W. Va. Code R. § 178-6-4

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 178-6-4 - Proceedings by the Commission

4.1. Rights of Permit Holder, Licensee or Other Person.

4.1.a. A permit holder who is the subject of a disciplinary hearing who has filed an appeal to the Racing Commission from a stewards'/judges' ruling; a permit holder who has filed an appeal to the Racing Commission as a result of an ejection by an association and the association that is the respondent in the appeal; or a licensee who is the subject of a disciplinary hearing before the Racing Commission; or, any other person under the jurisdiction of the Racing Commission who seeks relief from the Racing Commission, is entitled to:

4.1.a.1. Proper notice of all charges alleged by the stewards/judges and/or Racing Commission or, in the case of an ejection by an association, notice of the reason for the ejection, as stated by the association;

4.1.a.2. Confront the evidence presented;

4.1.a.3. The right to counsel at the permit holder's, licensee's or person's expense;

4.1.a.4. The right to examine all evidence presented against him/her/it;

4.1.a.5. The right to present a defense;

4.1.a.6. The right to call witnesses;

4.1.a.7. The right to cross-examine witnesses;

4.1.a.8. The right to request subpoenas and subpoenas ducestecum; and,

4.1.a.9. The right to waive any of the above rights.

4.2. Permit Holder Appeal of Ejection by Association.

4.2.a. A permit holder aggrieved by an ejection of an association may appeal to the Commission pursuant to 178CSR1, §6.1. and 178CSR2, §6.1. The Racing Commission may refuse to hear an appeal from an ejected permit holder who has been ejected in connection with his or her suspension or termination from employment with the association.

4.2.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 written ejection notice is received by the permit holder, or no later than thirty (30) days after the association receives the permit holder's written request to reenter.

4.2.c. The association must provide an ejected permit holder a written statement of all of the reasons for the ejection no later than twenty-four (24) hours after the permit holder is ejected.

4.2.d. An appeal shall be in writing on a form prescribed by the Racing Commission. The appeal shall include:

4.2.d.1. The name, address, telephone number and signature of the permit holder making the appeal;

4.2.d.2. A statement of the basis of the appeal;

4.2.d.3. A sworn, notarized statement that the appealing permit holder has a good faith belief that the appeal is meritorious; and,

4.2.d.4. A copy of the ejection notice received by the permit holder.

4.2.e. A copy of an appeal of an ejection filed by a permit holder shall be provided by the Racing Commission to a person designated by the association to receive the appeal on its behalf.

4.2.f. A permit holder who appeals an ejection shall pay security for the Commission's hearing costs in the amount of one-hundred dollars ($100.00). 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 ejection 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.

4.3. Stays of Ejection of Permit Holder by Association.

4.3.a. A permit holder who has been ejected by an association may apply for a stay to the Racing Commission or to the member of the Racing Commission designated to rule upon stay requests.

4.3.b. An application for a stay must be filed with the Commission's executive director at the Racing Commission's principal office. An application for stay will not be considered or ruled upon unless and until the permit holder has filed an appeal of the ejection in accordance with subsection 4.2 of this rule.

4.3.c. An application for a stay must be in writing on a form prescribed by the Racing Commission and shall include:

4.3.c.1. The name, address, telephone number and signature of the person requesting the stay;

4.3.c.2. A statement of the justification for the stay; and,

4.3.c.3. A sworn, notarized statement that the permit holder requesting the stay has a good faith belief that the stay request is meritorious and is not taken merely to delay the effect of the ejection imposed by the association.

4.3.d. A copy of a stay request filed by an ejected permit holder shall be provided by the Racing Commission to a person designated by the association to receive the stay request on its behalf.

4.3.e. The association may respond in writing to a stay request filed by an ejected permit holder. Such response shall be filed with the Commission's executive director by a deadline established by the Commission or the member of the Racing Commission designated to rule upon stay requests. A copy of such response shall be served upon the permit holder by the association.

4.3.f. 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:

4.3.f.1. The likelihood that the permit holder requesting the stay will prevail upon the merits of his or her ejection appeal.

4.3.f.2. The likelihood of irreparable harm to the permit holder if a stay is denied pending disposition of his or her ejection appeal.

4.3.f.3. The likelihood of irreparable harm to the association if a stay is granted pending disposition of the permit holder's ejection appeal.

4.3.f.4. The public interest.

4.3.f.5. Any other information deemed relevant by the Commission or the member designated to rule upon stay requests.

4.3.g. Rulings on stay requests shall be issued in writing to the parties. 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 4.3.f. in light of such change or new information.

4.3.h. The fact that a stay is granted is not a presumption that the ejection imposed by the association is invalid.

