810 KAR 1:029. Hearings, reviews and appeals

Link to law: http://www.lrc.ky.gov/kar/810/001/029.htm
Published: 2015

      810 KAR 1:029.

Hearings, reviews and appeals.

 

      RELATES TO: KRS

230.355

      STATUTORY AUTHORITY:

KRS 230.355

      NECESSITY, FUNCTION,

AND CONFORMITY: To regulate conditions under which racing shall be conducted in

Kentucky. The function of this administrative regulation establishes the

procedures and requirements relating to hearings, reviews, and appeals.

 

      Section 1.

Definitions. "Steward" means a racing steward or racing judge.

 

      Section 2. Stewards'

Hearing. (1) Before holding any stewards' hearing provided for under these

administrative regulations, notice in writing shall be given to any party

charged with a violation other than a routine riding offense occurring in a

race unless waived in writing by the person charged.

      (2) Prior to a

steward hearing, the party charged with a violation shall be given the notice

required by Section 3(1) of this administrative regulation.

      (3) All stewards'

hearings shall be closed and the stewards shall cause no public announcement to

be made concerning a matter under investigation until conclusion of the

hearing, and the party charged has been notified of the decision.

      (4) The state

steward shall conduct the hearing in such a manner as to ascertain and

determine the substantial rights of the parties involved and shall not be bound

by technical rules of procedure and evidence.

      (5) All testimony

shall be given under oath and a record shall be made of the hearing, either by

use of a tape recorder or by court reporter's transcript. The party charged

with the violation may, however, waive the recording and the transcription of

the testimony. The stewards shall not be required to receive testimony under

oath in cases where their ruling is based solely upon a review of the video

tapes of a race.

      (6) If, at the

conclusion of the hearing the stewards shall find that a statute or an

administrative regulation has been violated, they shall promptly issue a

written ruling which sets forth the:

      (a) Full name of

every person charged with the violation;

      (b) Identification

of the persons, if licensed, by license classification and address;

      (c) Statute or

administrative regulation number and pertinent parts of the statute or

administrative regulation violated;

      (d) Finding by the

stewards as to the violation of the statute or administrative regulation; and

      (e) Penalty affixed

by the stewards.

      (7) Copies of the

rulings shall be delivered to each party in interest, delivered to the authority,

posted in the racing secretary's office, and forwarded to the office of the

Association of Racing Commissioners International.

      (8) At least the

state steward and one (1) association steward shall be present at all times at

the hearing.

      (9) Review and

appeal. Any party who is the subject of any order or ruling of the stewards may

apply to the authority for a review of the stewards' order or ruling, except as

to extent of disqualification for a foul in a race or as to a finding of fact

as occurred during an incident to the running of a race.

      (10) Application for

review. An application to the authority for review of a steward's order or

ruling shall be made within ten (10) days after the order or ruling is issued

in writing, and shall:

      (a) Be in writing

and addressed to the authority secretary at the authority general office;

      (b) Contain the

signature of the applicant, and the address to which notices may be mailed to

applicant;

      (c) Set forth the

order or ruling requested to be reviewed and the date;

      (d) Set forth the

reasons for making the applications; and

      (e) Request a

hearing.

 

      Section 3. Authority

Hearings. Before holding any authority hearing provided for under these

administrative regulations, the authority shall:

      (1) Give written

notice to all parties either personally or by mail. If indispensable and

necessary parties propose a large class, notice shall be served upon a

reasonable number thereof as representatives of the class. Notice as provided

in this section shall include a statement of:

      (a) Time and place

of such hearing as designated by the authority and chairman. No hearing shall

be less than five (5) days nor more than thirty (30) days after service of

notice, unless at the request of a party and in order to provide a fair

hearing;

      (b) The legal

authority and jurisdiction under which the hearing is to be held;

      (c) Specific

designation of the particular statute or administrative regulation alleged to

have been violated; and

      (d) A clear and

concise factual statement sufficient to inform each party with reasonable

definiteness of the type of acts or practices alleged to be in violation of the

statute or administrative regulations promulgated thereunder. In fixing the

times and places for hearings, due regard shall be had for the convenience of

the parties and their representatives.

      (2) The right of any

party to subpoena witnesses and documentary evidence through the authority,

employing the rights of discovery and use of subpoenas as would be available

under the Kentucky Civil Rules of Procedure, pretrial and trial procedures also

shall be governed by Kentucky Rules of Civil Procedure.

 

      Section 4. Special

Prosecutor. (1) The authority may request the Attorney General to appoint a

special prosecutor to carry the burden of proof showing a statute or an

administrative regulation violation. If the matter involves a violation and

requires a proceeding of an adversary nature; the prosecutor shall be one who

has had no prior participation in the matter of any kind. The authority also

may request that the Attorney General, or a member of his staff other than the

special prosecutor, serve as law officer for the authority to assist the

presiding officer in rendering decisions of a judicial nature. The special

prosecutor shall have the services of the Kentucky State Police for

investigatory purposes.

      (2) The authority

shall:

      (a) Permit all

parties to be represented by counsel;

      (b) Permit all

parties to respond and present evidence and argument on all issues involved;

and

      (c) Permit all

parties to examine authority memoranda and data and all other information which

is or has been considered by the commission in investigating and hearing the

matter or which may be offered as evidence.

      (3) The authority

shall administer oaths and issue subpoenas upon its own motion or when

requested by an appearing party. Each party shall pay the cost of its subpoenas

and the expenses of its witnesses. If a subpoena is disobeyed, any party may

apply to the Franklin Circuit Court for an order requiring obeyance; failure to

comply with an order from the Franklin Circuit Court shall be cause for

punishment as a contempt of the court under KRS 421.110.

