The following email was sent to Indiana Horse Racing Commission Executive Director Joe Gorajec, Assistant Executive Director Deana Pitman, General Counsel Lea Ellingwood, and Chairman Bill Diener.
"Pursuant to ‘71 IAC 2-12-1 Procedures,’Indiana Breeder & Owner Protection, Inc. (IBOP) is requesting that the Indiana Horse Racing Commission (IHRC) consider the amendment of '71 IAC 10-2-3 Summary suspension' to conform with IC 4-21.5 Administrative Orders & Procedures Act (AOPA). Please consider this correspondence as IBOP’s petition for the IHRC to amend 71 IAC 10-2-3 by striking 71 IAC 10-2-3(c). Our view is that this subsection directly contradicts portions of IC 4-21.5-4 Special Proceedings; Emergency and Other Temporary Orders, which is attached for your review and reference. IBOP would appreciate the change to this administrative rule be considered as an agenda item at the next regularly scheduled IHRC meeting.
Both IC 4-31-12-15(a)(2) and IC 4-31-13-2(a)(2) provide that judges and stewards may sanction a licensee with "A temporary order or other immediate action in the nature of a summary suspension if a licensee's actions constitute an immediate danger to the public health, safety, or welfare." We feel an order of this type would then be governed by IC 4-21.5-4 which is a view reinforced by the language used in 71 IAC 10-2-3(a) which is copied below.
71 IAC 10-2-3 Summary suspension
Authority: IC 4-31-3-9
Affected: IC 4-21.5-4; IC 4-31-13
Sec. 3. (a) If the judges determine that a licensee's actions constitute an immediate danger to the public health, safety, or welfare, or are not in the best interest of racing, or compromise the integrity of operations at a track or satellite facility, the judges may summarily suspend the license pending a hearing pursuant to the provisions of IC 4-21.5-4.
(b) A licensee whose license has been summarily suspended by the judges is entitled to a hearing following a written request by the licensee.
(c) The judges shall conduct a hearing on the summary suspension in the same manner as other disciplinary hearings. At a hearing on a summary suspension, the sole issue is whether the licensee's license should remain suspended pending a final disciplinary hearing and ruling.
(d) Notwithstanding the provisions of 71 IAC 10-3-20, the commission delegates to the executive director the authority to summarily suspend licenses at any time that a live race meeting is not being conducted on association premises or when the judges are not otherwise available. The commission delegates to the executive director the authority to summarily suspend licenses at satellite facilities at any time. In the event of a summary suspension by the executive director and if the licensee makes a written request for a hearing, a hearing on the summary suspension shall be conducted by the commission or an administrative law judge as quickly as is practicable. (Indiana Horse Racing Commission; 71 IAC 10-2-3; emergency rule filed Feb 10, 1994, 9:20 a.m.: 17 IR 1198; emergency rule filed Jan 27, 1995, 3:30 p.m.: 18 IR 1505; emergency rule filed Nov 30, 1995, 1:00 p.m.: 19 IR 688; emergency rule filed Mar 25, 1997, 10:00 a.m.: 20 IR 2162; emergency rule filed Feb 13, 1998, 10:00 a.m.: 21 IR 2426; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
Neither IC 4-31-12-15(a)(2) or IC 4-31-13-2(a)(2) make any direct reference of an authorization for the judges or the stewards to issue a suspension without a hearing. In a scenario where a summary suspension of a person’s license is issued without first having a hearing, we believe the order would be authorized and issued under IC 4-21.5-4-2(a)(1), and therefore, any subsequent hearing would be governed by IC 4-21.5-4-4. In other words, if 71 IAC 10-2-3(a) is an accurate representation of the IHRC's statutory responsibilities, which we believe it is, then 71 IAC 10-2-3(c) should not exist.
