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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsNovember 2016

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10 DE Admin. Code 202
AND NOW, this 1st day of November, 2016, in accordance with 29 Del. C. §§4805(a) and 10003, and for the reasons stated below, this ORDER is adopted to amend Section 28 of the Office of the State Lottery's regulations on the policies and procedures regarding Delaware Freedom of Information (FOIA) requests as set forth in its existing regulations, 10 DE Admin. Code 202-28.0.
Pursuant to 29 Del.C. §10113(b)(1), regulations describing an agency's procedures for obtaining information are exempted from the notice and public comment requirements of 29 Del.C. Ch. 101.
In order to comply with 29 Del. C. §10003, and based on the authority of the Director of the Office of the State Lottery to make non-substantive changes to regulations to make them consistent with changes in law, the Director is adopting final changes to its regulations governing the policies and procedures regarding FOIA requests. Pursuant to 29 Del.C. §10113(b)(5), such changes are exempt from the notice and public comment requirements of 29 Del.C. Ch. 101.
The Office of the State Lottery follows the FOIA policy and procedures set forth in 8 DE Admin. Code 500. Hence, Section 28 of 10 DE Admin. Code 202 is hereby amended to rescind and remove Section 28 in its entirety.
“Act” or “Law” means the Delaware State Lottery Law, Chapter 348, Volume 59, of the Laws of Delaware, as may be amended from time to time.
“Bank” means and includes all banks, banking associations, and trust companies organized under the authority of this State or the United State whose principal place of business is within the State.
“Director” means the Director of the State Lottery Office or Acting Director as stipulated in the Act.
“Licensee” or “Agent” means a person who has been licensed to sell lottery tickets.
“Lottery” or “State Lottery” means the lottery established and operated pursuant to the Act.
“Lottery Property” means and includes but is not limited to any Agent’s License, unsold tickets, forms, promotional materials or any other tool issued to the agent by the State Lottery Office for the purpose of selling tickets.
“Office” or “Lottery Office” means the State Lottery Office created in the Act.
“Person” means and includes an individual, association, corporation, club, trust, estate, society, company, joint stock company, receiver, trustee, assignee, referee, or any other person acting in a fiduciary or representative capacity, whether appointed by a court or otherwise, and any combination of individuals. “Person” shall also mean and include all departments, commissions, agencies, and instrumentalities of the State, including counties and municipalities and agencies and instrumentalities thereof.
“Regulations” means the regulations promulgated by the Lottery Office for the operation of the lottery.
“Ticket” means a lottery ticket issued by the State Lottery Office for sale to the general public.
23.2 For Grand Prizes in the Lottery’s Powerball game, those prizes shall be paid at the election of the player made no later than 60 days after the player becomes entitled to the prize with either a per winner annuity or cash payment. If the payment election is not made at the time of purchase and is not made by the player within 60 days after the player becomes entitled to the prize, then the prize shall be paid as an annuity prize. An election for an annuity payment made by a player before ticket purchase or by system default or design may be changed to a cash payment at the election of the player until the expiration of 60 days after the player becomes entitled to the prize. The election to take the cash payment may be made at the time of the prize claim or within 60 days after the player becomes entitled to the prize. An election made after the winner becomes entitled to the prize is final and cannot be revoked, withdrawn, or otherwise changed. Shares of the Grand Prize shall be determined by dividing the cash available in the Grand Prize pool equally among all winners of the Grand Prize. Winner(s) who elected a cash payment shall be paid their share(s) in a single cash payment. The annuitized option prize shall be determined in accordance with the rules and procedures approved by the Multi-State Lottery Association, of which the Delaware Lottery is a participating member. Neither the Multi-State Lottery Association nor the member lotteries including the Delaware Lottery shall be responsible or liable for changes in the advertised or estimated annuity prize amount and the actual amount purchased after the prize payment method is actually known to the Multi-State Lottery Association. In certain instances announced by the Multi-State Lottery Association Product Group, the Grand Prize shall be a guaranteed amount and shall be determined pursuant to MUSL rules and procedures. If individual shares of the cash held to fund an annuity is less than $250,000, the MUSL Product Group, in its sole discretion, may elect to pay the winners their share of the cash held in the Grand Prize pool. All annuitized prizes shall be paid annually in twenty-five equal payments with the initial payment being made in cash, to be followed by twenty-four payments funded by the annuity.