4.4. Notice.

4.4.a. Upon receipt of a written appeal by a permit holder from a stewards'/judges' ruling or an ejection by an association, the Racing Commission shall set a time and place for the appeal hearing not less than ten (10) nor more than thirty (30) days after receipt of the appeal. The permit holder may waive his/her right to a hearing within the above-referenced time frame by executing a written waiver. The Commission or a hearing examiner appointed by the Racing Commission may grant an extension of the above-referenced time frame for hearing for good cause shown.

4.4.b. In any matter instituted by the Racing Commission against a licensee or upon a permit holder's appeal from an ejection by an association, the Racing Commission shall provide no less than (10) days notice of the hearing.

4.4.c. The Racing Commission shall serve a notice of hearing by certified mail, return receipt requested, to the parties' last known address, as found in the Commission's permit or licensing files, or by personal service.

4.4.d. A notice of hearing shall include:

4.4.d.1. Statement of time, place and nature of the hearing;

4.4.d.2. Statement of the legal authority and jurisdiction under which the hearing is to be held;

4.4.d.3. Reference to the particular sections of the statutes and rules involved;

4.4.d.4. Short, plain statement of the matters asserted; and,

4.4.d.5. Any other statement required by law.

4.4.e. A party to the proceeding may move to postpone the hearing. The motion must be in writing; must set forth the specific grounds on which it is sought; and, must be filed with the Racing Commission before the date set for the hearing. If the Racing Commission, or a hearing examiner appointed by the Racing Commission, grants the motion for postponement, the Racing Commission shall cause new notice to be issued.

4.4.f. After a hearing has begun, the Racing Commission, or a hearing examiner appointed by the Racing Commission, may grant a continuance on oral or written motion, without issuing new notice, by announcing the date, time and place for reconvening the hearing before recessing the hearing.

4.4.g. If a party to a proceeding before the Racing Commission fails to appear after adequate notice, the Racing Commission may deem the charges alleged by the stewards/judges and/or Racing Commission set forth in the notice of hearing as admitted by the non-appearing party and may dismiss the proceedings before the Racing Commission. If a party to a proceeding before the Racing Commission pertaining to an association ejection fails to appear after adequate notice, the Racing Commission may grant a default ruling against the non-appearing party and may dismiss the proceedings before the Racing Commission.

4.5. Subpoenas, Subpoenas DucesTecum and Oaths or Affirmations.

4.5.a. Any member of the Racing Commission, or a hearing examiner appointed by the Racing Commission, may issue subpoenas to compel the testimony of witnesses and subpoenas ducestecum to compel the production of documents, books, records, papers and other items.

4.5.b. Any party requesting the issuance of subpoenas or subpoenas ducestecum shall be responsible for proper service and payment of fees for the attendance and travel of witnesses in accordance with the requirements of W. Va. Code § 29A-5-1(b).

4.5.c. Any member of the Racing Commission, or a hearing examiner appointed by the Racing Commission, may administer oaths or affirmations to witnesses appearing before the Racing Commission.

4.6. Reporters and Transcripts.

4.6.a. The Racing Commission shall engage a court reporter to make a record of the hearing. The Racing Commission may allocate the costs of the reporter and any transcript produced among the parties.

4.6.b. If a person requests a transcript of the record, the Racing Commission may assess the costs of preparing the transcript to the person.

4.7. Nature of Hearings.

4.7.a. A hearing on an appeal by a permit holder from a decision of the stewards/judges shall be de novo. The Racing Commission shall have the burden of proving 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, upon appeal by a permit holder of a decision of the stewards regarding a disqualification of a thoroughbred during the running of the race, the appeal hearing before the Racing Commission shall not be de novo and the burden shall be on the permit holder to prove by clear and convincing evidence that the stewards committed plain error in their decision. In the event that a permit holder appeals a stewards' decision regarding a disqualification during the running of the race and does not prevail, he or she shall be assessed interest on any purse which may be held during the pendency of the appeal. Such assessment shall be collected by the Racing Commission and paid to the owner of the horse who moves up in the finish of the race as a result of the stewards' disqualification decision. The rate of interest shall be three (3) percentage points above the Fifth Federal Reserve District secondary discount rate in effect on the second day of January of the year in which the assessment is entered. Provided, that the rate of interest shall not exceed eleven (11) percent per annum or be less than seven (7) percent per annum. In addition, pursuant to the provisions of subdivision 3.10.d of this rule, the Commission may assess the costs of the hearing incurred in excess of the one hundred dollar ($100.00) security fee against the appealing permit holder.

4.7.b. The Racing Commission may reject, affirm, or modify any penalty or disciplinary action imposed by the stewards/judges.