What IC 4-21.5-4-4 promises is an evidentiary hearing “as quickly as is practical" with an administrative law judge having the ability to determine one of five potential outcomes; the judges' or stewards' decision is either “voided, terminated, modified, stayed, or continued.” We feel the language in 71 IAC 10-2-3(c) directly contradicts IC 4-21.5-4-4 which states:
IC 4-21.5-4-4
Hearings
Sec. 4. Upon a request by a party for a hearing on an order rendered under section 2(a)(1) of this chapter, the agency shall, as quickly as is practicable, set the matter for an evidentiary hearing. An administrative law judge shall determine whether the order under this chapter should be voided, terminated, modified, stayed, or continued.
As added by P.L.18-1986, SEC.1.
Thank you for your consideration of this matter.
Jim Hartman
IBOP Vice-President
CC: Chairman Diener
Vice-Chair Schaefer
Commissioner Grimes
Commissioner Barclay
Commissioner Schenkel"
The file mentioned in this email "IC 4-21.5-4 Special Proceedings; Emergency and Other Temporary Orders" can be found at http://freepdfhosting.com/503b9c513b.pdf
Sunday, March 24, 2013
Friday, March 1, 2013
Administrative Rule of the Month - Rulings By Judges or Stewards
This month's Indiana Breeder & Owner Protection, Inc. (IBOP) Administrative Rule of the Month takes a look at '71 IAC 10-2-7 Ruling'
from the "Due Process and Disciplinary Action" of the Indiana Horse Racing Commission's (IHRC) administrative rulebook. This particular administrative rule is specific to only disciplinary actions handed down by judges and stewards. The entire administrative rule is copied below; however, our focus will be on 71 IAC 10-2-7(f) which simply states, "The suspension of a license or the imposition of a civil penalty must occur within sixty (60) days after the date of the violation under IC 4-31-13-2(b)." In other words, the stewards and judges can issue suspensions and fines only if the penaly is issued within the sixty days immediately following a violation.
For example, if we assume a violation date of June 1st, the judges and stewards would then have until July 31st to issue their fine or suspension. We can only presume that the legislature's intent was to make sure that a licensee's right to appropriate due process was respected. With that said, the large majority of suspensions and fines issued by the judges and stewards are fairly routine; whip infractions, careless riding, late to the salix barn or paddock, etc. and can be handled within days of a rule violation. We use the analogy of a traffic court issuing minor violations. While the language in 71 IAC 10-2-7(f) seems fairly clear, judges and stewards do, however, issue fines and suspensions outside of the state-mandated sixty day window. IBOP pointed this out to the IHRC at their February 22, 2013, meeting while they were reviewing the 'Ruling Log' from October 1, 2012 through January 31, 2013, which was met with an underwhelming concern.
71 IAC 10-2-7 Ruling
Authority: IC 4-31-3-9
Affected: IC 4-21.5-3-1; IC 4-31-13-2
Sec. 7. (a) The issues at a disciplinary hearing shall be decided by a majority vote of the judges. If the vote is not unanimous, the dissenting judge shall include with the record of the hearing a written statement of the reasons for the dissent.
(b) A ruling by the judges must be on a form prescribed by the commission and include the following:
(1) The full name, Social Security number (optional), date of birth, last record address, license type, and license number of the person who is the subject of the hearing.
(2) A statement of the charges against the person, including a reference to the specific section of the Act or rules of the commission that the licensee is found to have violated.
(3) The date of the hearing and the date the ruling was issued.
(4) The penalty imposed.
(5) If there was a settlement, the settlement that was agreed to.
(6) Any changes in the order of finish or purse distribution.
(7) A statement of the available procedures and time limit for appealing the ruling to the commission.
(8) Other information required by the commission.
(c) A ruling must be signed by a majority of the judges.
(d) If possible, the judges or their designee shall hand deliver a copy of the ruling to the person who is the subject of the ruling.
If hand delivery is not possible, the judges shall mail the ruling to the person's last known address, as found in the commission's
licensing files, by regular mail. If the identity, address, or existence of a person is not ascertainable, service shall be made by a single publication in a newspaper of general circulation under IC 4-21.5-3-1. If the ruling includes the disqualification of a horse, the judges shall provide a copy of the ruling to the owner of the horse in the manner provided by this subsection.
