9 NYCRR Part 5116 - Executive Department

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Source versions current through Nov 15, 2021 - Sep 30, 2026 across sections

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9 NYCRR 5116.1 - Video lottery gaming agent’s marketing and promotion program

Source version current through Nov 15, 2021

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Nov 15, 2021
Related Register notice: SGC-29-21-00010-A · Adopted rule
Related notice published: Nov 24, 2021
Related notice effective date: Nov 24, 2021

(a)Requirements for marketing plan.

In accordance with the act, each video lottery gaming agent shall dedicate a portion of its vendor fee to fund a marketing and promotion program to be used by such video lottery gaming agent for the reimbursement of marketing, promotion and associated costs incurred by the video lottery gaming agent for such agent’s video lottery gaming operations and pari-mutuel horse racing operations pursuant to an approved marketing plan pursuant to this Part, so long as such costs associated with pari-mutuel horse racing operations simultaneously encourage increased attendance at such agent’s video lottery gaming facilities.

All such marketing, promotion and associated costs incurred by any video lottery gaming agent shall be:

(1)consistent with the customary manner of marketing and promoting comparable operations in other states and as described in an approved marketing plan; and

(2)subject to the overall supervision of the commission.

(b)Violation for unapproved expenses.

Any marketing or promotion expense incurred by a video lottery gaming agent that is not approved by the commission or identified in a marketing plan approved by the commission shall be a violation of the video lottery gaming agent's license, the act and this Part.

9 NYCRR 5116.2 - Marketing and promotion plan.

Source version current through Sep 30, 2026

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 30, 2026
Related Register notice: SGC-29-21-00010-A · Adopted rule
Related notice published: Nov 24, 2021
Related notice effective date: Nov 24, 2021

Marketing and promotion plan.

(a)Contents. Each video lottery gaming agent shall prepare annually a marketing and promotion plan (the marketing plan) for the video lottery gaming facility. Each annual marketing plan shall be submitted to the commission for review and approval as described in this Part. An annual marketing plan shall include a summary of projected net machine income and projected marketing expenditures by category, in a standard worksheet format prescribed by the commission. The marketing plan worksheet shall include budgeted marketing expenditures by month and in total for each standard category. The commission shall review such worksheet as part of the overall plan approval.

(b)Violation. The failure to submit any marketing plan when due to the commission shall be a violation of the video lottery gaming agent’s license, the act and this Part.

(c)Requirements. Each annual marketing plan shall:

(1)be prepared in accordance with the format prescribed by the commission; and

(2)fully describe, in a narrative form, subject to the approval of the commission, the marketing and promotional activities that the video lottery gaming agent proposes for the applicable video lottery gaming facility for the subsequent 12-month period commencing on the first day of January of any calendar year. Such description shall include the overall strategy of how the portion of the vendor’s fee used to fund the marketing and promotion program will be used for marketing, promotional and associated costs consistent with the customary manner of marketing and promoting comparable operations in the video lottery gaming entertainment industry in other states, and that are expected to be implemented at such video lottery gaming facility on a monthly, quarterly and annual basis; the target market for such marketing and promotion; the anticipated effect (return on investment) of the marketing, promotional and associated costs described; any and all media buys advertising the video lottery gaming facility, whether directly or indirectly; and an itemization of the projected budget for all marketing and promotional expenses on a monthly, quarterly and annual basis.

(d)Time for submission. Each annual marketing plan must be submitted to the commission for review and approval not earlier than 120 days and not later than 90 days prior to January 1 of any calendar year.

(e)Commission review. The commission shall review the annual marketing plan upon receipt and provide objections, questions or comments, if any, to the video lottery gaming agent within 45 days.

(f)Approval and implementation. If the marketing plan is approved by the commission without comment, then the video lottery gaming agent may proceed with the marketing plan’s implementation commencing on the first day of January of any calendar year.

(g)Commission objection. In the event the commission objects or comments on the marketing plan, or any portion thereof, such objection, comment or question shall be delivered to the video lottery gaming agent in writing together with a disapproval notice of the submitted marketing plan in whole or in part.

(h)Amended plan after commission objection. Not later than 15 days from the receipt by the video lottery gaming agent of a marketing plan disapproval notice from the commission, or such longer time as the commission and the video lottery gaming agent may agree in writing, the video lottery gaming agent shall address the commission’s objections or comments and submit an amended marketing plan to the commission for review. Upon submission of the amended marketing plan to the commission, a new 45-day time period for commission review will commence as described by this part.

