Current through Register Vol. XLI, No. 50, December 13, 2024
Section 178-6-3 - Proceedings by the Stewards/Judges3.1. Rights of Permit Holder. A permit holder who is the subject of a disciplinary hearing conducted by the stewards/judges is entitled to: 3.1.a. Proper notice of all charges;3.1.b. Confront the evidence presented;3.1.c. The right to counsel at the permit holder's expense;3.1.d. The right to examine all evidence presented against him/her;3.1.e. The right to present a defense;3.1.f. The right to call witnesses;3.1.g. The right to cross-examine witnesses; and,3.1.h. The right to waive any of the above rights.3.2. Complaints. 3.2.a. On their own motion or on receipt of a written complaint regarding the actions of a permit holder, the stewards/judges may conduct an investigation and, if warranted, a disciplinary hearing regarding the permit holder's actions.3.3. Summary Suspension. 3.3.a. If the stewards/judges determine that a permit holder's actions constitute an immediate danger to the public health, safety or welfare, they may summarily suspend a permit pending a hearing.3.3.b. A permit holder whose permit has been summarily suspended is entitled to a hearing not later than ten (10) days after the permit was summarily suspended. The permit holder may waive his/her right to a hearing on the summary suspension within the ten (10) day limit.3.3.c. The stewards/judges shall conduct a hearing after imposing a summary suspension in the same manner as other disciplinary hearings.3.4. Notice. 3.4.a. Except as provided by this rule regarding summary suspensions, the stewards/judges shall provide written notice at least twenty-four (24) hours before the hearing to the permit holder who is the subject of the disciplinary hearing. A permit holder may waive his/her right to such notice by executing a written waiver. In cases involving a disqualification during the running of a greyhound race or a thoroughbred race, or in cases involving a riding infraction during the running of a thoroughbred race, neither notice nor a hearing is required under this rule.3.4.b. Notice given under this subsection shall include:3.4.b.1. A statement of the time, place and nature of the hearing;3.4.b.2. A statement of the legal authority and jurisdiction under which the hearing is to be held;3.4.b.3. A reference to the particular sections of the statutes or rules involved;3.4.b.4. A short, plain description of the alleged conduct that has given rise to the disciplinary hearing; and3.4.b.5. A statement summarizing the rights of the permit holder as outlined in this rule.3.4.c. If possible, the stewards/judges or their designee shall hand deliver the written notice of disciplinary hearing to the permit holder who is the subject of the hearing. If hand delivery is not possible, the stewards/judges shall mail the notice to the permit holder's last known address, as found in the Racing Commission's permit files, by certified mail, return receipt requested. If the disciplinary hearing involves an alleged medication violation that could result in the disqualification of a thoroughbred, the stewards shall provide notice of the hearing to the thoroughbred owner, managing owner, or lessee of the thoroughbred in the manner provided in this subsection. If the disciplinary hearing involves an alleged medication violation that could result in the disqualification of a greyhound, the judges shall provide notice of the hearing to the greyhound owner, greyhound kennel owner, or the trainer of the greyhound in the manner provided in this subsection.3.4.d. Nonappearance of a summoned permit holder after adequate notice shall be deemed as an admission of the charges set forth in the notice of hearing and a waiver of the right to a hearing before the stewards/judges.3.5. Continuances. 3.5.a. Upon receipt of a notice, a permit holder may request a continuance of the hearing.3.5.b. The stewards/judges may grant a continuance of any hearing for good cause shown.3.5.c. The stewards/judges may at any time order a continuance on their own motion.3.6. Evidence. 3.6.a. All hearings shall be conducted by no less than a majority of the stewards/judges.3.6.b. Each witness at a hearing conducted by the stewards/judges shall be sworn by the stewards/judges.3.6.c. The stewards/judges shall allow a full presentation of evidence and are not bound by the technical rules of evidence. However, they may disallow evidence that is irrelevant or unduly repetitive of other evidence. The stewards/judges shall have the authority to determine, in their sole discretion, the weight and credibility of any evidence and/or testimony. The stewards/judges may admit hearsay evidence if the stewards/judges determine the evidence is of a type that is commonly relied on by reasonably prudent people. The rules of