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.)