      (4) Unless varied by

the authority, the order of proof in the de novo hearing may be:

      (a) Evidence

presented by the prosecution as to alleged violations;

      (b)

Cross-examination of prosecution witnesses and redirect examination;

      (c) Evidence

presented by a party charged, in defense or explanation;

      (d)

Cross-examination of party charged and his witnesses, redirect examination;

      (e) Rebuttal or

other evidence, on behalf of the prosecution or any other party in interest as

deemed pertinent by the presiding officer;

      (f) Closing argument

by party charged; and

      (g) Closing argument

by prosecution.

      (5) The authority

shall keep a record of each hearing which shall include:

      (a) All pretrial and

trial pleadings, motions, and interlocutory rulings;

      (b) All evidence

received or considered;

      (c) A statement of

matters officially noticed;

      (d) Questions and

offers of proof and rulings;

      (e) Proposed

findings and exceptions;

      (f) All authority

memoranda or data submitted to the authority in connection with the authority's

consideration of the case;

      (g) All stenographic

recordings taken and transcriptions made. Oral proceedings shall be reported

stenographically upon request of any party and shall be paid for by the parties

desiring copies; and

      (h) Final

adjudication including findings of fact, based exclusively on evidence

presented at the hearing and matters officially noticed, and any decision,

opinion, and ruling by the authority on the matter.

      (6) The authority

may take official notice of technical facts or customs or procedures common to

racing, but all parties to the hearing shall be duly notified. Each party shall

have an opportunity to contest facts so noticed, including authority memoranda

and authority data.

      (7) Members of the authority

participating in the adjudication of a matter before it shall not, directly or

indirectly:

      (a) In connection

with any issue of fact in the matter before the authority, consult with any

person or party who was engaged in the investigation or prosecution of the

matter before the authority, or conduct any personal investigation outside the

record, without giving an opportunity for all parties to participate.

      (b) In connection

with any issue at law, no party or representative shall be consulted without

giving all parties an opportunity to participate.

      (8) The authority

may make an informal disposition of the matter by stipulation, agreed

settlement, consent order, or by default.

      (9) Upon conclusion

of the hearing, the authority shall:

      (a) Take the matter

under advisement;

      (b) Render a

decision as promptly as possible; and

      (c) Issue a ruling

in final adjudication of the matter.

      (10) The final

ruling shall set forth the:

      (a) Full name of

every person charged with a violation;

      (b) Identification

of the person, if licensed, by license classification and address;

      (c) Statute or

administrative regulation number and pertinent parts of the statute or

administrative regulation alleged to have been violated;

      (d) A separate

statement of findings of fact;

      (e) A separate

statement of conclusions of law;

      (f) A separate

statement of reasons for the decisions; and

      (g) Penalties fixed

by the authority, if any.

      (11) Copies of the

ruling shall be delivered to each party in interest, posted in the racing secretary's

office of the association where the matter arose, and forwarded to the office

of the Association of Racing Commissioners International.

 

      Section 5. Appeal

from Authority Order. Any person or licensee aggrieved by any order or decision

of the authority may appeal to the Franklin Circuit Court. The appeal shall be

made within ten (10) days after the entry of the order or decision of the authority

by posting and filing in the office of the Franklin Circuit Court Clerk:

      (1) A bond to secure

the costs of the action in a sum approved by the circuit clerk. The bond shall

be secured by corporate surety approved by the Department of Insurance.

      (2) An attested copy

of the appealed order or decision.

      (3) An attested copy

of the transcript of evidence heard by the authority and the cost of the

transcript of evidence heard by the authority. The cost of the transcript shall

be borne by the appellant. Appeals from a authority order or decision shall be

taken as provided in KRS 243.560 to 243.590.

 

      Section 6.

Continuances. (1) All applications for continuance made prior to a hearing

shall be in writing, shall set forth the reasons for the continuance, and shall

be filed with the authority after giving notice of the application by mail or

otherwise to all parties or their representative. At the time of the hearing,

applications for continuance may be made orally. If requested, and in the

manner prescribed by the authority, the party applying for the continuance

shall substantiate the reasons contained in the application.

      (2) If an

application is made for continuance due to illness of an applicant, licensee,

witness, or counsel, the application shall be accompanied by a medical

certificate attesting to such illness and inability.

      (3) An application

for continuance of any authority hearing shall be received by the authority at

least ninety-six (96) hours prior to the time fixed for a hearing. An

application received by the authority within the ninety-six (96) hour period

shall not be granted unless a satisfactory arrangement in writing is made with

the authority for the payment of all expenses resulting from the continuance.

However, the commission may waive payment of the expenses for extenuating circumstances.

      (4) If the authority

approves the application for continuance, the authority shall set a date for

the continued hearing.

 

      Section 7.

Disqualification of Authority Members and Hearing Officer. A authority member

or hearing officer may at any time withdraw from the proceeding if he deems

himself disqualified, and upon the filing in good faith before the termination

of the hearing of an affidavit of personal bias or disqualification of any

member or hearing officer, the authority shall determine the matter as a part

of the record and decision in the case. If a authority member or hearing

officer withdraws or disqualifies himself, any other member of the authority

participating in the hearing shall have the authority to complete the hearing

and to participate in the decision. In cases where the hearing is conducted by

the authority, members participating in the decision shall hear all the

evidence, or shall read the evidence prior to making a decision on the

evidence. At least a majority of the members of the authority shall hear all

the evidence or read the record before making a final decision. (18 Ky.R. 3291;

Am. 19 Ky.R. 408; eff. 8-1-92; TAm eff. 8-9-2007.)
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