privilege recognized by West Virginia law apply in hearings before the stewards/judges.3.6.d. The burden of proof is on the stewards/judges to show, by a preponderance of the evidence, that the permit holder has violated or is responsible for a violation of a statute or a Racing Commission rule. However, the burden is on the permit holder to prove by a preponderance of the evidence any defense that he or she may present.3.6.e. All hearings shall be recorded. A copy of the recording or a transcript of the recording shall be provided to the permit holder or any interested person upon request. The cost of providing a copy of the recording or a transcript of the recording may be assessed against the requesting party in the discretion of the stewards/judges.3.7. Representation. 3.7.a. A permit holder who is the subject of a disciplinary hearing before the stewards/judges may represent himself or herself; may be represented by a lay representative of any racing trade organization to which he or she is a member; or, may be represented by legal counsel licensed to practice law in the State of West Virginia. Attorneys who are not licensed to practice law in the State of West Virginia must comply with Rule 8.0, Admission Pro Hac Vice, of the West Virginia Rules for Admission to the Practice of Law, before representing any permit holder in disciplinary matters pending before the stewards/judges. Representation of a permit holder includes any communication with the stewards/judges on behalf of the permit holder; the filing or making of motions or any other written or oral requests on behalf of a permit holder; and, appearing before the stewards/judges on behalf of a permit holder.3.8. Rulings. 3.8.a. The issues at a disciplinary hearing shall be decided by a majority vote of the stewards/judges. If the vote is not unanimous, the dissenting steward/judge shall include with the record of the hearing a written statement of the reason(s) for the dissent.3.8.b. A ruling by the stewards/judges shall, at a minimum, include:3.8.b.1. The full name, date of birth, last record address, permit type and permit number of the person who is the subject of the hearing;3.8.b.2. A statement of the substantiated charges against the permit holder, including a reference to the specific section of the statutes or rules that the permit holder is found to have violated;3.8.b.3. The date of the hearing and the date the ruling was issued;3.8.b.4. The penalty imposed;3.8.b.5. Any changes in the order of finish or purse distribution;3.8.b.6. Information on the permit holder's right to appeal the ruling to the Racing Commission; and,3.8.b.7. Other information required by the Racing Commission.3.8.c. A ruling shall be signed by all three stewards/judges. However, in the event that the ruling is not unanimous, the ruling shall be signed by a majority of the stewards/judges with the dissenting steward/judge noting the reasons for his or her dissent.3.8.d. If possible, the stewards/judges or their designee shall hand deliver a copy of the ruling to the permit holder who is the subject of the ruling. If hand delivery is not possible, the stewards/judges shall mail the ruling to the permit holder's last known address, as found in the Racing Commission's permit files, by certified mail, return receipt requested. A copy of the ruling shall be submitted to the NAPRA or RCI Ruling Database. If the ruling includes the disqualification of a greyhound, the judges shall provide a copy of the ruling to the owner of the greyhound. If the ruling includes a disqualification of a thoroughbred, the stewards shall provide a copy of the ruling to the owner of the horse, the horsemen's bookkeeper and the appropriate past performance service(s).3.8.e. All fines imposed by the stewards/judges shall be paid to the Racing Commission within seven (7) calendar days after the ruling is issued, unless otherwise ordered by the stewards/judges.3.9. Effect of Rulings. 3.9.a. Rulings against a permit holder apply to another person if continued participation in an activity by the other person would circumvent the intent of the ruling by permitting the person to serve, in essence, as a substitute for the ineligible permit holder.3.9.b. The transfer of a thoroughbred or greyhound to avoid application of a Racing Commission rule or ruling by the stewards/judges is prohibited.3.10. Appeals. 