811 KAR 1:105. Review and appeal.

 

      RELATES TO: KRS 230.215, 230.260(1), (3),

(7), 230.320, 230.330

      STATUTORY AUTHORITY: KRS 230.215(2),

230.260(3), 230.320(1), (2), (3)

      NECESSITY, FUNCTION, AND CONFORMITY: KRS

230.215(2) and 230.260(3) authorize the Authority to promulgate administrative

regulations prescribing the conditions under which horse racing shall be

conducted in Kentucky. KRS 230.320(1) authorizes the Authority to promulgate

administrative regulations under which any license may be denied, suspended, or

revoked. This administrative regulation establishes the requirements for hearings

conducted by the racing judges and the Authority.

 

      Section 1. Definition. "Judge"

means a racing judge.

 

      Section 2. Judges' Hearing. (1) In

accordance with KRS 230.320(2) and (3), the judges shall have the authority to

conduct an informal hearing to review any alleged violation of the provisions

of KRS Chapter 230 relating to harness racing or 811 KAR Chapter 1.

      (2)(a) A person charged with a violation

of the provisions of KRS Chapter 230 relating to harness racing or 811 KAR

Chapter 1 shall be provided with prior notice, either personally or by mail,

before a judges' hearing is held concerning the violation, unless the person

charged waives the notice requirement in writing. Prior notice shall not, however,

be required for any routine driving or racing offense as set forth in 811 KAR

1:075.

      (b) The notice shall consist of:

      1. The date, time, and place of the

hearing;

      2. A specific designation of the

particular statute or administrative regulation alleged to have been violated;

      3. 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

regulation;

      4. A statement advising the party of the

right to be represented at the hearing by counsel or by a member of any racing

trade association; and

      5. A statement advising the party of his

or her right to subpoena witnesses and documentary evidence through the Authority.

      (3) A judges’ hearing shall be conducted no

more than thirty (30) days after service of the notice. The judges may grant a

continuance of the hearing if all parties agree. The executive director and the

chairman of the Authority shall be promptly notified of any continuance of a

judges hearing.

      (4) A judges' hearing shall be closed to

the public, and the judges shall cause no public announcement to be made concerning

a matter under investigation until the hearing has concluded and the party

charged has been notified of the decision.

      (5) The presiding judge shall conduct the

hearing to ascertain and determine the substantial rights of the parties

involved, and shall not be bound by technical rules of procedure and evidence.

      (6) The presiding judge and at least one

(1) associate judge who was serving as judge at the time of the incident in

question shall be present at all times at a judges' hearing.

      (7) 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 judges

shall not be required to receive testimony under oath in cases in which their

ruling is based solely upon a review of a video tape of a race.

      (8) If, at the conclusion of the hearing,

the judges find that a statute or an administrative regulation has been

violated, they shall within five (5) days issue a written ruling which sets

forth the:

      (a) Full name of the person charged with

the 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

violated;

      (d) Finding by the judges as to the

violation of the statute or administrative regulation; and

      (e) Penalty affixed by the judges.

      (9) A copy of the ruling shall be

delivered to the party charged and to the Authority. A copy of the ruling shall

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

the Association of Racing Commissioners International and the United States

Trotting Association.

      (10) Appeal and review. A party who is

the subject of any order or ruling of the judges may appeal to the Authority

for a review of the judges' order or ruling.

      (11) Application for review. An

application to the Authority for review of the judges' order or ruling shall be

made within five (5) days after a party has received notice of the order orally

or 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 the applicant;

      (c) Set forth the ruling requested to be

reviewed and the date of the ruling;

      (d) Set forth with particularity, all

factual and legal issues which the applicant believes justify review by the

Authority of the judges’ ruling, with specific cites to all relevant statutory

provisions and administrative regulations; and

      (e) Request a hearing.

      (f) The applicant for appeal may request

from the Authority the Form, "Notice of Appeal," KHRA Form 200-1

(8/06). Completion and filing of this form by the applicant shall satisfy the

filing requirements of this section.

      (12) A person charged with a violation of

the provisions of KRS Chapter 230 or 811 KAR Chapter 1 may request a waiver of

a judges’ hearing and appeal directly to the Authority by making written

request to the presiding judge within five (5) days of receipt of a notice of

violation. The judges may consent to the waiver if the judges determine that

waiver is in the best interest of racing. If the judges consent to the waiver,

the judges shall issue a ruling and recommended penalty in accordance with the

evidence available to them, and deliver it to the Authority and the person

charged. If the judges refuse to grant a waiver, the judges’ hearing shall be

scheduled and shall proceed pursuant to subsection (3) of this section.

 

      Section 3. Authority Hearing on Appeal

from Judges’ Hearing. (1) A hearing by the Authority of an appeal from a

judges’ ruling pursuant to Section 2(10) of this administrative regulation

shall be conducted in accordance with KRS Chapter 13B.

      (2) A hearing by the Authority on appeal

from a judges’ ruling shall be held within sixty (60) days of the filing of the

appeal. A continuance of thirty (30) additional days may be granted for good

cause shown.

 

      Section 4. Frivolous Appeal. (1) The

Authority may determine that an appeal to the Authority from a judges’ ruling

or an appeal to the Authority by means of waiver of the judges’ hearing

pursuant to Section 2(12) of this administrative regulation, is a frivolous

appeal. An appeal shall be presumed to be frivolous if:

      (a) The applicant applies for an appeal

to the Authority but fails without good cause to appear at the KRS Chapter 13B

hearing before the Authority’s hearing officer; or

      (b) The applicant appears at the KRS

Chapter 13B hearing but fails without good cause to offer evidence at the

hearing to support his application for review.

      (2) If the Authority finds that an appeal

is frivolous, this fact shall be considered an aggravating circumstance and may

be considered in assessing any penalty pursuant to 811 KAR 1:095.

 

      Section 5. Authority Hearing Initiated by

the Authority (1) If the Authority is of the opinion that a association, licensee

or other person has violated a provision of 811 KAR Chapter 1 or a provision of

KRS Chapter 230 relating to harness racing, it shall have the authority to

issue a citation against that association, licensee or other person directing

him to appear and show cause why his license should not be immediately

suspended or revoked or why he should not be expelled from licensed facilities

or otherwise penalized in accordance with 811 KAR Chapter 1.

      (2) The citation shall contain the notice

prescribed in KRS Chapter 13B.050, and the show cause hearing shall be

conducted in accordance with KRS Chapter 13B.

 

      Section 6. Stay of Enforcement. A stay of

enforcement of the imposition of a judges' decision shall be governed by KRS

230.320(2).

 

      Section 7. Incorporation by Reference.

(1) "Notice of Appeal", Form 200-1, (8/06), is incorporated by

reference.

      (2) This material may be inspected,

copied, or obtained, subject to applicable copyright law at the Kentucky Horse

Racing Authority, 4063 Iron Works Parkway, Building B, Lexington, Kentucky

40511, Monday through Friday, 8 a.m. to 4:30 p.m. This material is also

available on the Kentucky Horse Racing Authority Web site www.khra.ky.gov. (KTC 1-8

(Rule 24); 1 Ky.R. 1115; eff. 6-11-75; Am. 7 Ky.R. 927; eff. 7-1-81; 10 Ky.R.

1009; eff. 3-31-84; 11 Ky.R. 457; eff. 10-9-84; 14 Ky.R. 628; eff. 11-6-87; 16

Ky.R. 1701; 2138; eff. 4-12-90; 28 Ky.R. 2256; 29 Ky.R. 440; eff. 8-12-2002; 33

Ky.R. 969; 2964; eff. 4-6-07.)