill or knowledge.

d)         All persons appearing in proceedings before an ALJ shall conform to the standards of conduct of attorneys before the courts of the State of Illinois.  If a person does not conform to those standards, the ALJ may decline to permit that person to appear in any proceeding or exclude that person from any proceeding.

e)         A corporation may be represented by an officer or authorized employee in any matter provided a Power of Attorney is filed, effective only for the particular matters having been protested, unless otherwise consolidated with other proceedings by order of the assigned ALJ.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.70  Appearance of Attorney

a)         An attorney appearing in a representative capacity shall file a written notice of appearance identifying the attorney by name, address, and telephone number, and identifying the party represented.

b)         An attorney who has appeared in a representative capacity and who wishes to withdraw from that representation shall file a motion for leave to withdraw with the Administrative Law Judge, together with proof of service and notice of filing on all parties.  The motion for leave to withdraw shall be in writing and, unless another attorney is substituted, shall state the last known address of the party represented.  The motion may be denied by the ALJ if it would unreasonably delay the hearing and otherwise be a material adverse effect on the interests of the client.  An attorney may withdraw if representation will result in an unreasonable financial burden on the attorney or has been rendered unreasonably difficult by the client, or if the client insists upon taking action that the attorney considers repugnant or if the attorney has a fundamental disagreement with the client.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.80  Service and Proof of Service

a)         All service shall be by certified mail or registered mail, or by email pursuant to section 10-75 of the Illinois Administrative Procedure Act [5 ILCS 100].  Service by mail shall be deemed complete four days after mailing of the document, properly addressed and posted for delivery, to the person to be served.  Service is deemed completed if returned undelivered or unclaimed, when mailed to the party's last known address, with proper postage prepaid.  Service by email is complete on the day of transmission or if after 5:00 p.m., the next business day.  If service is by email, the Department will maintain a copy of the sent email and shall verify within one business day that the transmission of the email has not been rejected or has failed.  In the event of rejection or failure, absent correction of an erroneous email address, service shall be made by mail.

b)         Motions and affidavits in support of motions, responses, counter-affidavits and replies shall be served by the party filing these documents same upon all parties to the proceeding.  Proof of service upon all parties shall be filed with the Secretary.

c)         Findings of fact and conclusions of law, briefs, motions for hearing or re-hearing, and notices of appeal shall be served by the Department, Board, or the party filing these documents upon each party to the proceeding, and a proof of service upon all parties shall be filed with the Secretary.

d)         When any party or parties have appeared by attorney, service upon the attorney shall be deemed service upon the party or parties.

e)         Proof of service of any paper shall be by certificate of attorney, affidavit or acknowledgment as provided for in section 1-109 of the Code of Civil Procedure [735 ILCS 5]. Proof of service by mail will be attached to the original of any document served.  Proof of service by email shall be the emailed notice to which the document is attached.  In the absence of evidence to the contrary, the date shown on the proof of service shall be deemed the date of service.  When filing by email, the date of service shall be the date the transmission is sent.

f)         In computing any period of time prescribed or allowed by this Section, the day of the act, event or default after which the designated period of time begins to run is not to be included.  The period of time shall run until the end of the last day, or the next following business day if the last day is a Saturday, Sunday or legal holiday.  When the Lottery Law requires the filing of a motion, brief, exception or other paper in any proceeding, the document must be received by the Department and the Chief Administrative Law Judge's Clerk or the officer or agent designated to receive that matter before the official closing time of the receiving office on the last day of the time limit, if any, for the filing or extension of time that may have been granted.  Filings received after 5:00 p.m. will be considered filed on the following business day.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.90  Form of Papers

a)         All papers filed in any proceeding shall be typewritten on 8½ x 11" white paper using one side only, shall have margins no less than one inch on each side, shall be in a typeface no smaller than 11-point type, shall be double spaced (except that quotations and footnotes may be single spaced), and no more than 15 pages.  Nonconforming papers may, at the Director's or Administrative Law Judge's discretion, be rejected.  The filing shall bear a caption clearly indicating the title of the proceeding in connection with which they are filed together with the hearing or docket number.

b)         All papers shall be signed by the party or the party's authorized representative or attorney and shall contain the party's mailing address, telephone number and email address.  No fewer than an original and two copies of all papers shall be filed with the Administrative Law Judge's Clerk and a copy mailed or emailed to the Secretary at Lot.LCBSecretary@illinois.gov. When filing by email, signed scanned documents in PDF format should be used.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.100  Motions

