WV Rules Allow Ejected Licensees to Appeal

The West Virginia Racing Commission, in the wake of a state Supreme Court of Appeals decision, has amended some procedural rules to specifically allow occupational permit holders to appeal racetrack ejections.

The commission's Jan. 12 action triggered a public comment period that extends through Feb. 21, according to the office of the West Virginia Secretary of State. The WVRC will then hold a public meeting to discuss the comments and make changes if it warrants.

The state Supreme Court in a 3-2 vote Nov. 18, 2011 sided with the WVRC in its contention that such permit holders have the right to appeal ejections. The opinion stemmed from a legal case involving jockeys ejected from Hollywood Casino at Charles Town Races for allegedly misrepresenting their riding weights.

Two of the judges later issued a dissenting opinion.

The procedural rules fall under the “due process and hearings” section. The changes made by the WVRC concern the rights of permit holders, specifically that they may appeal ejections to the racing commission if they meet certain conditions such as filing an appeal within 20 days of a written ejection notice.

The WVRC would reserve the right to reject appeals. The language also states ejected individuals can apply for stays, but that the granting of a stay is an “extraordinary remedy” based on factors including the likelihood of “irreparable harm” to either the licensee or the racing association.

After the public hearing, the WVRC must file the rules with the Secretary of State’s office. They would take effect 30 days after that date.

Deputy attorney general Kelli Talbott, who represents the racing commission, said because the rules are “procedural” they don’t need legislative approval. In West Virginia, statutory changes such as medication rules must receive legislative approval.

“The commission welcomes comment on the rule, and we look forward to getting procedures in place to implement and administer the ejection appeal hearings that we anticipate having as a result of the Supreme Court’s decision,” Talbott said Jan. 20.

During an early January meeting on Thoroughbred rules of racing in the state, racetrack operators expressed their view that the procedural language shouldn’t be changed. In recent years high-profile ejections have come at Charles Town, which is operated by Penn National Gaming Inc.

“We’re planning to share with the commission directly our views on this matter, but suffice it to say we believe it’s critical that the track owner maintain the ability to eject those who undermine the integrity of the sport, as has always been the case in West Virginia and other racing jurisdictions around the country,” Erich Zimny, director of racing operations at Charles Town, said Jan. 20. “Beyond that, we’ll reserve further remarks for the public comment period.”

The National Horsemen’s Benevolent and Protective Association joined the WVRC in the Supreme Court appeal. The issue came up Jan. 16 during the National HBPA winter convention in Florida.

“It’s a significant decision, one with implications across the country,” said Lexington attorney Doug McSwain, chief counsel for the horsemen’s group. “We’ve been fighting this battle for three years. There is a lot of pushback from the racetracks, but in the long run it’s a good decision.”

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