28.3 Exemptions. Documents determined by the Lottery Office not to be public pursuant to 29 Del.C. §10002(d) will not be available for examination or public review.
298.0 Fingerprinting Procedures
298.1 State Bureau of Identification
298.1.1 The applicant or licensee will contact the State Bureau of Identification to make arrangements for fingerprint processing.
298.1.2 A fee is required for state and federal processing of fingerprint cards and criminal history records, payment shall be made in the form of certified check or money order payable to the Delaware State Police Video Lottery Enforcement Unit (VLEU). The fee is set by the State Bureau of Identifications and payment is to be made directly to that agency.
298.1.3 the waiver form to release criminal history record information to the Director. At the time of the processing, the applicant must show proof of identification to complete the criminal history request and pay the appropriate fee.
298.1.3.1 The applicant must contact the VLEU and submit the completed license application form and fingerprint verification/receipt for processing. No investigation will proceed without a copy of the SBI fingerprinting receipt.
298.1.3.2 Investigators assigned to the VLEU will conduct an initial investigation to determine the suitability of the applicant. If the applicant is approved, a temporary license may, at the discretion of the Director, be issued at that time pending SBI's final report. This temporary license is valid for thirty (30) days from the issue date.
298.1.3.3 A waiver will be signed by the applicant indicating that should an unfavorable criminal history background check be received by the VLEU, including any detrimental information or failure to fully disclose criminal history, the applicant's temporary license may be revoked. If revoked, the applicant will then be required to respond to VLEU within five (5) working days for another interview.
298.1.3.4 Should the Director determine the applicant is to be fully licensed, the Lottery shall send the applicant a letter stating such.
298.1.4 Certified copies of the criminal history will be forwarded to the Director of the Lottery, with a copy available to the applicant upon request.
298.1.5 A Verification Form of Processing will be completed by Delaware State Police personnel and provided to the applicant.
298.1.6 The State Bureau of Identification shall act as the intermediary for the receipt of the federal criminal history record checks performed by the Federal Bureau of Identification. The State Bureau of Identification shall forward the results of these federal record checks to the attention of the Lottery Director in a confidential manner.
298.2 Lottery Office
298.2.1 Determination of Suitability and Appeal Process
298.2.1.1 A person subject to 29 Del.C. §4807A shall have the opportunity to respond to the Lottery Director regarding any information obtained prior to a determination of suitability for licensure. Such a response shall be made within ten (10) working days of the person’s receipt of the criminal background information from the State Bureau of Identification. The determination of suitability for licensure shall be made by the Lottery pursuant to the factors listed in 29 Del.C. §4807A in regard to an applicant’s criminal history. The Lottery will also consider the factors contained in 29 Del.C. Ch. 48 and the Lottery Regulations in considering agent applications for licensure.
298.2.1.2 The Lottery shall communicate the results of the determination of suitability in writing, within thirty (30) days of the receipt of the person’s response to the criminal history information, unless extenuating circumstances require a longer period. If a determination is made to deny a person licensure, the person shall have an opportunity to appeal for reconsideration as set out below.
298.2.1.2.1 Appeal shall be initiated by a person notified that he/she is being denied a license pursuant to 29 Del.C. §4807A and in compliance with Section 5(c) of these Regulations by submitting a letter of appeal to the Lottery Director within ten (10) working days of the receipt of the written notice.
298.2.1.2.2 The appeal shall be reviewed by the Lottery Director and the person shall be given the right to be heard by the Director or the Director’s designee within ten (10) working days of the receipt of letter of appeal, unless extenuating circumstances require a longer period.
298.2.1.2.3 A written decision shall be rendered by the Director or the Director’s designee within thirty (30) working days of the hearing, unless extenuating circumstances require a longer period. All decisions made by the Lottery under this appeal procedure are final.
298.3 Confidentiality
298.3.1 All records pertaining to criminal background checks, pursuant to 29 Del.C. §4807A and copies of suitability determinations of applicants for licensure, shall be maintained in a confidential manner, including, but not limited to, the following:
298.3.1.1 Access to criminal background check records, and letters of reference accompanying out-of-state criminal background checks, and determinations of suitability of applicants shall be limited to the Director and designated personnel;
298.3.1.2 All such records shall be kept in locked, fireproof cabinets;
298.3.1.3 No information from such records shall be released without the signed approval of and appropriate signed release of the applicant.