Motions in the course of proceedings may be presented to request the dismissal of the proceedings for want of jurisdiction or want of prosecution, the quashing of a subpoena, postponement of the effective date of an order, the extension of time for compliance with an order, or other relief as may be appropriate.  Any preliminary motion which is authorized under the Code of Civil Procedure [735 ILCS 5] that may be utilized in normal civil practice and is not otherwise inconsistent with administrative practice and procedure, contrary to the Lottery Law, or outside the scope of an Administrative Law Judge's authority may be employed. Motions may include but are not limited to summary judgment, dismissal for want of jurisdiction or want of prosecution, failure to state a claim, compel discovery, reconsideration, vacate or modify an order, enforce a settlement, disqualification of an ALJ, protective order, sanctions, or other relief as may be appropriate.

a)         All motions shall be in writing, except those based on unforeseen or emergency circumstances, and shall be accompanied by any affidavits or other evidence relied upon.  Any motion filed shall be clearly designated and shall contain in its caption the name of the case, docket number and type of motion brought.  Motions shall bear evidence of a certification of service and notice to the appropriate parties.  The notice of motion and motion must be filed at least 28 days in advance of an oral hearing and, when appropriate, by a proposed order.  All motions shall be filed with the ALJ and each additional party, if any, shall be served a copy of that motion.

b)         Within 10 days after service of a written motion or other document, or other period as the ALJ may allow, a party may file a response in support of or in opposition to the motion and, if necessary, accompanied by affidavits or other evidence.  A party filing a motion has the right to request from the ALJ leave to file a reply to a response.

c)         Unless otherwise ordered, the filing of an answer or motion shall not stay the proceeding or extend the time for the performance of any act.

d)         A party has a right to file an emergency motion setting forth why an emergency exists.  The ALJ can deny the emergency motion solely on the basis that the motion did not demonstrate that an emergency exists.

e)         When any motion is filed, the ALJ shall allow oral argument if this is deemed necessary for a fuller understanding of the issues presented.

f)         When the party moving for summary judgment files supporting affidavits containing well-pleaded facts, and the opposing party files no counter affidavits, the material facts set forth in the moving party's affidavit are deemed admitted. Affidavits must comply with Illinois Supreme Court Rule 191.

g)         The ALJ may grant a motion for summary judgment under this Section if the record shows that:

1)         There is no disputed issue as to any material fact; and

2)         The moving party is entitled to summary decision as a matter of law.

h)         If any motion in the nature of a motion to dismiss or for summary judgment is granted by the ALJ before filing a final decision in a matter scheduled for hearing, any party may obtain a review of the granting of the motion by filing a request with the Director stating the grounds for review and, immediately upon filing, shall serve a copy of the request on the other parties.  Unless the request for review is filed within 15 days after the date of the order of dismissal or granting of summary judgment, the decision of the ALJ shall become final.

i)          The ALJ shall rule on all motions as expeditiously as possible and prior to setting an administrative hearing date.

j)          A party has the right to appeal any order issued by an ALJ during the pendency of a proceeding.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.110  Continuances

The hearing may, at any time, be postponed or continued, after due cause shown such as the unavailability of a witness, party, or party's counsel, by the Administrative Law Judge before which it is scheduled, upon the ALJ's own motion or upon motion of any party to the proceeding.  Notice of any motion for postponement or continuance shall be given to all parties to the hearing at least 48 hours prior to the scheduled date and time of the hearing.  Where a witness, party or counsel becomes unavailable within 48 hours before a scheduled hearing due to accident, illness, death in the family, conflicting court schedule or other emergency situation beyond the person's control, notice shall be given as soon as possible after the event which justifies continuance.  All parties involved in a hearing shall attempt to avoid undue delay caused by repetitive postponements or continuances so that the subject matter of the hearing may be resolved expeditiously.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.115  Withdrawal of Petitions for Hearing

A petition for hearing may be withdrawn at any time prior to the hearing by the party who initiated it.  After a hearing has begun, a petition may be withdrawn only with leave of the Administrative Law Judge.

(Source:  Added at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.116  Hearings

The sequence to be followed for all contested cases is as follows:

a)         Informal Status Conference (See Section 1700.50).

b)         Formal Hearings

1)         Preliminary Matters – Motions, attempts to narrow issues or limit evidence.

