PNGI Intends to Sue Over WV Procedural Rules

The back-and-forth over racetrack ejections continues in West Virginia.

The West Virginia Racing Commission’s new procedural rules governing due process and hearings—specifically in regard to ejected licensees at racetracks—could be challenged in court, according to a letter recently received by the regulatory agency.

Attorneys for Hollywood Casino at Charles Town Races, in a letter to WVRC chairman Joe Smith and Darrell McGraw Jr. of the West Virginia Attorney General’s Office, said it intends to file a complaint for declaratory judgment in Kanawha County Circuit Court. The racetrack casino owned by Penn National Gaming Inc. said it will challenge the WVRC for promulgating the rules without legislative approval.

The Feb. 29 letter said PNGI believes “some of the rules changes are substantive and not procedural, are inconsistent with current statutory, regulatory, and common law, and request approval by the legislature” to take effect. PNGI plans to ask for “injunctive relief” and an order declaring the rules “void and unenforceable.”

The WVRC Feb. 27 unanimously adopted new procedural rules that allow occupational license-holders the right to appeal racetrack ejections. The rules were amended in January, and a 30-day public comment period followed.

Commission attorneys submitted minor changes Feb. 27, but said none altered the intent of the rules. The commission is holding a meeting March 21 to further discuss some of the rules. The final rules must be filed with the West Virginia Secretary of State and will take effect 30 days from the filing.

The WVRC began the process after the state Supreme Court of Appeals in a 3-2 vote Nov. 18, 2011 sided with the commission in its contention that such permit holders have the right to appeal ejections. The opinion stemmed from a legal case involving jockeys ejected from Charles Town for allegedly misrepresenting their riding weights, but other permit-holders have fought ejections at Charles Town as well.

PNGI has continuously opposed regulations that would allow the WVRC to decide whether or not ejected license-holders can appeal.

Kelli Talbott, senior deputy attorney general for the WVRC, said March 19 PNGI had not yet filed the lawsuit. The letter of intent is required under West Virginia code, she said.

When contacted March 16, Erich Zimny, director of racing operations at Charles Town, said: “We’re evaluating all of our options and don’t have any further comment at this time.”