298.4 Subsequent Criminal History Information
298.4.1 Subsequent criminal history shall be sent by the State Bureau of Identification to the Director of the Lottery and shall be used by the Lottery in making a determination about the person’s continued suitability as a licensee.
3029.0 Non-Discrimination on the Basis of Disability in Delaware Lottery Programs
3029.1 Definitions
“Accessible” means complying with the technical requirements found in the ADA Accessibility Guidelines (ADAAG).
“Accessible Route” means a continuous unobstructed path connecting all accessible elements and spaces of a building or facility. Interior accessible routes may include corridors, floors, ramps, elevators, lifts, and clear floor space at fixtures. Exterior accessible routes may include parking access aisles, curb ramps, crosswalks at vehicular ways, walks, ramps, and lifts.
“ADA” means the Americans with Disabilities Act (42 United States Code. §§12101-12213 and 47 United States Code §225 and §611).
“Director” means the Director of the State Lottery Office.
“Entrance” means any access point to a building or portion of a building or facility used for the purpose of entering. An entrance includes the approach walk, the vertical access leading to the entrance platform, the entrance platform itself, vestibules if provided, the entry door(s) or gate(s), and the hardware of the entry door(s) or gate(s).
“Facility” means all or any portion of buildings, structures, site improvements, complexes, equipment, roads, walks, passageways, parking lots, or other real or personal property located on a site.
“Inspection Report” means a completed survey of the retailer or applicant facility that identifies barriers to program accessibility, if any and suggest possible solutions.
“Lottery Program” means on-line and instant games offered to the public through retailer licensees.
“Lottery” or “State Lottery Office” means the lottery established by the Delaware State Lottery Law, Chapter 348, Volume 59, of the Laws of Delaware.
“Lottery Retailer” or “Retailer” means a business entity housed in a specific retail facility that is under license with the Delaware Lottery to provide lottery related services.
“Service Site” means an area within a lottery retailer facility where a customer can purchase a lottery related product. This is usually the cashier’s station.
“Technically Infeasible” means, with respect to an alteration of a building or a facility, that it has little likelihood of being accomplished because existing structural conditions would require removing or altering a load-bearing member which is an essential part of the structural frame; or because other existing or site constraints prohibit modification or addition of elements, spaces, or features which are in full and strict compliance with the minimum requirements for new construction and which are necessary to provide accessibility.
3029.2 Purpose
3029.2.1 The Americans with Disabilities Act (P.L. 101-336, U.S.C. §§ 12131-12134), known as the ADA, prohibits discrimination on the basis of disability in the delivery of programs offered by entities of state or local government. The purpose of this regulation is to ensure that the Delaware Lottery is in compliance with the ADA by ensuring that people with disabilities have access to Delaware Lottery programs.
3029.2.2 In defining the scope or extent of any duty imposed by these regulations including compliance with the standard of accessibility defined in paragraph 3(b), higher or more comprehensive obligations established by otherwise applicable federal, state or local enactment may be considered.
3029.3 General Requirements
3029.3.1 Prohibition of discrimination. No lottery retailer shall discriminate against any individual on the basis of a disability in the full and equal enjoyment of lottery related goods, services, facilities, privileges, advantages, or accommodations of any lottery licensed facility.
3029.3.2 Standard of accessibility. Each Retailer is required to meet a standard of accessibility that enables people with disabilities, including those who use wheelchairs, to enter the lottery licensed facility and participate in the lottery program. An accessible route must be provided comprised of the following accessible elements:
3029.3.2.1 Parking, if parking is provided to the general public;
3029.3.2.2 Exterior route connecting parking (or a public way if no parking is provided) to an accessible entrance;
3029.3.2.3 Entrance;
3029.3.2.4 Interior Route connecting the entrance to a service site.
3029.3.3 Each element shall meet the design standards set forth in the ADA Accessibility Guidelines (ADAAG) published in the Federal Register on July 26, 1991.
3029.4 New License Applicants
3029.4.1 License applicants. The State Lottery Office shall inspect the site of applicants for compliance with this regulation prior to granting a license. The State Lottery Office will not grant a license to an applicant who is not in compliance with this regulation.