(i)Interim marketing plan. In the event the annual marketing plan is not approved by the commencement date of the marketing plan as agreed to by the commission for any year, the commission may, but shall not be required to, enter into an interim marketing plan agreement with the video lottery gaming agent for a period not to exceed 90 days from such commencement date. Such interim marketing plan shall be in such form as approved by the commission and govern the expenditure from the marketing and promotion program during such 90-day period for marketing, promotion and associated costs approved in such interim marketing plan. In the event the commission does not approve an interim marketing plan, or in the event an interim marketing plan expires, the video lottery gaming agent shall be in violation of this Part and the commission may impose fines.

(j)Adjustments. During any fiscal quarter covered by a marketing plan, the video lottery gaming agent may submit proposed adjustments, including an adjusted marketing plan worksheet and supporting documentation, to the marketing plan to the commission for review and approval. The commission shall have 15 days from the receipt of any proposed adjustment(s) to the marketing plan to review, approve or disapprove such adjustments in writing.

(1)In the event the proposed adjustments to the marketing plan are approved by the commission, written approval shall be sent to the video lottery gaming agent and the marketing plan shall be deemed amended accordingly.

(2)In the event such adjustments are disapproved by the commission, such disapproval, and the reason(s) therefore, shall be sent to the video lottery gaming agent in writing.

9 NYCRR 5116.4 - Marketing and promotion plan implementation

Source version current through Nov 15, 2021

A matched Register action is not later than the compiled-text reference date.

Top

Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Nov 15, 2021
Related Register notice: SGC-29-21-00010-A · Adopted rule
Related notice published: Nov 24, 2021
Related notice effective date: Nov 24, 2021

(a)Review of books and records.

The commission or the commission’s representative may, at the commission’s discretion, review the books and records of the video gaming agent, to determine additional needs for assurance regarding utilization of the funds from the marketing and promotion program. Each video gaming agent shall maintain sufficient documentation and a clear audit trail to support any and all marketing expenditures.

(b)Violation for failure to submit monthly worksheet.

The failure of the video lottery gaming agent to submit any monthly worksheet required by this Part shall be a violation of such agent’s license, the act and this Part.

(c)Reports.

(1)The commission shall review each scheduled or required report submitted by the video lottery gaming agent and audit the same against the approved marketing plan. Exceptions, discrepancies or questionable spending identified by the commission must be explained by the video lottery gaming agent in a timely manner to the satisfaction of the commission, but in no event later than 30 days from the date of the commission’s initial inquiry. The failure of the video lottery gaming agent to adequately respond to any inquiry of the commission shall be a violation of this Part and may result in commission actions to include, without limitation, the imposition of fines.

(2)A video lottery gaming agent shall prepare each report in a professional manner detailing the marketing expenses to ensure that only qualified marketing expenses have been included. Qualified marketing expenses are defined in section 5116.5 of this Part and in guidance documents as the commission may issue. Should the commission determine that a video lottery gaming agent has submitted non-qualified expenses, appropriate penalties may be applied.

(3)The monthly marketing and promotion program expense report shall, without limitation, summarize the expenditure made and provide details and supporting documentation as determined by the commission in evidence of the expenditures.

(d)Sanctions.

In the event a video lottery gaming agent cannot explain adequately an expenditure or discrepancy the commission raises, or in the event any violation of this Part remains uncured for a period of one through 30 days, the commission, in addition to any other remedy permitted by this Subtitle, may take any or all of the following actions

(1)impose fines; and

(2)reimburse the commission for the cost of the commission’s expenses related to researching and investigating such expenditure.

(e)Requirements after insufficient reporting

Within 45 days of the end of each quarter for an applicable marketing plan, in the event the monthly marketing expense reports are deemed insufficient at the sole discretion of the commission, the commission may require a video lottery gaming agent to provide the following information:

(1)a full and complete reconciliation of the previous quarter’s marketing, promotion and associated costs incurred; and

(2)an accounting for the cash spending related to the marketing expenses.

(f)Annual report.

Each video lottery gaming agent shall provide annually to the commission a report by an independent auditor of the content of the final annual statement of marketing expenses in a type and format prescribed by the commission.

(g)Documentation required.

Each video lottery gaming agent shall maintain sufficient documentation to support any and all of such agent’s marketing expenses.

9 NYCRR 5116.5 - Permitted marketing and promotion expenses

Source version current through Nov 15, 2021

A matched Register action is not later than the compiled-text reference date.

Top

Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Nov 15, 2021
Related Register notice: SGC-29-21-00010-A · Adopted rule
Related notice published: Nov 24, 2021
Related notice effective date: Nov 24, 2021

(a)Permissible expenses.

