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
(b) The notice shall consist of:
1. The date, time, and place of the
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
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
(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
(a) Full name of the person charged with
(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
(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
(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
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
Section 7. Incorporation by Reference.
(1) "Notice of Appeal", Form 200-1, (8/06), is incorporated by
(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.)