3029.4.2 Inspection reports. The State Lottery Office, prior to granting a license, shall provide lottery applicants with an Inspection Report that shall identify barrier removal actions, if any, necessary to provide program accessibility. The identified actions must be completed prior to the granting of a license.
3029.5 Current Retailers
3029.5.1 The State Lottery Office shall inspect the site of each lottery retailer for compliance with this regulation.
3029.5.2 Inspection reports. The State Lottery Office shall provide to all current retailers an Inspection Report that shall identify barrier removal actions necessary to provide program accessibility. The identified actions must be competed within 90 days of receipt of the Inspection Report.
3029.5.3 Extensions. The Director may grant an extension of up to 90 days to allow a current retailer to complete barrier removal actions identified in the Inspection Report.
3029.5.3.1 Any request for an extension must be in writing, and shall include specific reasons for an extension and supporting documentation.
3029.5.3.2 The Director shall grant an extension only upon showing of good cause.
3029.6 Permitted exemptions
3029.6.1 The following exemptions to the requirements of this rule may be granted by the Director. The Director shall review the circumstances and supporting documentation provided by the retailer to determine if the retailer’s request for an exemption should be granted. The Director shall determine the type and scope of documentation to be required for each exemption classification. All decisions made by the Director shall be final; any retailer whose request for an exemption is denied by the Director shall be required to satisfy the requirements of this rule as a condition for maintaining its eligibility for a Lottery retailer contract.
3029.6.1.1 Historic properties. To the extent a historic building is exempt under federal law, and if barrier removal would threaten or destroy the historic significance of the structure, this rule shall not apply to a qualified historic building or facility that is listed in or is eligible for listing in the National Register of Historic Places under the National Historic Preservation Act or is designated as historic under State or Local law.
3029.6.1.2 Legal impediment to barrier removal. Any law, act, ordinance, state regulation, ruling or decision which prohibits the lottery retailer from removing a structural impediment or from making a required improvement to the facility may be the basis for an exemption to this rule. A lottery retailer requesting an exemption for a legal impediment will not be required to formally seek a zoning variance to establish such impediment, but will be required to document that they have applied for and have been refused whatever permit(s) are necessary to remove the identified barrier(s).
3029.6.1.3 Landlord refusal. An exemption may be granted based on the refusal of a landlord to grant permission to a Lottery retailer and/or to pay to make improvements required by the Lottery under this rule or based on the refusal of a landlord to pay for improvements required by the Lottery under this rule. The exemption shall only apply to the retailer’s current term and does not include any possible renewal periods under the lease. To request such an exemption, the retailer must submit documentation to the Director that the retailer requested the Landlord’s permission and financial participation to make the required structural improvements, that such request was denied by the landlord, and the reasons for the denial. In making a decision on the exemption request, the Director shall take into consideration, but not be limited to, the sufficiency of the reasons provided by the landlord for denying the retailer’s request.
3029.6.1.4 Undue financial hardship. A limited exemption may be granted if a retailer can demonstrate that the cost of removing a structural barrier or of making the required structural modification(s) to the retailer’s facility is an undue financial hardship in that the cost of making such a change(s) exceeds 25% of the retailer’s compensation from the Lottery for the prior calendar year (An annualized sales figure based upon the retailer’s most current 13-week sales period shall be used for those retailer locations with less than a full year’s history of sales.) Under the terms of this limited exemption, a retailer would be required to annually make those improvements and modifications that can be financed within an amount that is approximately equal to 25% of the total compensation earned from the Lottery in the prior calendar year. This requirement would continue on a year-to-year basis until all the improvements and modifications required by this rule have been completed. A retailer shall provide all supporting documentation requested by the Director to substantiate the cost estimates of making the required improvements to the retailer’s location.
3029.6.1.5 Technical Infeasibility. A permanent exemption may be granted if a retailer can demonstrate that the removal of architectural barriers identified in the inspection report is not possible due to technical infeasibility. If such a claim is made, the Lottery may have the barrier removal action evaluated by a person knowledgeable in accessibility codes and construction to determine the merits of the claim.
