At issue during the hearing before Franklin County (Ky.) Circuit Judge Thomas Wingate was whether the KHRA has the jurisdiction to proceed with an upcoming hearing into whether Biancone violated the terms of a settlement agreement with the regulatory body.
In the end, Wingate gave both sides five days from May 14 in which to produce written arguments supporting their respective positions. He said he would then rule on whether the KHRA has the right to proceed with another hearing.
The case began last fall when Biancone entered into an agreement with the KHRA that provided for his license to be suspended for six months, from Nov. 1, 2007, to April 30, 2008, and that for an additional six months he would not apply for a trainer’s license. The agreement came after stewards suspended Biancone for one year following the detection of the prohibited substance cobra venom in a cooler at the trainer’s Keeneland barn.
The KHRA had notified Biancone he was to appear for a May 19 hearing to determine whether he had violated the settlement agreement. The alleged violations stem from Biancone’s presence at the Hurricane Hall training track near Lexington, which he and client Fab Oak Stables are in the process of purchasing. Biancone’s attorneys were seeking an injunction from Wingate to block the May 19 hearing, which has subsequently been rescheduled to some time after June 2. Biancone’s attorneys contend his presence at the training facility does not violate the settlement because he was not acting in capacity as a trainer and his visits were part of his due diligence in connection with the lease and purchase of the property.
Following a determination by KHRA investigators that a violation had occurred, Biancone was notified to appear before hearing officer James Robke April 14. On the morning of the April 14 hearing, Biancone and the authority agreed to another settlement agreement that extended the suspension period for another three months but eliminated the six-month period in which Biancone was prohibited from applying for a trainer’s license, according to the injunction filed on behalf of the trainer. That agreement was considered by the KHRA during its regular monthly meeting April 21, but after a two-hour closed meeting, the regulators took no action either approving or disapproving the settlement, setting the stage for the May 21 hearing date and the lawsuit filed by Biancone.
“It is our position there is no jurisdiction for them to go forward with such a hearing,” said Biancone’s attorney, Frank Becker, adding that there is no statutory authority for a state regulatory agency to determine whether a violation of an agreement has occurred.
Rather than the KHRA making the determination of a violation, Becker said his client believed the circuit court was the appropriate venue in which to have his hearing.
In response to a question from the judge, Becker said the KHRA had not charged Biancone with any new violations, such as training without a license.
Robert Watt, an attorney retained by the KHRA to represent it in the case, contended that the body does have jurisdiction to conduct the Biancone hearing “because it is an agreement between the agency and someone it licenses.”
Rather than bringing new charges against Biancone, Watt said the KHRA staff “felt the fair way to proceed was to conduct an investigation.”
Becker said the April 21 closed meeting, held without Biancone’s attorneys being present, was the “equivalent of a jury having a separate meeting with the prosecutor and witnesses outside the presence of the defendant.”
Watt said the April 21 meeting did not fit the description provided by Becker because there was no testimony presented during the two-hour session. He said the KHRA’s hearing officer in the Biancone case gave his recommendation to the authority members and that chief steward John Veitch spoke.
“The only thing that happened at that meeting was whether the (new) settlement agreement should be approved,” he said.
Wingate said he will first rule on the jurisdiction issue before proceeding with the rest of the points outlined in the suit filed by Biancone.
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