3.10.a. A permit holder aggrieved by a ruling of the stewards/judges may appeal to the Commission, except as provided in subdivision 3.10.g. of this subsection. A person who fails to file an appeal by the deadline set forth in this rule waives the right to appeal.3.10.b. An appeal under this subsection must be filed with the Commission's executive director at the Racing Commission's principal office no later than twenty (20) days after the stewards'/judges' ruling is received by the permit holder.3.10.c. An appeal shall be in writing on a form prescribed by the Racing Commission. The appeal shall include: 3.10.c.1. The name, address, telephone number and signature of the person making the appeal;3.10.c.2. A statement of the basis of the appeal; and,3.10.c.3. A sworn, notarized statement that the appealing party has a good faith belief that the appeal is meritorious and is not taken merely to delay the penalty imposed by the stewards/judges.3.10.d. A permit holder who appeals shall pay security for hearing costs in the amount of five-hundred dollars ($500.00). This security fee shall be paid to the Racing Commission at the same time the appeal is filed. In the event that the Racing Commission determines that the fee is insufficient to cover the anticipated costs of holding the appeal hearing, the appealing permit holder may be required to pay an additional security for costs as specified by the Racing Commission. Such additional security fees shall be deposited with the Racing Commission within ten (10) days after notification. If the permit holder substantially prevails in an appeal hearing before the Racing Commission, the Commission may order a refund of all or part of any security fee paid by the permit holder. If a permit holder does not substantially prevail in an appeal hearing before the Racing Commission, the Commission may assess the costs of the appeal hearing incurred in excess of the security fee.3.10.e. On notification by the Racing Commission that an appeal has been filed, the stewards/judges shall forward to the Racing Commission the record of the stewards'/judges' proceeding on which the appeal is based.3.10.f. If a person against whom a fine has been assessed files an appeal of the ruling that assesses the fine, the person shall pay the fine in accordance with this rule, unless the ruling is stayed in accordance with this rule. If the fine is paid before disposition of the appeal and the appeal is resolved in favor of the permit holder, the Racing Commission shall refund the amount of the fine.3.10.g. A decision by the judges regarding a disqualification of a greyhound during the running of the race is final and may not be appealed to the Racing Commission. However, any permit holder fined or suspended as a result of circumstances giving rise to a disqualification of a greyhound is entitled to appeal a ruling on the suspension or fine only. The Racing Commission's decision on such an appeal shall not affect the disqualification.3.11. Stays. 3.11.a. A person who has been disciplined by a ruling of the stewards/judges may apply for a stay to the Racing Commission or to the member of the Racing Commission designated to rule upon stay requests.3.11.b. An application for a stay must be filed with the Commission's executive director at the Racing Commission's principal office no later than the deadline for filing an appeal.3.11.c. An application for a stay must be in writing on a form prescribed by the Racing Commission and shall include:3.11.c.1. The name, address, telephone number and signature of the person requesting the stay;3.11.c.2. A statement of the justification for the stay; and,3.11.c.3. A sworn, notarized statement that the party requesting the stay has a good faith belief that the stay request is meritorious and is not taken merely to delay the penalty imposed by the stewards/judges.3.11.d. The granting of a stay is an extraordinary remedy. The Racing Commission or the member of the Racing Commission designated to rule upon stay requests may grant or deny a stay request after considering and balancing the following factors: 3.11.d.1. The likelihood that the permit holder requesting the stay will prevail upon the merits of his or her appeal.3.11.d.2. The likelihood of irreparable harm to the permit holder if a stay is denied pending disposition of his or her appeal.3.11.d.3. The likelihood of irreparable harm to the association if a stay is granted pending disposition of the permit holder's appeal.3.11.d.4. The public interest.3.11.d.5. Any other information deemed relevant by the Commission or the member designated to rule upon stay requests.3.11.e. Rulings on stay requests shall be issued in writing to the person requesting the stay. The Racing Commission or the member of the Racing Commission designated to rule upon stay requests may rescind a stay granted under this subsection taking into account only a change in circumstances or new information not available at the time of the original grant of stay, and reconsideration and rebalancing the factors set forth in subdivision 3.11.d in light of such change or new information.3.11.f. The fact that a stay is granted is not a presumption that the ruling issued by the stewards/judges is invalid.