The following qualified marketing expenses incurred by a video lottery gaming agent pursuant to an approved marketing plan pursuant to this Part shall be reimbursable from the marketing allowance account:

(1)advertising;

(2)complimentary services;

(3)promotions;

(4)group sales;

(5)direct mail expenditures;

(6)player’s club expenses, except as otherwise provided in section 5116.9 of this Part;

(7)entertainment costs;

(8)personal service costs for the number and type of positions authorized by the commission as allowable;

(9)such other marketing expenses for which advance approval is specifically requested in writing and subsequently approved by the commission or otherwise described in official guidance released by the commission from time to time and subject to audit by the commission.

(b)Caps.

Nothing in the act or this Part shall be construed as preventing the commission to cap allowable marketing, promotion and associated costs in any category of the permitted uses of the funds from the marketing and promotion program.

(c)Cease and desist notice.

To the extent that the commission believes that marketing expenditures are inconsistent with the purpose and intent of the marketing plan, the commission may issue a cease and desist notice to the video lottery gaming agent. Upon receipt of any such cease and desist order issued by the commission, the video lottery gaming agent shall immediately cease the identified action.

(d)Hearing request following compliance with cease and desist notice.

Provided that the video lottery gaming agent has complied with any cease and desist order issued by the commission, a video lottery gaming agent may request a hearing on said action pursuant to this Subtitle.

9 NYCRR 5116.6 - Advertising

Source version current through Nov 15, 2021

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Nov 15, 2021
Related Register notice: SGC-47-18-00009-P · Proposed rule
Related notice published: Nov 21, 2018

(a)Advertising generally.

(1)The content or concept of all advertising and any advertisement shall be provided as prescribed by the commission.

(2)A video lottery gaming agent shall be responsible for all advertising and advertisements that are made by the agents or representatives of such video lottery gaming agent, regardless of whether the video lottery gaming agent participated directly in such advertising’s development, preparation, placement or dissemination.

(3)Issuance of a video lottery gaming agent license pursuant to these regulations permits conducting video lottery gaming in a manner approved by the commission. Use of any name, logo or design owned by the commission or the video lottery gaming machine manufacturers without a valid license may constitute a violation of Federal and State copyright and trademark laws. Permitted use of the logo by a licensee must be in compliance with approved guidelines.

(b)Criteria governing advertising.

(1)Approved advertising criteria shall be published from time to time by the commission.

(2)The following practices shall be prohibited with respect to all advertisements:

(i)The use or statement of any information, representation, or description that contrasts or compares video lottery gaming agents or facilities with regard to total payout.

(ii)The failure to maintain any offer for the advertised period of availability or in a quantity sufficient to meet reasonably anticipated demand. Should anticipated demand be exceeded, items of equal or greater value may be substituted on notice to the commission.

(3)No video lottery agent operating within the geographic area defined by:

(i)to the east, State Route 14 from Sodus Point to the Pennsylvania border with New York;

(ii)to the north, the border between New York and Canada;

(iii)to the south, the Pennsylvania border with New York; and

(iv)to the west, the border between New York and Canada and the border between Pennsylvania and New York,

is permitted, with respect to operations in such geographic area, to use the terms “slots,” “slot machines,” and “casino” or “casinos” for marketing or other purposes.

9 NYCRR 5116.7 - Complimentary services and items

Source version current through Nov 15, 2021

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Nov 15, 2021
Related Register notice: SGC-29-21-00010-A · Adopted rule
Related notice published: Nov 24, 2021
Related notice effective date: Nov 24, 2021

(a)Distribution of complimentary services.

(1)Neither a video lottery gaming agent nor any third party affiliate or non-affiliate shall offer or provide any complimentary service, item, cash or other item of value to any person except as set forth in the video lottery gaming agent’s marketing plan as approved by the commission and as provided for in this Part.

(2)A video lottery gaming agent shall establish and maintain a system of internal controls, subject to commission approval, for the authorization and issuance of all complimentary services and items, including cash and non-cash items. Such system of internal controls shall include, without limitation, the procedures by which the video lottery gaming agent may delegate to such agent’s employees the authority to approve the issuance of complimentary services and items, the controls in place to ensure complimentary services and items are utilized by those individuals offered such services and items, and the procedures by which conditions or limits placed upon such authority are established and modified, including limits based on relationships between the authorizer and recipient, the relationship between the video lottery gaming agent or such agent’s principals with the recipient, and shall further include effective provisions for audit purposes.