4.7.c. In any hearing on a matter instituted by the Racing Commission against a licensee, the Commission shall have the burden of proving by a preponderance of the evidence that the licensee has violated or is responsible for a violation of a statute or a Commission rule.

4.7.d. In any hearing on an appeal by a permit holder of an ejection by an association, the association shall have the burden of proving by a preponderance of the evidence that the permit holder acted improperly or engaged in behavior that is otherwise objectionable pursuant to 178CSR1, §6.2. or 178CSR2, §6.2.

4.7.e. The Racing Commission may reject, affirm, or modify any ejection imposed by the association on a permit holder, and the association and the permit holder shall abide by any orders, restrictions or conditions issued by the Commission in connection with its decision on the ejection appeal.

4.7.f. All hearings before the Racing Commission are open to the public. However, witnesses may be excluded or sequestered.

4.8. Conducting of Hearings.

4.8.a. A quorum of the Racing Commission and/or a hearing examiner appointed by the Racing Commission who is licensed to practice law in the State of West Virginia shall conduct and preside over Commission hearings.

4.8.b. The Racing Commission or its appointed hearing examiner may:

4.8.b.1. Issue subpoenas and subpoenas ducestecum;

4.8.b.2. Administer oaths or affirmations;

4.8.b.3. Receive evidence;

4.8.b.4. Rule on the admissibility of evidence;

4.8.b.5. Examine witnesses;

4.8.b.6. Set reasonable times within which a party may present evidence and within which a witness may testify;

4.8.b.7. Permit and limit oral argument;

4.8.b.8. Issue orders and findings of fact and conclusions of law;

4.8.b.9. Require written arguments to be filed by the parties;

4.8.b.10. Take notice of any and all judicially cognizable facts;

4.8.b.11. Regulate the course of the hearing; and,

4.8.b.12. Perform other duties necessary to a fair and proper hearing.

4.9. Evidence.

4.9.a. All testimony of witnesses before the Racing Commission must be given under oath or affirmation. The Racing Commission or its appointed hearing examiner may limit the number of witnesses and may exclude all irrelevant, immaterial or unduly repetitious evidence.

4.9.b. The Racing Commission and/or its appointed hearing examiner shall allow a full presentation of evidence and are not bound by the technical rules of evidence. The Racing Commission and/or its appointed hearing examiner shall have the authority to determine, in their sole discretion, the weight and credibility of any evidence and/or testimony. The Racing Commission and/or its appointed hearing examiner may admit hearsay evidence if it is determined that 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 Racing Commission.

4.10. Representation.

4.10.a. A person who is the subject of a hearing before the Racing Commission may represent himself or herself 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 party involved in a matter before the Racing Commission. Representation of a party includes any communication with the Racing Commission or its agents on behalf of the party, the filing or making of motions or any other written or oral requests on behalf of a party, and, appearing before the Racing Commission or its appointed hearing examiner on behalf of a party.

4.11. Decisions.

4.11.a. If a hearing is conducted by a hearing examiner appointed by the Racing Commission, he/she shall issue a written recommended decision containing proposed findings of fact and conclusions of law to the Racing Commission. The hearing examiner shall mail a copy of his recommended decision to all parties to the proceeding.

4.11.b. Upon receipt of a recommended decision from an appointed hearing examiner, the Racing Commission shall consider the recommendation in a meeting noticed in accordance with the West Virginia Open Governmental Proceedings Act, W. Va. Code § 6-9A-1et seq. The Racing Commission may:

4.11.b.1. Adopt or modify the recommended decision, in whole or in part;

4.11.b.2. Decline to adopt the recommended decision, in whole or in part;

4.11.b.3. Remand the proceeding for further examination by the hearing examiner; or,

4.11.b.4. Direct the hearing examiner to give further consideration to the proceeding with or without reopening the hearing.

4.11.c. If the Racing Commission modifies or declines to adopt a recommended decision of an appointed hearing examiner, either in whole or in part, it shall issue a reasoned, articulate explanation and a recitation of the underlying evidence or other matters upon which it bases its decision and particularized findings of fact and conclusions of law that support its decision.

4.11.d. If a hearing is conducted by a quorum of the Racing Commission it shall issue a written decision containing findings of fact and conclusions of law.

4.12. Orders.

4.12.a. The Racing Commission shall issue a final order in all matters heard before it. The Racing Commission's order shall be in writing and shall be signed by the Chairman.

4.12.b. The Racing Commission shall serve a copy of a final order upon all parties to the proceeding by certified mail, return receipt requested, or by personal service.

4.12.c. A final order of the Racing Commission takes effect on the date the order is entered, unless otherwise stated in the order.

4.12.d. The Racing Commission shall submit copies of all final orders to the NAPRA or RCI Ruling Database.

W. Va. Code R. § 178-6-4