WV Court: Panel Can't Hear Exclusion Cases
by Tom LaMarra
Date Posted: 10/9/2009 11:53:21 AM
Last Updated: 10/11/2009 3:59:48 PM

A West Virginia court has ruled the state racing commission is prohibited from conducting hearings on racetrack exclusions because it “lacks the authority to unilaterally reinstate an ejected permit-holder over the objection of a racing association.”

The Sept. 24 ruling by the Kanawha County Circuit Court stemmed from cases involving horsemen at Charles Town Races & Slots, which is owned by Penn National Gaming Inc. The West Virginia Racing Commission earlier this year voted to hear the cases, but PNGI filed a lawsuit and requested a court ruling.

Excluded by PNGI are Dick and Janene Watson, the former president and executive director, respectively, of the Charles Town Horsemen’s Benevolent and Protective Association; and Patty Burns, a trainer at Charles Town. All three are West Virginia Racing Commission licensees.

The Watsons have been barred from Charles Town property for about four years, and Burns for more than a year.

Dick Watson, then president of the Charles Town HBPA, was sued by the organization for allegedly misappropriating funds. The suit alleged Janene Watson, then executive director of the local HBPA, was a co-conspirator.

The suit was settled after Dick Watson apologized and admitted loaning himself HBPA money without approval of the board of directors. In August 2005, Dick Watson’s membership in the Charles Town HBPA was suspended, and three weeks later, Charles Town barred the Watsons from track property.

The couple have bred, owned, and trained horses at Charles Town for more than 25 years. They lost their stalls when the ejection order was issued.

Burns, according to court documents, was arrested in February 2007 for being a party in an altercation in the Charles Town barn area, and in July of that year, track officials found syringes in Burns’ barn after an inspection. The board of stewards suspended Burns, a trainer, for 30 days, but in February 2008, Charles Town management ejected her.

Attorneys for PNGI, during a WVRC meeting in January 2008, argued the Watsons were banned because of integrity issues. Horsemen have argued the issues had nothing to do with the racetrack and ultimately were resolved by the local HBPA.

The National HBPA during its summer convention this year expressed concerns over what it called “arbitrary” exclusions.

National HBPA general counsel Doug McSwain, who handled the case on behalf of the Watsons and Burns, and PNGI vice president of racing Chris McErlean were contacted for comment on the case but have not yet responded. The possibility of an appeal isn’t known.

In its conclusions of law, the circuit court cited previous rulings that racetracks “possess a common law right to exclude unwanted persons,” and the right to exclude “applies equally to the exclusion of patrons and to the exclusion of licensees or permit-holders.” The court cited a 1969 case involving Waterford Park, now Mountaineer Casino Racetrack & Resort.

The court acknowledged the WVRC “has full jurisdiction over and shall supervise all horse racing meetings, all dog race meetings, and all persons involved in the holding or conducting of horse and dog race meetings,” but the language “is not explicit enough to clearly and without equivocation evidence a legislative intent to alter or change the common law right of ejectment held by private racing associations.”

The court also said state law is “silent” on case reviews when a private racing association ejects a permit-holder, and there is violation of due process.



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