3029.6.1.6 Alternative methods. Where an exemption is granted in accordance with the provisions of this sub-chapter, the lottery retailer shall make the lottery related goods and services available through alternative methods. Examples of alternative methods include, but are not limited to:
3029.6.1.6.1 Providing curb service;
3029.6.1.6.2 Directing by signage to the nearest accessible lottery retailer.
3029.7 Complaints Relating to Non-Accessibility
3029.7.1 An aggrieved party may file an accessibility complaint with the Lottery Director or designee for review. Complaints must be in writing and, where possible, submitted on an ADA complaint form. As soon as practical, but not later than 30 days after the filing of a complaint, each complaint will be investigated. After the completion of the investigation, if the agency determines that the lottery retailer is not in compliance with this regulation, a letter of non-compliance will be issued to the lottery retailer with a copy to the complainant. If the lottery retailer is determined to be in compliance, a letter so stating will be mailed to the retailer and complainant. Regardless of whether a complaint has been filed, the agency will issue a letter of non-compliance within 30 days after the completion of an onsite inspection of the lottery retailer facility if the agency determines that the lottery retailer is not in compliance with this regulation.
3029.7.2 If the letter of non-compliance shows deficiencies in the accessibility of the retailer facility, the lottery retailer shall submit a plan to the agency within 30 days of the issuance of the letter of non-compliance. The plan shall describe in detail how the lottery retailer will achieve compliance with this regulation. Compliance shall be accomplished within 90 days of the letter of non-compliance. The Lottery may, upon request and for good cause, grant the lottery retailer additional time to submit the plan.
3029.7.3 Within 20 days of the submission of the plan to the agency, the Lottery shall notify the lottery retailer of the agency’s acceptance or rejection of the plan. If the plan is rejected, the notification shall contain the reasons for rejection of the plan and the corrections needed to make the plan acceptable to the Lottery. If the retailer agrees to make the required corrections, the Lottery shall accept the plan as modified.
3029.7.4 If a retailer fails to submit a plan within 30 days of issuance of the letter of non-compliance and has not requested an extension of time to submit a plan, the Lottery may proceed to initiate termination proceedings.
3029.7.5 If approved, the plan must be completely implemented within 60 days of the agency’s notice of approval. The Lottery may, upon request, grant the lottery retailer additional time for good cause. Notice of any extension will also be sent to the complainant, if applicable. Any such extension will commence immediately upon expiration of the first 60 day period.
3029.7.6 If the corrective action taken by the lottery retailer corrects the deficiencies specified in the letter of non-compliance as originally issued or as later revised or reissued or if the onsite inspection of the lottery retailer facility reveals compliance with this regulation, the Lottery will issue a notice of compliance. Until this notice is issued, a complaint will be considered pending.
3029.7.7 Failure to make the identified modifications in compliance with the accessibility standards and within the required time period will result in the initiation of proceedings to suspend or revoke the lottery license by the agency.
3029.7.8 A license will be suspended if the Lottery determines that the lottery retailer has made significant progress toward correcting deficiencies listed in the compliance report, but has not completed implementation of the approved compliance plan. If the Lottery determines that the lottery retailer has not made a good faith effort to correct the deficiencies listed in the compliance report, this inaction will result in the revocation of the lottery license for that lottery licensed facility.
3029.7.9 While proceedings to suspend or revoke a lottery retailer’s license are pending pursuant to this regulation, and until a notice of compliance is issued pursuant to 30.7.3 29.7.3 of this section, the Lottery shall withhold incentive payments from the lottery retailer. In addition, if a license is revoked pursuant to this regulation, and incentive payments and other privileges have been withheld from the affected retailer pending review of the complaint, the lottery retailer forfeits any claim to such incentive payments or other privileges.
3029.8 Request for Hearings
3029.8.1 If the Lottery proposes the denial of an application for a license or the suspension or revocation of a lottery retailer’s license pursuant to this regulation, the agency shall give the applicant or lottery retailer written notice of the time and place of the administrative hearing not later than thirty (30) days before the date of the hearing.
3029.8.2 All relevant rules of evidence and time limits established in these rules shall apply to hearings conducted under this regulation.
3029.9 Non-Exclusivity of Remedies
3029.9.1 Remedies established by these regulations are not intended to supplant, restrict or otherwise impair resort to remedies otherwise available under law, including those authorized by the ADA and Del. Code Ann., Title 6, Ch. 45 (1993).
Last Updated: December 31 1969 19:00:00.
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