2)         Opening Statements – The party bearing the burden of proof proceeds first.

3)         Case in Chief – Evidence is presented by the party bearing the burden of proof.  Once a witness' direct testimony is completed, that witness is subject to cross-examination.

4)         Defense – Evidence may be presented by the opposing party.

5)         Closing Statements – The party bearing the burden of proof proceeds first, then the opposing party, then a final word by the party bearing the burden of proof.

(Source:  Added at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.117  Default, Other Sanctions and Penalties

If a party, after proper service of notice, fails to appear at an informal conference or administrative hearing, and if no continuance has been granted, the Administrative Law Judge may proceed to make a decision in the absence of that party.

a)         The ALJ may impose sanctions and penalties if the ALJ finds that a party has acted in bad faith, for the purpose of delay, or has otherwise abused the hearing process.  Sanctions and penalties include, but are not limited to, default judgment or directed finding on one or more issues.

b)         If a party fails to testify on their own behalf with respect to any question propounded to them, the ALJ may infer that the testimony or answer would have been adverse to the petitioner's case.

c)         Failure of a party to appear at a hearing or scheduled proceeding without an emergency reason shall constitute an admission of all matters and facts contained in the notice of denial.  In these cases, the ALJ may take action based upon that admission or upon any other evidence, including affidavits, without any further notice to the petitioner.

d)         If the failure to appear is due to an emergency situation beyond the parties' control, and the Department has been notified of the situation on or before the scheduled informal status conference or administrative hearing, the conference or hearing will be continued or postponed pursuant to Section 1700.110.  Emergency situations include sudden unavailability of counsel, sudden illness of a party or their representative or similar situations beyond the parties' control.

(Source:  Added at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.118  Consolidation and Severance of Matters

In the interest of convenient, expeditious and complete determination of matters, the Administrative Law Judge may, so long as there is no undue prejudice to any of the involved parties, consolidate or sever hearing proceedings involving any number or parties or issues, and may join or sever parties for the complete administration of justice.

(Source:  Added at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.119  Intervention

a)         Upon timely written application, the Administrative Law Judge may permit any party to intervene in a hearing proceeding, subject to the necessity for conducting an orderly and expeditious hearing, when:

1)         The party may be adversely affected by a final order arising from the hearing;

2)         The party requesting intervention is a necessary party to the hearing proceeding; or

3)         A party's claim or defense and the main action have a question of law or fact in common.

b)         In exercising discretion under this Section, the ALJ shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

c)         Two copies of a petition for intervention shall be filed with the ALJ and one copy shall be served on each party.

d)         An intervenor shall have all the rights of an original party subject to the order of the ALJ, except that the ALJ may provide that the party shall not raise issues that might more properly have been raised at an earlier stage of the proceeding, that the party shall not raise new issues or add new parties, or that in other respects the party shall not interfere with the conduct of the hearing.

(Source:  Added at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.120  Discovery

a)         After initiation of a complaint, any party may obtain discovery by one or more of the following methods:  

1)         Depositions upon oral examination or upon written questions;

2)         Written interrogatories;

3)         Production of documents or other items, or permission to enter upon land or other property, for inspection and other purposes; or

4)         Requests for an informal conference for purposes of setting a discovery schedule and plan.  

b)         Unless otherwise limited by order of the Administrative Law Judge, the parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, including:

1)         the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things; and

2)         the identity and location of persons having knowledge of any discoverable matter for purposes of impeachment of testimony, admission, exception to hearsay or for which an affidavit may be used.  

c)         To the extent that any aspect of discovery is not addressed in this Section, the rules of discovery as applied in civil cases in the circuit courts of Illinois shall be followed.  In the case of conflict between this Section and the rules of discovery as applied in civil cases in the circuit courts of Illinois, the latter shall prevail.

d)         Production of Documents

Any party may, by written request, direct any other party to produce for inspection, copying, reproduction or photographing any specified documents, or to disclose information calculated to lead to the discovery of the whereabouts of any of these items, whenever the nature, contents, or condition of such documents is relevant to the subject matter and is not privileged.  The request shall specify a reasonable time, not less than 28 days, within which the related actions are to be performed.  The production, inspection, copying or photographing of any departmental records shall be done on Department premises, unless other arrangements can be made with the consent of both parties.  A person served with a written request for production of documents shall:

1)         Comply with the request within the time specified, or

2)         Serve upon the requester written objections on the grounds that the request is improper in whole or in part and state the reasons why this request is improper.  Any objection to the request or refusal to respond shall be heard by the ALJ upon prompt notice and motion of the party submitting the request in accordance with section 10-40 of the Illinois Administrative Procedure Act [5 ILCS 100].