(e) At the time the judges inform a person who is the subject of the proceeding of the ruling, the judges shall inform the person
of the person's right to appeal the ruling to the commission.
(f) The suspension of a license or the imposition of a civil penalty must occur within sixty (60) days after the date of the
violation under IC 4-31-13-2(b).
(g) All fines imposed by the judges shall be paid to the commission in accordance with 71 IAC 7-5-3. (Indiana Horse Racing
Commission; 71 IAC 10-2-7; emergency rule filed Feb 10, 1994, 9:20 a.m.: 17 IR 1199; emergency rule filed Jan 27, 1995, 3:30
p.m.: 18 IR 1506; emergency rule filed Mar 25, 1997, 10:00 a.m.: 20 IR 2164; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899;
readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
For a little more background, 71 IAC 10-2-7(f) copies, almost word-for-word and refers directly to, the language in Indiana statute in IC 4-31-13-2(b) which is from the chapter entitled "Offenses and Enforcement." That portion of Indiana Code is copied below:
IC 4-31-13-2
Disciplinary hearings; suspension of license; limitation of actions; appeal
Sec. 2. (a) The commission may adopt rules under IC 4-22-2 to delegate to the stewards and judges of racing meetings under the jurisdiction of the commission the power to conduct disciplinary hearings on behalf of the commission. The stewards and judges shall give at least twelve (12) hours notice of any such hearing. The stewards and judges, on behalf of the commission, may impose one (1) or more of the following sanctions against a licensee who violates this article or the rules or orders of the commission:
(1) A civil penalty not to exceed one thousand dollars ($1,000).
(2) A temporary order or other immediate action in the nature of a summary suspension if a licensee's actions constitute an immediate danger to the public health, safety, or welfare.
(3) Suspension of a license held by the licensee for not more than sixty (60) days. The suspension of a license under this subdivision is:
(A) valid even though the suspension extends beyond the period of the racing meeting for which the stewards and judges have been appointed; and
(B) effective at all other racing meetings under the jurisdiction of the commission.
(4) A rule that a person must stay off the premises of one (1) or more permit holders if necessary in the public interest to maintain proper control over recognized meetings.
(5) Referral of the matter to the commission for its consideration.
However, at least two (2) of the stewards or judges at a racing meeting must concur in a suspension or civil penalty.
(b) The suspension of a license or the imposition of a civil penalty under this section must occur within sixty (60) days after the date of the violation.
(c) A suspension or civil penalty under this section may be appealed to the commission. The commission shall adopt rules establishing procedures for appeals and stays of appeals.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.44; P.L.50-1995, SEC.11.
What 71 IAC 10-2-7(f) in the IHRC rulebook fails to recognize, either purposely or inadvertently, is that IC 4-31-12-15(b) from the chapter of the law entitled "Medication of Race Horses" has the same sixty day requirement for the stewards to hand out suspensions and fines for medication violations. IC 4-31-12-15(b) also states, "The suspension of a license or the imposition of a civil penalty under this section must occur within sixty (60) days of the date of the violation." In other words, medication violations have to be wrapped up by the judges and stewards within sixty days too, but they don't always do so. Indiana's law regarding 'Sanctions imposed by stewards and judges' for medication violations is copied below:
IC 4-31-12-15
Sanctions imposed by stewards and judges
Sec. 15. (a) The commission may adopt rules under IC 4-22-2 to delegate to the stewards and judges of racing meetings the authority to conduct disciplinary hearings on behalf of the commission. The stewards and judges shall give at least twelve (12) hours notice of any such hearing. The stewards and judges, on behalf of the commission, may impose one (1) or more of the following sanctions against a licensee who violates sections 2 through 13 of this chapter:
(1) A civil penalty not to exceed one thousand dollars ($1,000).
(2) A temporary order or other immediate action in the nature of a summary suspension where a licensee's actions constitute an immediate danger to the public health, safety, or welfare.
(3) Suspension of a license held by the licensee for up to sixty (60) days. The suspension of a license under this subdivision is:
(A) valid even though the suspension extends beyond the period of the racing meeting for which the stewards and judges have been appointed; and
(B) effective at all other racing meetings under the jurisdiction of the commission.
