Affirmative Suitability Standards for Applicants and Qualifiers

(1) Durable Finding of Suitability. (a) An Applicant or Qualifier shall have the duty to establish its suitability by clear and convincing evidence. (b) No Applicant shall be determined to be suitable in accordance with 205 CMR 215.01(1) unless and until all Qualifiers identified in 205 CMR 215.02 have been found by the Commission suitable in accordance with 205 CMR 215.01(1). (c) Before the Commission may determine that an Applicant or Qualifier is suitable in accordance with 205 CMR 215.01(1), the Bureau shall conduct an investigation into the qualifications and suitability of the Applicant or Qualifier, consistent with 205 CMR 115.03(1). At the completion of the Bureau's investigation, it shall submit a written report to the Commission, which will include recommendations and findings of fact relative to the suitability of the Applicant or Qualifier for a Sports Wagering License. The Commission shall make any finding of suitability in accordance with 205 CMR 215.01(1) after an adjudicatory proceeding pursuant to 205 CMR 101.00: M.G.L. c. 23K Adjudicatory Proceedings concerning the applicant or qualifier pursuant to 205 CMR 215.01(1)(c). (e) After the proceedings under 205 CMR 215.01(1)(d), the Commission shall issue a written determination of suitability as follows: 1. Negative Determination. If the Commission finds that an applicant or new qualifier or existing qualifier failed to meet its burden of demonstrating its suitability, the Commission shall issue a negative determination of suitability. 2. Positive Determination. If the Commission finds that an applicant or new qualifier or existing qualifier has met its burden of demonstrating its suitability, the Commission shall issue a positive determination of suitability which may include conditions and restrictions. (2) Preliminary Finding of Suitability. Notwithstanding any other provision of 205 CMR 215.00, the Commission, in its sole discretion, may determine in accordance with 205 CMR 215.01(5) that an Applicant or Qualifier is preliminarily suitable in accordance with 205 CMR 215.01(2) based on a certification pursuant to 205 CMR 215.01(2)(a) and an investigatory report pursuant to 205 CMR 215.01(2)(b). (a) To be found preliminarily suitable in accordance with 205 CMR 215.01(2), the Applicant or Qualifier must certify: that it understands it may be denied a Sports Wagering License or have a Sports Wagering License revoked if it has willfully, knowingly, recklessly, or intentionally provided false or misleading information to the Commission; 2. that, under pains and penalties of perjury, to the best of its reasonable knowledge and belief, it is suitable to hold a license pursuant to M.G.L c. 23N, §§ 5, 6, and 9(a), and 205 CMR 215.01(3) and (4); and 3. (for an Applicant): the Applicant certifies, under pains and penalties of perjury, that to the best of its reasonable knowledge and belief, all of its Qualifiers are also suitable to hold a license pursuant to M.G.L c. 23N, §§ 5, 6, and 9(a), and 205 CMR 215.01(3) and (4). (b) Before the Commission may determine that an Applicant or Qualifier is preliminarily suitable in accordance with 205 CMR 215.01(2), the Bureau shall conduct an investigation into the qualifications and suitability of the Applicant or Qualifier. The investigation may be limited to a review of the Applicant or Qualifier's 205 CMR 215.01(2)(a) certification; an Applicant's self-disclosed licensing and compliance history in other jurisdictions; self-disclosed open litigation involving an Applicant; and an open-source check concerning the Applicant or, if a natural person, a Qualifier. At the completion of the Bureau's investigation, it shall submit a written report to the Commission. (Mass. Register #1488, 2/3/2023) (c) Any evaluation of whether an Applicant or Qualifier is preliminarily suitable may take place during deliberations held in accordance with 205 CMR 218.06(4). The Bureau's report may be redacted consistent with the Massachusetts Public Records Law, G.L. c. 66, and other sources of law. After evaluating whether the Applicant or Qualifier is preliminarily suitable in accordance with 205 CMR 215.01(2)(c): 1. If the Commission finds the Applicant or Qualifier preliminarily suitable, and deems the relevant Applicant eligible to request a Temporary License, in accordance with 205 CMR 218.07(1)(a): the Commission shall issue a written determination of preliminary suitability for the Applicant or Qualifier. The determination may include conditions and restrictions. 2. Otherwise: the Commission may issue a negative determination of suitability. (3) In determining whether an Applicant or Qualifier is suitable, the Commission shall evaluate and consider the overall reputation of the Applicant and its Qualifiers, if any, including, without limitation, and on the basis of a report from the Bureau, sworn attestations, or other information or evidence available to the Commission: (a) the integrity, honesty, good character and reputation of the Applicant and its Qualifiers; (b) the financial stability, integrity, and background of the Applicant and its Qualifiers; (c) whether the Applicant and its Qualifiers have a history of compliance with gaming and Sports Wagering licensing requirements in other jurisdictions; whether the Applicant or any Qualifier, at the time of the request, is a defendant in litigation; (e) whether the Applicant or any Qualifier is ineligible to hold a license under 205 CMR 215.01(4), M.G.L. c. 23N, § 9(a), or M.G.L. c. 23N, § 6(e); (f) whether the Applicant or any Qualifier has been convicted of a crime of moral turpitude; (g) whether, and to what extent, the Applicant or any Qualifier has associated with members of organized crime and other Persons of disreputable character; and (h) the extent to which the Applicant and its Qualifiers have cooperated with the Bureau during the review of the Sports Wagering License Application. (4) The Commission shall determine that an Applicant is unsuitable if the Applicant or one of its Qualifiers: (a) has knowingly made a false statement of a material fact to the Commission; (b) has had a license revoked by any Governmental Authority responsible for regulation of gaming or Sports Wagering activities; (c) has been convicted of a felony or other crime involving embezzlement, theft, fraud, perjury or a gambling-related offense; has not demonstrated to the satisfaction of the Commission financial responsibility sufficient to adequately meet the requirements of the proposed enterprise; (e) has Affiliates or Close Associates that would not qualify for a Sports Wagering License or whose relationship with the Applicant may pose an injurious threat to the interests of the Commonwealth.