3)         Upon request, furnish an affidavit stating whether the production is complete in accordance with the request.

e)         Request for Admissions

1)         A party may serve on any other party a written request for the admission by the latter of the truth of any specified relevant fact set forth in the request and/or for the admission of the genuineness of any relevant documents described in the request in accordance with Supreme Court Rule 216. Copies of the documents shall be served with the request unless copies have already been furnished.  Each of the matters concerning admission of fact, or the genuineness of each document for which admission of fact is requested, shall be admitted, unless, within 28 days after service of the request or additional time as may be granted by the ALJ, the person to whom the request is directed serves upon the requesting party either:

A)        A sworn statement denying specifically the matter on which admission of fact is requested, or setting forth, in detail, the reason why these matters cannot be truthfully admitted or denied.  A denial shall fairly meet the substance of the requested admission.  If good faith requires that a party qualify an answer or deny only a part of an admission of fact, the party shall specify so much of it as is true and deny or qualify the remainder.  An answering person may not give lack of information or knowledge as a reason for failure to admit or deny unless that person states that they have made reasonable inquiries and that the information known or regularly obtainable by that person is insufficient to enable the person to admit or deny that fact; or

B)        A written objection on the grounds that some or all of the requested admissions of fact are privileged or irrelevant.  An objection on the grounds of relevance may be noted by any party but it is not to be regarded as just cause for refusal to admit or deny.  If written objections to a request are made, the remainder of the request shall be answered within the period designated in the request.  A requesting party, upon receipt of any objection, may have the objection heard and determined by the ALJ upon prompt notice and motion directed to the ALJ.

2)         Any admission made by a party to a request under this Part is for the purpose of the pending action only.  It does not constitute an admission by that party for any other civil proceeding and may not be used against that party in any other proceeding.

f)         Interrogatories

Any party may serve interrogatories on any other party.  One copy of the interrogatories shall be filed with the ALJ with proof of service on all other parties entitled to notice.  Written interrogatories shall be reasonably spaced to permit the answering party to reply to the interrogatories served on that party.  The answering party may attach an addendum to the copies if the space provided is insufficient.  The number of written interrogatories served shall not exceed 30, inclusive of all subsections, except by leave of the presiding ALJ.

1)         Within 28 days after service of the interrogatories upon the relevant party, that party shall timely file a sworn answer or an objection to each interrogatory and state its basis.  Sworn answers to interrogatories directed to a public or private corporation, or a partnership or association shall be made by an officer, partner, or agent, who shall furnish information available to the party.

2)         Duty of attorney.  It is the duty of an attorney directing interrogatories to restrict them to the subject matter of the particular case, to avoid undue detail, and to avoid the imposition of any unnecessary burden or expense on the answering party.

g)         Depositions

Any party may serve notice and take the deposition of another person.  The deposition shall be on the record.  The party or party's attorney before whom the deposition is to be taken shall put the witness under oath or affirmation.  Examination and cross-examination shall proceed as at a hearing.

1)         The deponent in a discovery deposition may be examined regarding any matter subject to discovery under this Part and Illinois Supreme Court Rule 206.

2)         Any objections made at the time of the examination shall be included in the deposition.  The party before whom the deposition is taken shall not rule on objections to the evidence, but evidence objected to shall be taken subject to the objection.

3)         When the testimony is fully transcribed, the deposition shall be submitted to the deponent for examination and signature, unless examination and signature are waived by the deponent.  The party's attorney shall certify within the deposition that the deponent was duly sworn and that the deposition is a true record of the testimony given by the deponent.  If the deposition is not signed by the deponent, the party's attorney shall certify the deposition and state the reason for the omission of the signature.  A certified deposition requires no further proof of authenticity.