(4) A rule that a person must stay off the premises of one (1) or more permit holders if necessary in the public interest to maintain proper control over recognized meetings.
(5) Referral of the matter to the commission for its consideration.
However, at least two (2) of the stewards or judges must concur in a sanction.
(b) The suspension of a license or the imposition of a civil penalty under this section must occur within sixty (60) days of the date of the violation.
(c) A sanction under this section may be appealed to the commission. The commission shall adopt rules establishing procedures for appeals and stays of appeals.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.39; P.L.50-1995, SEC.9.
Based upon the IHRC's own Ruling Log, the definition of 'violation date' for medication violations is the date a specimen was taken from the horse in question. In other words, if a post-race specimen taken on June 1st was found to be positive for either a prohibited substance or an overage of a permitted substance, a fine or suspension coming from either the judges or stewards would have to be issued by July 31st. During that sixty days, which is again required by Indiana law but not included in the IHRC's rulebook, primary test results would have to be processed and received, any split sample testing would have to be completed, a hearing (unless waived) would have to take place, and any penalty imposed. If the judges and stewards cannot meet this sixty day requirement, then they have no statutory authority to issue a fine or a suspension, unless a licensee somehow waives their right to that sixty day time frame. (An attorney could even argue, based upon the definition of "imposition," that even an appeal of a fine or suspension from the judges or stewards would have to take place in the sixty day window as well.)
While we don't expect to see a statement from the IHRC regarding their apparent lack of adherence to state law, we do want to make sure horsemen are aware of the requirements placed on the IHRC by state law. We all have the right to a 'speedy trial' as guaranteed by the Sixth Amendment to our constitution and the state-imposed sixty days is the equivalent for horsemen. In addition, in a scenario where a purse would be redistributed due to disqualification, other horsemen can benefit with adherence to the sixty days, especially where condition eligibility or stakes eligibility of their horses are concerned.
To review the IHRC's Ruling Log from October 1, 2012, to January 31, 2013, please follow this link: http://freepdfhosting.com/f7fb8051e1.pdf. To view this file in a landscape format, you may have to select 'View' from your pdf reader tool bar, then click 'Rotate View', and then click 'Counterclockwise.' Please note: The Violation Date for Ruling Number 12727 on page 3, which is a perfect example of the lack of adherence to the sixty day window, was reported in this log as October 13, 2012, when in fact the first Violation Date was August 7, 2012. If you'd like a copy of the steward's ruling for verification purposes, please contact us at ibopindy@aol.com.
from the "Due Process and Disciplinary Action" of the Indiana Horse Racing Commission's (IHRC) administrative rulebook. This particular administrative rule is specific to only disciplinary actions handed down by judges and stewards. The entire administrative rule is copied below; however, our focus will be on 71 IAC 10-2-7(f) which simply states, "The suspension of a license or the imposition of a civil penalty must occur within sixty (60) days after the date of the violation under IC 4-31-13-2(b)." In other words, the stewards and judges can issue suspensions and fines only if the penaly is issued within the sixty days immediately following a violation.
For example, if we assume a violation date of June 1st, the judges and stewards would then have until July 31st to issue their fine or suspension. We can only presume that the legislature's intent was to make sure that a licensee's right to appropriate due process was respected. With that said, the large majority of suspensions and fines issued by the judges and stewards are fairly routine; whip infractions, careless riding, late to the salix barn or paddock, etc. and can be handled within days of a rule violation. We use the analogy of a traffic court issuing minor violations. While the language in 71 IAC 10-2-7(f) seems fairly clear, judges and stewards do, however, issue fines and suspensions outside of the state-mandated sixty day window. IBOP pointed this out to the IHRC at their February 22, 2013, meeting while they were reviewing the 'Ruling Log' from October 1, 2012 through January 31, 2013, which was met with an underwhelming concern.