(3)For purposes of determining the level of dollar value of complimentary service to be deemed an acceptable use by the video lottery gaming agent from the marketing and promotion program:

(i)all complimentary services or items, whether or not offered or provided to players in the normal course of the video lottery gaming agent’s business, shall be allowable costs under the marketing plan of the video lottery gaming agent at amounts based upon rates established by the commission;

(ii)a complimentary service or item provided directly or indirectly to a player on behalf of the video lottery gaming agent by a third party not affiliated with the video lottery gaming agent, shall be recorded at an amount based upon the actual cost to the video lottery gaming agent of having the third party provide such service or item.

(4)The video lottery gaming operation shall record both the dollar amount of, and the number of persons provided with, each category of complimentary services or items. The complimentary services shall, at a minimum, be separated into categories for rooms, food, beverage, travel, free-play and other services.

(5)Any complimentary service or item, including a complimentary cash or non-cash item, that is issued to a player as part of a complimentary incentive program shall be subject to the requirements of this Part and the approved marketing plan. The video lottery gaming agent shall record, on a daily basis, the name of each person provided with a complimentary service(s) or item(s), the category or type of service(s) or item(s) provided, the value (as calculated in accordance with this Part or as determined by the commission) of the service(s) or item(s) provided to such person, and the signature, title or position and occupational license number of the person authorizing the issuance of such service(s) or item(s). Upon the commission’s request, a copy of this record shall be immediately submitted to the commission. This provision shall not apply to complimentary items of nominal value (e.g., a portion of coffee or soda provided to a player while on the gaming floor) that are offered to all patrons of the video gaming facility without regard to level of play.

(6)Notwithstanding any inconsistent provision of this section, the video lottery gaming agent shall not permit any video lottery gaming agent employee to authorize the issuance of a complimentary cash or non-cash item with a value of $1,000 or more unless the employee is licensed as a key employee and the authorization is co-signed by a second key employee of equal rank as identified in the approved jobs compendium.

(7)If the video lottery gaming agent provides complimentary cash or non-cash item(s) worth $1,000 or more to a player or a player’s guests within any five-day period, the video lottery gaming facility shall record the profit-based reason why such items were provided and maintain such records available for inspection by the commission upon request.

(8)The video lottery gaming agent shall submit to the commission a report listing each player who has received $1,000.00 or more in complimentary cash or non-cash item(s) within any five-day period ending during the preceding month. Such report shall be filed by the last business day of the following month and shall include the total amount of complimentary cash or non-cash items provided to each person.

(9)Notwithstanding any inconsistent provision of this section, no video lottery gaming agent shall permit any employee to authorize the issuance of a complimentary cash or non-cash item(s) with a value of $5,000 or more unless the video lottery gaming employee is licensed and functioning as the facility manager or assistant facility manager and the authorization is co-signed by a second employee who is functioning as the controller of the video lottery gaming agent.

(10)If a video lottery gaming agent provides complimentary cash or non-cash item(s) worth $5,000 or more to a player or a player’s guests within any five-day period, the video lottery gaming agent shall record the profit-based reason why such items were provided and maintain such records available for inspection by the commission upon request.

(11)In instances where complimentary service(s) or item(s) have been issued by or on behalf of the video lottery gaming agent, the video lottery gaming agent is responsible to comply with all Federal, State and local tax reporting and withholding laws and rules for all complimentary service(s) or item(s).

(12)No video lottery gaming agent shall offer or provide, either directly or indirectly, any complimentary cash or non-cash item to any player or any player’s guests except in accordance with the approved video lottery gaming agent marketing plan and these regulations.

(13)All complimentary cash or non-cash item(s) shall be disbursed directly to the player after receipt of appropriate documentation or in any other manner approved in writing by the commission in a video lottery gaming agent’s internal control submission.

(b)Alternative reporting procedures; accessible complimentary goods or services database.

(1)A video lottery gaming agent that records all information concerning complimentary services or items as required by subdivision (a) of this section in a computer database that is accessible by the commission from remote locations and conforms to standards established and approved in writing by the commission pursuant to this section may be exempt from filing the monthly marketing plan reports required by this Part.

(2)The structure and accessibility of the complimentary goods or services database shall be subject to review and approval by the commission and such submission shall include, without limitation, the following:

(i)a complete description of the computer hardware, file formats and software products to be used;

(ii)the hours of the day and the days of the week, if any, that the database will be inaccessible on a routine basis due to system maintenance or other technical reasons;

(iii)the procedures by which the commission will be able to read and copy data files, both current and stored; and

(iv)security procedures for database access and secondary data dissemination.