4)         The party at whose instance the deposition is taken shall pay the fees of the witness and the charges of the recorder or stenographer for attending.

h)         Expert or Opinion Witnesses

When requested by interrogatories served, all parties are under a duty to disclose the identity of opinion witnesses, and to further disclose the subject matter of any intended testimony of these witnesses.

i)          Each different type of discovery sought shall be by a separate document, labeled accordingly.  All discovery requests shall be served upon the litigator assigned to the case or the petitioner or the petitioner's attorney depending on who is making the request.  Copies of discovery requests or demands shall be provided to the presiding ALJ.

j)          Hearings shall not be delayed to permit discovery unless due diligence is shown by the party seeking the discovery.

k)         Supplementation of Responses

A party that has responded to a request for discovery with a response that was complete when made is under no duty to supplement their response to include information thereafter acquired, except as follows:

1)         A party is under a duty to timely supplement their response with respect to any question directly addressed to:

A)        The identity and location of persons having knowledge of discoverable matters; and

B)        The identity of each person expected to be called as an expert witness at the hearing, the subject matter on which the person is expected to testify, and the substance of the person's testimony.

2)         A party is under a duty to timely amend a prior response if the party later obtains information upon the basis of which:

A)        The party knows the response was incorrect when made; or

B)        The party knows that the response though correct when made is no longer true and that a failure to amend the response is in substance a knowing concealment.

3)         A duty to supplement responses may be imposed by order of the ALJ or agreement of the parties.

l)          Stipulations

If the parties stipulate, depositions and discovery may take place before any person, for any purpose, at any time or place, and in any manner.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.125  Remedies/Compliance with Discovery

a)         Any party or its counsel, upon failure of the opposing party to answer or appropriately respond to any discovery request, by way of motion addressed to the Administrative Law Judge, may request to compel a response or appropriate answer be given to the requests made. In seeking a remedy under this Section, only a reasonable attempt to achieve compliance with the discovery request must be made prior to seeking the assistance of the ALJ.

b)         If a party or its counsel fails to comply with a reasonable discovery request after being ordered to do so by the ALJ, the party seeking the discovery may request further orders from the ALJ as are just, including, but not limited to:

1)         An order that the matters regarding which the order of compliance was made or any other designated facts shall be taken as true and established for the purpose of the case in accordance with the claim of the party obtaining the order;

2)         An order refusing to allow the disobedient party to support or oppose designated defenses, or prohibiting that party from introducing designated matters or documents in evidence;

3)         An order staying further proceedings until the order is obeyed or rendering a judgment by default against the disobedient party.

4)         An order that reasonable costs, including attorney’s fees, be assessed against a party or their attorney who unreasonably fails to facilitate discovery under this provision.

c)         In ordering sanctions, the ALJ shall consider factors including, but not limited to:

1)         The diligence of the person making the request;

2)         The burden of compliance on the party subject to the request;

3)         The reasonableness of the failure to comply; and

4)         Circumstances which may prevent compliance.

(Source:  Added at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.130  Subpoenas

a)         The Administrative Law Judge may issue subpoenas for the attendance of witnesses or production of specific books, records, documents or other evidence.

b)         Any respondent or petitioner seeking issuance of a subpoena shall submit a request in writing to the ALJ.

c)         The request shall demonstrate that the documents or testimony sought are relevant and material to the proceeding pending before the Department and are not otherwise excludable by law or by rule.

d)         Except for Department investigators, examiners, and professional coordinators who participated in the investigation of the case, the ALJ should not generally issue subpoenas for the testimony of Department officers or employees or Board members.

e)         Subpoenas shall be personally served by a person not less than 18 years of age, or served by certified mail with return receipt signed by private delivery service, by U.S. regular mail, postage prepaid or email.  The return of service shall be delivered to the Secretary, and be made part of the record.  Each party shall be responsible for the service of the subpoenas that party has requested.

f)         The date of service for purposes of computing the time for filing a petition to quash or modify a subpoena shall be the date the subpoena is received.  All petitions to quash or modify subpoenas shall be served on the party that requested the subpoena within 14 days after service of the subpoena. The petition to quash, if made prior to or during the hearing, shall be filed with the ALJ.

g)         The ALJ, upon motion made promptly, at or before the time specified in the subpoena for compliance, may deny or modify the subpoena if it is insufficient, unreasonable, is oppressive or requests material that:

1)         Does not meet the requirements of this Section and Illinois code of Civil Procedure;

2)         Was improperly served;

3)         Fails to allow a reasonable time for compliance;

4)         Requires a person who is not a party or an officer of a party to travel to a hearing more than 25 miles from where that person resides, is employed, or regularly transacts business, except when the person may be ordered to appear by telephone;

5)         Requires disclosure of a privileged or other protected information; or

