23 CAR § 358-1203 – Determination of suitability

(a) A person is not subject to licensing in connection with activities performed as an independent contractor provided that a person who is licensed under the provisions of this section assumes responsibility for the design, development, programming, production, or composition of the control program in Arkansas.
(b) An independent contractor may be required by the Arkansas Racing Commission, upon recommendation of the commission, to file an application for a finding of suitability to be an independent contractor for a licensed manufacturer.
(c)
1. (1) The commission shall give written notice to the independent contractor of its decision to require the filing of an application for a finding of suitability.
2. (2) Unless otherwise stated by the commission in its written notice, an independent contractor who has been ordered to file an application for a finding of suitability to be an independent contractor may continue to perform under a contract with a manufacturer unless and until the commission finds the independent contractor unsuitable.
(d) If the commission finds an independent contractor to be unsuitable:
1. (1) All licensed manufacturers shall, upon written notification, immediately terminate any existing relationships, direct or indirect, with such independent contractor;
2. (2) No new gaming device with a control program that contains software, source language, or executable code created in whole or in part by the unsuitable independent contractor shall be approved; and
3. (3) Any previously approved gaming device with a control program that contains software, source language, or executable code created in whole or in part by the independent contractor is subject to revocation of its approval if the reasons for the finding of unsuitability also apply to that gaming device.
(e) Failure of a licensed manufacturer to terminate any association or agreement with an independent contractor after receiving notice of the determination of unsuitability constitutes an unsuitable method of operation.
(f) The commission retains jurisdiction to determine the suitability of an independent contractor regardless of whether or not the independent contractor has any active agreements with licensed manufacturers or is otherwise no longer functioning as an independent contractor.
(g) A failure on the part of an independent contractor to submit an application for a finding of suitability within thirty (30) days after being demanded to do so by the commission shall constitute grounds for a finding of unsuitability of the independent contractor.
(h)
1. (1) An independent contractor, or employee thereof, is not considered a gaming employee in relation to any work conducted designing, programming, producing, or composing a control program within the scope of an agreement entered into with a licensed manufacturer.
2. (2) An independent contractor or employee thereof is in no way exempt from being classified as a gaming employee for such work performed outside the scope of an agreement with a licensed manufacturer or for other work performed related to gaming.