71 IAC 10-2-7 Ruling
Authority: IC 4-31-3-9
Affected: IC 4-21.5-3-1; IC 4-31-13-2
Sec. 7. (a) The issues at a disciplinary hearing shall be decided by a majority vote of the judges. If the vote is not unanimous, the dissenting judge shall include with the record of the hearing a written statement of the reasons for the dissent.
(b) A ruling by the judges must be on a form prescribed by the commission and include the following:
(1) The full name, Social Security number (optional), date of birth, last record address, license type, and license number of the person who is the subject of the hearing.
(2) A statement of the charges against the person, including a reference to the specific section of the Act or rules of the commission that the licensee is found to have violated.
(3) The date of the hearing and the date the ruling was issued.
(4) The penalty imposed.
(5) If there was a settlement, the settlement that was agreed to.
(6) Any changes in the order of finish or purse distribution.
(7) A statement of the available procedures and time limit for appealing the ruling to the commission.
(8) Other information required by the commission.
(c) A ruling must be signed by a majority of the judges.
(d) If possible, the judges or their designee shall hand deliver a copy of the ruling to the person who is the subject of the ruling.
If hand delivery is not possible, the judges shall mail the ruling to the person's last known address, as found in the commission's
licensing files, by regular mail. If the identity, address, or existence of a person is not ascertainable, service shall be made by a single publication in a newspaper of general circulation under IC 4-21.5-3-1. If the ruling includes the disqualification of a horse, the judges shall provide a copy of the ruling to the owner of the horse in the manner provided by this subsection.
(e) At the time the judges inform a person who is the subject of the proceeding of the ruling, the judges shall inform the person
of the person's right to appeal the ruling to the commission.
(f) The suspension of a license or the imposition of a civil penalty must occur within sixty (60) days after the date of the
violation under IC 4-31-13-2(b).
(g) All fines imposed by the judges shall be paid to the commission in accordance with 71 IAC 7-5-3. (Indiana Horse Racing
Commission; 71 IAC 10-2-7; emergency rule filed Feb 10, 1994, 9:20 a.m.: 17 IR 1199; emergency rule filed Jan 27, 1995, 3:30
p.m.: 18 IR 1506; emergency rule filed Mar 25, 1997, 10:00 a.m.: 20 IR 2164; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899;
readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
For a little more background, 71 IAC 10-2-7(f) copies, almost word-for-word and refers directly to, the language in Indiana statute in IC 4-31-13-2(b) which is from the chapter entitled "Offenses and Enforcement." That portion of Indiana Code is copied below:
IC 4-31-13-2
Disciplinary hearings; suspension of license; limitation of actions; appeal
Sec. 2. (a) The commission may adopt rules under IC 4-22-2 to delegate to the stewards and judges of racing meetings under the jurisdiction of the commission the power to conduct disciplinary hearings on behalf of the commission. The stewards and judges shall give at least twelve (12) hours notice of any such hearing. The stewards and judges, on behalf of the commission, may impose one (1) or more of the following sanctions against a licensee who violates this article or the rules or orders of the commission:
(1) A civil penalty not to exceed one thousand dollars ($1,000).
(2) A temporary order or other immediate action in the nature of a summary suspension if a licensee's actions constitute an immediate danger to the public health, safety, or welfare.
(3) Suspension of a license held by the licensee for not more than sixty (60) days. The suspension of a license under this subdivision is:
(A) valid even though the suspension extends beyond the period of the racing meeting for which the stewards and judges have been appointed; and
(B) effective at all other racing meetings under the jurisdiction of the commission.
(4) A rule that a person must stay off the premises of one (1) or more permit holders if necessary in the public interest to maintain proper control over recognized meetings.
(5) Referral of the matter to the commission for its consideration.
However, at least two (2) of the stewards or judges at a racing meeting must concur in a suspension or civil penalty.
(b) The suspension of a license or the imposition of a civil penalty under this section must occur within sixty (60) days after the date of the violation.
(c) A suspension or civil penalty under this section may be appealed to the commission. The commission shall adopt rules establishing procedures for appeals and stays of appeals.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.44; P.L.50-1995, SEC.11.