6)         Subjects a person or entity to undue burden or expense.

h)         The ALJ will rule upon motions to quash or modify material requested in the subpoena.  The ALJ may deny, limit or condition the production of information when necessary to prevent undue delay, undue expense, harassment or oppression.  The ALJ can take these actions if the subpoena does not sufficiently describe the evidence whose production is required, or if, the subpoena is otherwise invalid.

i)          If a party or organization within control of a party fails to obey a subpoena, and the ALJ finds the subpoena to have been validly served and the material requested to be relevant and material, the ALJ may impose appropriate non-monetary sanctions, including but not limited to:  prohibiting testimony by the party who has refused to comply with the subpoena; drawing an adverse inference against the party required to comply; or recognizing the evidence required by the subpoena but not produced as establishing the truth of the position of the party who subpoenaed the document.

j)          Witnesses summoned before the ALJ, other than those summoned by the Department, shall be paid the same fees and mileage that are paid to witnesses in the court of the county where the hearing is being held.  Witness fees and mileage shall be paid by the party at whose instance the witnesses appear.

k)         Subpoenas shall be enforced in the same manner as subpoenas issued by the circuit courts of this State of Illinois.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.140  Witnesses

a)         Subject to the evidentiary requirements of Section 10-40(a) of the Illinois Administrative Procedure Act [5 ILCS 100], a party may conduct examinations or cross-examinations required for a full and fair disclosure of the facts.  [5 ILCS 100/10-40(b)]

b)         The Department may call any adverse party as a witness without vouching for that party's credibility and proceed to examine such adverse party as if under cross-examination.  Any party calling a witness in good faith, who is surprised by that witness' testimony, may impeach that witness by evidence of prior inconsistent statements.

c)         The Administrative Law Judge is authorized to examine any or all witnesses at a hearing to obtain relevant information that has not been presented by the parties.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.150  Evidence at Hearings

a)         Evidence at hearings shall be governed by Section 10-40 of the Illinois Administrative Procedure Act.

1)         Irrelevant, immaterial, or unduly repetitious evidence shall be excluded.  The rules of evidence and privilege as applied in civil cases in Illinois circuit courts shall be followed (see Supreme Court of Illinois Rules of Evidence).  Evidence not admissible under those rules of evidence may be admitted, (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.  Objections to evidentiary offers may be made and shall be noted in the record.  Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced, any part of the evidence may be received in written form.

2)         Subject to the evidentiary requirements of subsection (a)(1), a party may conduct cross-examination required for a full and fair disclosure of the facts.

3)         Notice may be taken of matters of which the circuit courts of this State may take judicial notice.  In addition, notice may be taken of generally recognized technical or scientific facts within the Department's specialized knowledge.  Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed.  The Department's experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence.  [5 ILCS 100/10-40].

4)         All exhibits for any party shall be clearly marked for identification.  A sufficient number of copies shall be made prior to the commencement of the hearing and when admitted into evidence by the Administrative Law Judge.

5)         The ALJ may, on the ALJ's own initiative or at the request of any party or witness, enter a protective order to prevent exposure in the public domain of records or other information that is of a sensitive or confidential nature.

b)         Parties may, by stipulation, agree upon any facts involved in the proceeding.  The facts stipulated shall be considered as evidence in the proceeding, provided that the ALJ may require proof of any fact necessary to adjudicate the facts at issue.

c)         Unless otherwise provided by law or stated in this Part, the standard of proof in any contested case hearing conducted under the Lottery Law shall be the preponderance of the evidence as required by Section 10-15 of the Illinois Administrative Procedure Act.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.155  Business Documents

a)         Business records that are relevant to the case shall be admissible.  These records shall be:

1)         A memorandum, report, record or data compilation;

2)         Made by a person with first-hand knowledge of the facts or from information transmitted by a person with knowledge of those matters;

3)         Made at or near the time of the facts;

4)         Made as part of the regular practice of the activity; and

5)         Kept in the course of regularly conducted activity.

b)         Any party may prove elements in subsections (a)(2) through (a)(5) by presentation of a sworn statement by an individual responsible for making or keeping those records.

c)         Any party seeking introduction of a document will be allowed to offer a mechanical reproduction or photo copy of the original without any showing that the original is unavailable, upon representation of the party or attorney that the copy is a fair and accurate copy of the original.

