Charles Town Racing

Charles Town Racing

Mike Montgomery

WV Panel OKs Rules Allowing Exclusion Appeals

The state racing commission moved the new rules forward during a meeting Feb. 27.

The West Virginia Racing Commission Feb. 27 unanimously adopted new procedural rules that allow occupational permit-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 will alter the intent of the rules.

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 Hollywood Casino at Charles Town Races for allegedly misrepresenting their riding weights, but other permit-holders have fought ejections at Charles Town as well.

Despite the controversial nature of the procedural rules, no objections were raised at the commission meeting in Charleston. Several parties did submit comments during the public comment period, including Charles Town, which is owned by Penn National Gaming Inc.; attorney Doug McSwain, representing the Charles Town Horsemen’s Benevolent and Protective Association and the Mountaineer HBPA; and the Thoroughbred Racing Associations.

“Each party had multiple items they commented on,” said Kelli Talbott, senior deputy attorney general for the WVRC. “We considered each one and drafted a few proposed changes.”

WVRC chairman Joe Smith said he believes the “compromises made on the rule changes are more than adequate.”

The final rules must be filed with the West Virginia Secretary of State and will take effect 30 days from the filing date, Talbott said.

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.

Charles Town, through the high-profile West Virginia law firm Bowles Rice, submitted its objections to the changes.

“Mindful of the need to balance the state’s interest in protecting the public against the racing associations’ private rights and interests in operating their businesses, the West Virginia legislature placed the following limitation on the state’s plenary power to supervise race meetings: ‘The racing commission shall not interfere in the internal business or internal affairs of any licensee,’ ” the attorneys for Charles Town said.

“In other words, the state’s power to supervise racing does not allow it to interfere with the racing associations’ internal business decisions,” the Charles Town brief states. “Unfortunately, the racing commission’s new proposed procedural rules violate the letter and spirit of (West Virginia code) by granting the state nearly unlimited power to nullify the internal decisions of racing associations and substitute its own judgment for the business judgment of licensees.”

The TRA also questioned the new rules. McSwain submitted suggested changes, though he previously said horsemen’s groups support the WVRC action to allow excluded permit-holders the right to request an appeal as part of due process.

Industry officials have closely watched the developments in West Virginia given the state Supreme Court ruling, saying it could be precedent-setting.