What 71 IAC 10-2-7(f) in the IHRC rulebook fails to recognize, either purposely or inadvertently, is that IC 4-31-12-15(b) from the chapter of the law entitled "Medication of Race Horses" has the same sixty day requirement for the stewards to hand out suspensions and fines for medication violations. IC 4-31-12-15(b) also states, "The suspension of a license or the imposition of a civil penalty under this section must occur within sixty (60) days of the date of the violation." In other words, medication violations have to be wrapped up by the judges and stewards within sixty days too, but they don't always do so. Indiana's law regarding 'Sanctions imposed by stewards and judges' for medication violations is copied below:
IC 4-31-12-15
Sanctions imposed by stewards and judges
Sec. 15. (a) The commission may adopt rules under IC 4-22-2 to delegate to the stewards and judges of racing meetings the authority to conduct disciplinary hearings on behalf of the commission. The stewards and judges shall give at least twelve (12) hours notice of any such hearing. The stewards and judges, on behalf of the commission, may impose one (1) or more of the following sanctions against a licensee who violates sections 2 through 13 of this chapter:
(1) A civil penalty not to exceed one thousand dollars ($1,000).
(2) A temporary order or other immediate action in the nature of a summary suspension where a licensee's actions constitute an immediate danger to the public health, safety, or welfare.
(3) Suspension of a license held by the licensee for up to sixty (60) days. The suspension of a license under this subdivision is:
(A) valid even though the suspension extends beyond the period of the racing meeting for which the stewards and judges have been appointed; and
(B) effective at all other racing meetings under the jurisdiction of the commission.
(4) A rule that a person must stay off the premises of one (1) or more permit holders if necessary in the public interest to maintain proper control over recognized meetings.
(5) Referral of the matter to the commission for its consideration.
However, at least two (2) of the stewards or judges must concur in a sanction.
(b) The suspension of a license or the imposition of a civil penalty under this section must occur within sixty (60) days of the date of the violation.
(c) A sanction under this section may be appealed to the commission. The commission shall adopt rules establishing procedures for appeals and stays of appeals.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.39; P.L.50-1995, SEC.9.
Based upon the IHRC's own Ruling Log, the definition of 'violation date' for medication violations is the date a specimen was taken from the horse in question. In other words, if a post-race specimen taken on June 1st was found to be positive for either a prohibited substance or an overage of a permitted substance, a fine or suspension coming from either the judges or stewards would have to be issued by July 31st. During that sixty days, which is again required by Indiana law but not included in the IHRC's rulebook, primary test results would have to be processed and received, any split sample testing would have to be completed, a hearing (unless waived) would have to take place, and any penalty imposed. If the judges and stewards cannot meet this sixty day requirement, then they have no statutory authority to issue a fine or a suspension, unless a licensee somehow waives their right to that sixty day time frame. (An attorney could even argue, based upon the definition of "imposition," that even an appeal of a fine or suspension from the judges or stewards would have to take place in the sixty day window as well.)
While we don't expect to see a statement from the IHRC regarding their apparent lack of adherence to state law, we do want to make sure horsemen are aware of the requirements placed on the IHRC by state law. We all have the right to a 'speedy trial' as guaranteed by the Sixth Amendment to our constitution and the state-imposed sixty days is the equivalent for horsemen. In addition, in a scenario where a purse would be redistributed due to disqualification, other horsemen can benefit with adherence to the sixty days, especially where condition eligibility or stakes eligibility of their horses are concerned.
To review the IHRC's Ruling Log from October 1, 2012, to January 31, 2013, please follow this link: http://freepdfhosting.com/f7fb8051e1.pdf. To view this file in a landscape format, you may have to select 'View' from your pdf reader tool bar, then click 'Rotate View', and then click 'Counterclockwise.' Please note: The Violation Date for Ruling Number 12727 on page 3, which is a perfect example of the lack of adherence to the sixty day window, was reported in this log as October 13, 2012, when in fact the first Violation Date was August 7, 2012. If you'd like a copy of the steward's ruling for verification purposes, please contact us at ibopindy@aol.com.
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