(Source:  Added at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.160  Court Reporter

The Department, at its option, will designate a licensed court reporter to make a stenographic record or have the Administrative Law Judge make an audio recording of hearings in all proceedings.  Upon the filing of a motion for review, the Department will provide, by certified mail, a non-certified copy of the transcript to each party.  However, a party may request a non-certified copy of the transcript from the Department or a certified copy of the transcript from the court reporter at that party's own cost, at any stage of the hearing process.  The ALJ will maintain the audio recording until 90 days after the Director has entered a final order, unless a timely notice of civil administrative review is filed, in which case, the ALJ will cause the audio recordings to be transcribed by a certified court reporter and will cause the transcription to become part of the official record.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.170  Corrections to Transcripts

A party who requests and receives a transcript copy prior to the Administrative Law Judge rendering a report and recommendation to the Director may suggest corrections to the transcript of record within 10 days after the transcript is received by the party.  Suggested corrections shall be served upon, or brought to the attention of, each party whose appearance is of record or by that party's attorney, the official reporter and the ALJ.  If the suggested corrections are not objected to, the ALJ will discuss with the parties the corrections to be made and the manner of making them.  The ALJ shall then determine the manner in which the record shall be changed, if at all.  In making this decision, the ALJ will consider whether the suggested corrections accurately reflect the proceedings of the hearing.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.180  Findings, Conclusions and Recommendations

After the close of all proofs in the hearing, the ALJ shall cause to be prepared and transmitted to the Director findings of fact, conclusions of law, and recommendations, together with the entire record in the proceeding.  The ALJ's findings, conclusions and recommendations shall contain all the items required by Section 10-50 of the Illinois Administrative Procedure Act.  Copies of these findings, conclusions and recommendations, and if the ALJ elects, a memorandum of law supporting all or any of these findings, conclusions and recommendations, shall be served upon each party in the manner provided by this Part. These materials shall be accompanied by a notice from the Department that any party has 20 days after the date these materials are received by certified mail, registered mail, or email (or returned as undelivered or unclaimed) to present a written motion for review to the Secretary. The submission of a motion requesting a review by the Board of the ALJ's findings, conclusions, and recommendations, shall stay the final disposition by the Director, as provided by Section 1700.190, until the review and recommendation of the Board, as provided by Section 1700.10(c), is completed.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.190  Final Disposition by Director

The findings of fact, conclusions of law, and recommendations of the Administrative Law Judge, as well as any recommendations of the Board, shall be reviewed by the Director.  The Director shall have 30 days to review the record of the case and the ALJ's and Board's recommendations.  The Director shall then enter an order as shall be proper for the disposition of the matter.  The order shall be served upon all parties by certified mail, registered mail, or email.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.195  Authority of Administrative Law Judge

An Administrative Law Judge presiding over a hearing shall have all powers necessary and appropriate to conduct a full, fair and impartial hearing, including the authority to:

a)         Administer oaths and affirmations;

b)         Rule upon offers of proof and receive relevant evidence;

c)         Issue subpoenas as provided in Section 1700.130;

d)         Rule on issues relating to document exchange;

e)         Regulate the course of the hearing and the conduct of the parties and their counsel:

1)         Contumacious conduct at any hearing before the ALJ shall be grounds for exclusion from the hearing; and

2)         If a witness or a party refuses to answer a question after being directed to do so or refuses to obey an order to provide documents, the ALJ may make orders with regard to the refusal that are just and appropriate, including, but not limited to, excluding the testimony of witnesses, entering an order of default, entering an order that certain facts are deemed admitted for purpose of the proceeding, or entering an order denying the application or complaint of a party;

f)         Consider and rule upon procedural requests;

g)         Hold conferences for the settlement or simplification of the issues;

h)         Examine witnesses and direct witnesses to testify, limit the number of times any witness may testify, limit repetition, irrelevant, unresponsive or cumulative testimony, and set reasonable limits on the amount of time each witness may testify at deposition and/or hearing;

i)          Make or cause to be made an inspection of the retailer, or place of employment involved;

j)          Enter into Consent Decrees; and

k)         Make decisions in accordance with this Part, the Lottery Law and 11 Ill. Adm. Code 1770.