9 NYCRR 5116.8 - Promotions

Source version current through Nov 15, 2021

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Nov 15, 2021
Related Register notice: SGC-29-21-00010-A · Adopted rule
Related notice published: Nov 24, 2021
Related notice effective date: Nov 24, 2021

(a)Information about promotions.

Each video lottery gaming agent shall include in its marketing plan a description of each anticipated promotion, the cost of such promotion, the benefit for holding such promotion, the timing of such promotion, and any other information helpful to the commission in considering the approval of such promotion.

(b)Costs of promotions.

The actual and necessary costs of each promotion shall be funded from the marketing and promotion program as approved by the commission.

(c)Advertising content.

The video lottery gaming agent shall submit such boards and proposed images to the commission, as the commission may require, for any advertising material for any promotion.

(d)Competitive bidding.

The commission may require competitive bidding at particular dollar levels of purchasing for any promotion.

9 NYCRR 5116.9 - Player rewards club

Source version current through Nov 15, 2021

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Nov 15, 2021

(a)Each video lottery gaming agent licensed by the commission shall prior to start-up engage the services of a video lottery gaming vendor to provide such facility with a player rewards club system or the agent may provide such system.

(b)Any player rewards club system established pursuant to a marketing plan shall be open to any member of the public who is playing the authorized video lottery game at which the complimentary service is being offered. In addition, any system shall require the video lottery gaming agent to establish and maintain a system of detailed internal control procedures controlling the player rewards club program, prior to the implementation of such program, which procedures shall be maintained by a designated department approved by the commission; provided, however, that if complimentary goods or services will be issued based upon the occurrence of an event that may occur in the normal conduct of a video lottery game, the video lottery gaming agent shall submit for commission approval, in writing, a description of the internal control procedure governing the issuance of a complimentary, at least 10 days prior to the commencement of the program. Such approval shall be deemed to have been granted if it is not denied, in writing, within the 10-day period, and, provided, that such internal control procedures shall address, at a minimum:

(1)the period of time that the program will be offered. However, nothing herein shall prohibit the video lottery gaming agent from offering a program for an indefinite period of time, subject to termination upon 24 hours’ notice, in writing, to the commission;

(2)the video lottery game at which the complimentary good(s) or service(s) will be issued;

(3)the internal control procedures for determining how the winners of the complimentary good(s) or service(s) shall be determined;

(4)a description of the type and value of complimentary good(s) or service(s) that will be issued; and

(5)the procedures by which the video lottery gaming agent will pay cash or complimentary good(s) or service(s) or deliver non-cash item(s).

(c)Each video lottery gaming agent shall provide unrestricted access to all information collected by the player rewards club system to the commission and the commission’s authorized representatives.

9 NYCRR 5116.11 - Competitive bids

Source version current through Nov 15, 2021

A matched Register action is not later than the compiled-text reference date.

Top

Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Nov 15, 2021
Related Register notice: SGC-29-21-00010-A · Adopted rule
Related notice published: Nov 24, 2021
Related notice effective date: Nov 24, 2021

The actual monthly cost of any marketing or promotion expense shall be permitted as set forth in the commission-approved marketing plan, provided that, if applicable, the video lottery gaming agent shall competitively bid any marketing or promotion expense or program in excess of $50,000 and demonstrate to the commission’s satisfaction that the cost for such vendor is the lowest available proposal that satisfied the technical requirements of the bid or demonstrated to the commission’s satisfaction that costs in excess of those of the lowest bidder are outweighed by the benefits of the chosen bidder. Certain sole source and professional services may be excluded from the competitive bid requirements. Any firm or company exempt from competitive bidding must be at arm’s length from the facility.

9 NYCRR 5166.10 - Non-permitted marketing and promotion expenses

Source version current through Nov 15, 2021

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Nov 15, 2021

The following expenses incurred by a video lottery gaming agent shall not be included in the marketing and promotion program under any circumstance:

(a)payroll expenses incurred in the ordinary course of operating the video lottery gaming facility that are not marketing related;

(b)general office equipment and services, such as telephone, office supplies, photocopying, subscriptions, travel and other dues that are not marketing related;

(c)except as otherwise permitted by the act, the actual cost of any management fee paid by the video lottery gaming agent to any vendor engaged to operate the video lottery gaming facility on a daily basis;

(d)expenses that are borne ultimately by licensed video lottery terminal vendors; or

(e)rebates of cash to any vendor, vendee or other third party.

Former section numbers

9 NYCRR 5116.3: This section was repealed. No successor section has been identified.

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