Randy Funkhouser, prominent horse owner and president of the Charles Town Horsemen's Benevolent Association, was told Oct. 16 he would be able to run his horses in the Oct. 20 West Virginia Breeders' Cup Classic.
Funkhouser’s occupational permit was indefinitely suspended Oct. 2 by the stewards at Charles Town Races & Slots after they suspected Funkhouser had deceived the West Virginia Racing Commission and had personal interests in getting a rival horse scratched from a July 4 race.
Independent hearing examiner Oscar Bean, an attorney from Moorefield, was chosen to make a decision on the matter in accordance with an order issued last week by Kanawha County Circuit Judge Charles King.
Bean based his decision on more than 12 hours of testimony and arguments Oct. 15 from Funkhouser, representatives from the commission, local horsemen, and Dan Ryan, the owner of Forest Park, the rival horse that was removed from the July 4 Charles Town Dash Invitational. Funkhouser’s horse, Confucius Say, won the race.
In an 18-page document, Bean outlined how he believed the commission had failed to sustain its burden of proof for its accusations against Funkhouser.
"There's nothing that happened at that hearing that changed what we contended went on," said Ryan's lawyer, Gary Bushel of Baltimore, Md. "We are disappointed it turned out the way it did, to say the least. The hearing examiner is a fine individual, though, and we wish congratulations to the other side."
One of the points Bean refuted was the commission (and Bushel's) claim that Funkhouser had purposefully refrained from telling them he had a horse in the July 4 race when bringing the matter regarding Forest Park to their attention. Forest Park was on a list of sick and injured horses at Delaware Park three days before the race.
"The fact that (Randy) Funkhouser had a horse entered in the Charles Town Dash was known to Danny Wright, the chief steward overseeing the race and who participated in a July 3 teleconference (with the commission)," Bean wrote.
Bean also noted one of the commission rules, which provides: "Any horse, which has been removed from starting due to sickness or physical disability, is not eligible to start for a minimum of five calendar days, exclusive of the day of the horse's removal."
One of the commission and Bushel's other accusations against Funkhouser was that he asked a HPBA lawyer to write a letter on the organization's behalf stating his concern with Forest Park being entered in the race, but did not seek approval from the board of directors before submitting the complaint.
Bean noted, however, that the HBPA board of directors had publicly ratified Funkhouser's actions Sept. 6 in causing the letter to be sent to the commission on the organization's behalf.
"While hindsight may demonstrate (Funkhouser) should have polled the board of directors, the president of the HBPA has the inherent authority to act as the principal executive officer of the association," Bean wrote.
In conclusion, Bean contended that "the state failed to prove by clear and convincing evidence any intent to deceive the commission by Funkhouser during the July 3 commission hearing."
It is believed that Funkhouser has now entered four horses in this weekend's West Virginia Breeders' Classics, including Confucius Say, who is in the $500,000 feature race. The eight races in the Oct. 20 event at Charles Town have a total purse of $1.45 million.
"We are gratified that a neutral and fair hearing examiner conclusively found that Mr. Funkhouser did not violate any statute, rule, or regulation and vacated the stewards’ improper suspension of his occupational permit," said Funkhouser's Martinburg, W.Va.-based lawyer David Hammer. "Mr. Funkhouser, his family, and his employees are pleased to return to O’Sullivan Farm with their reputation cleared."
"It's a total victory for Mr. Funkhouser."