(Source:  Added at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.200  Disqualification of an Administrative Law Judge

a)         Any party to a proceeding may request the Director to disqualify the Administrative Law Judge if that party believes that the ALJ is biased against that party or that a conflict of interest exists on the part of the ALJ.  Any request for disqualification must be in writing, accompanied by an affidavit signed and dated by the party setting out the specific facts upon which the claim of bias or conflict of interest is based, and must be filed with the Chief Administrative Law Judge. An adverse ruling, in and of itself, shall not constitute bias or conflict of interest. [5 ILCS 100/10-30]  If the Director finds that bias or conflict of interest exists, the Director shall appoint another ALJ to continue the proceeding.

b)         ALJs may recuse themselves from presiding over a matter due to conflict of interest or bias.

c)         In any contested case, the Director shall appoint and employ an attorney, licensed to practice in Illinois, to serve as Administrative Law Judge on behalf of the Board.  The Director may also appoint and employ an attorney, licensed to practice in Illinois, to serve as ALJ to conduct any hearing in the Director's stead.  The ALJ shall be empowered to conduct the hearing, question witnesses, make rulings on motions and objections, and submit findings of fact, conclusions of law, and the ALJ's recommendation to the Board or Director at the conclusion of the case.

d)         It shall not be a bar to employment as an Administrative Law Judge that the attorney is also a Department employee.

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.210  Ex Parte Communications

a)         After a notice of hearing has been issued, communications between a party to a proceeding and the Administrative Law Judge, Board, Director or an employee of the Department, whether oral or written, direct or indirect (ex parte communications), are generally prohibited, except upon notice and opportunity for all parties to participate.  However, communications solely for the purpose of determining procedural or administrative requirements, or communications between agency employees or between an Administrative Law Judge and a personal assistant, will not be considered ex parte communications for the purposes of this Section.  (See 5 ILCS 100/10-60.)

b)         Any written ex parte communications, as well as a written summary of any oral ex parte communications, shall become part of the record of any proceeding before the Department, but shall not be the basis for any finding of fact by the Administrative Law Judge, the Board or the Director.  (See 5 ILCS 100/10-35 and 10-60.)

(Source:  Amended at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.220  Consent Decree

If the parties to the proceeding resolve, settle or compromise their dispute and the parties desire the Administrative Law Judge to enter a consent decree in order to resolve the matter pursuant to section 10-25 of the Illinois Administrative Procedure Act, the ALJ, as part of the settlement agreement, shall enter the consent decree as long as the proposed consent decree does not violate the Lottery Law under which the contested case was brought or 11 Ill. Adm. Code 1770.

(Source:  Added at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.230  Settlement Agreements

Terms of settlement shall be in writing and signed by the parties.  The Administrative Law Judge has no authority to change, amend or modify the settlement agreement of the parties to the proceeding.

(Source:  Added at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.240  Non-Compliance and Enforcement of Settlement Agreements

When the Department believes that a party has violated written terms of a settlement approved by the Administrative Law Judge under Section 1700.195 and 1700.220, it may file a notice with the ALJ, with service upon all parties, specifying the nature of the alleged violation and praying for an order authorizing the Department to seek judicial enforcement.

(Source:  Added at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.250  Communication Aids and Service

a)         The Department will provide oral or sign language interpretation services upon request for persons seeking information or participating in a hearing.  The Administrative Law Judge may order the use of these such services at a hearing.

b)         A person who needs oral or sign language interpretation services for a hearing shall request them as early as possible to avoid delay.

c)         An interpreter at a hearing shall swear or affirm under penalty of perjury to interpret accurately, completely, and impartially.

(Source:  Added at 47 Ill. Reg. 13886, effective September 18, 2023)

Section 1700.260  Record of Hearings

a)         The record of the hearing in a contested case shall include: 

1)         All pleadings presented before the Administrative Law Judge (including notices, responses, admissions, stipulations of fact, motions and rulings on these issuances);

2)         All documentary evidence;

3)         A transcript of the proceedings;

4)         The findings of fact, conclusions of law, and recommendation of the ALJ;

5)         The findings of fact, conclusions of law, and recommendation of the Board; and

6)         The order of the Director, which shall constitute a final administrative decision pursuant to Section 10-25 of the Illinois Administrative Procedure Act.

b)         The record shall be copied and assembled by the Department and certified by the Director upon any complaint for administrative review.  The party seeking the administrative review shall pay the copying fee and the certification fee.  An index of the record, with each page of the record numbered in sequence, will be prepared by the Department.

(Source:  Added at 47 Ill. Reg. 13886, effective September 18, 2023)