The Indiana Horse Racing Commission has released their 2012 Annual Report, which is the first under new Chairman Bill Diener. Here is the link to the report: http://freepdfhosting.com/bfcf53cea5.pdf.
If you're sharp, and understand basic math, see if you can find the errors on page 5 regarding handle on Indiana races. The same errors have been made in every Annual Report in recent history.
Update: On August 16th, the IHRC updated the 2012 Annual Report to correct some on-going math errors. Here's the link to the corrected report: http://www.in.gov/hrc/files/12_Annual_Report_book.pdf. While we didn't get a response, here's exactly what we said to Chairman Diener last week:
"Chairman Diener, I noticed that the IHRC's 2012 Annual Report has been posted the commission website. Each year, the annual report is one of the few publications, and possibly only publication, that provides a summary of the handle at Indiana's race tracks. In this year's edition, the 'Live Racing at Tracks' is page 5, and each year, the same mathematical error is made on this page.
If you look at the 'Total' column on the page, you'll see simple addition of the Hoosier Park handle numbers to the Indiana Downs handle numbers for each breed. For most of the metrics on this page, simple addition works to create a total. Where simple addition doesn't work is with the averages calculated on this page. More specifically, the average daily handle and average handle per race for quarter horses are being added together. What the annual report does is add the averages together to create a total, yet averages can't be added together as overall averages are a completely separate calculation.
More specifically, the average quarter horse handle per race at Hoosier Park is indicated to be $2,742 with the average at Indiana Downs indicated to be $3,084. The average in the Total column is indicated to be $5,826. Yet, based upon the numbers provided, the overall average is really $2,912. It's mathematically impossible to have an overall average greater than either of the other two averages in the calculation. This same adding-averages-together error is also made on the Simulcast Handle chart on the same page.
For your convenience, here's the link to the current annual report: http://www.in.gov/hrc/files/12_Annual_Report_book.pdf
Thanks,
Jim Hartman"
Friday, August 9, 2013
Thursday, August 1, 2013
Administrative Rule of the Month - 71 IAC 7.5-3-4 Scale of Weights
This month's Indiana Breeder & Owner Protection, Inc. (IBOP) Administrative Rule of the Month is going to focus on a thoroughbred and quarter horse rule '71 IAC 7.5-3-4 Scale of Weights.' With the filing of this particular rule with the Indiana Register on July 18, 2013, the Scale of Weights administrative rule became the first and only rule, in the history of the Indiana Horse Racing Commission (IHRC), to be completed by going through the regular rulemaking process. As our regular readers are well aware of, IBOP has been very critical over the years of the IHRC's use of emergency rulemaking process which only requires a majority vote of five commissioners and filing with the Indiana Register to become "law." The regular rulemaking process requires, among other steps, a public notice, a public hearing, a review by the Attorney General's office for legality, and a final approval by the Governor.
The 'Scale of Weights' rule was absolutely the most ridicules administrative rule for the IHRC to have go through the regular rulemaking process. In fact, doing so was downright stupid, but definitely illustrates the IHRC's cavalier attitude toward their responsibilities as regulators as well as demonstrates their overall lack of class. While that last statement is more directed at the IHRC staff, as you will soon see, the commissioners have an overall responsibility to provide oversight to a group of state employees who appear as if they are completely oblivious and quality control challenged. Our timeline with the 'Scale of Weights' rule should demonstrate our last statement.
The 'Scale of Weights' timeline begins on April 19, 2012. (Yes, 2012.) The first agenda item at that particular IHRC meeting was, "Consideration of an emergency rule amendment regarding 71 IAC 7.5-3-4, Scale of weights." (Yes, emergency rule.) Jeff Johnston, from The Jockey's Guild, presented the Association of Racing Commissioners International (ARCI) Model Rule for the new scale which basically increased the minimum weight for thoroughbreds to 118 pounds from 116 pounds. The presentation took three minutes and the commissioners voted unanimously to approve the new scale and the entire agenda item took just a few minutes. Yet, the actual ARCI Model Rule, approved in April of 2012, will not be finalized until August 17, 2013.
As we mentioned earlier, an emergency rule isn't finalized until the language is filed with the Indiana Register. In late June, 2012, the 'Scale of Weights' emergency rule was never filed with the Indiana Register, (yes, over two months later) yet every other emergency rule approved at the April 19th meeting was already filed with the Indiana Register. Our curiosity as to why led us to actually read the approved emergency rule which was a hand-out at the April 19th meeting. What we found was that the 'Model Rule' approved by the IHRC included an error. Instead of assigning a minimum weight of 120 pounds for two-year old quarter horses, the IHRC approved a minimum weight of 130 pounds. (Yes, 130 pounds.) This makes no sense in any racing jurisdiction, especially when considering the minimum weight assignments in the rule were 122 pounds for three-year olds and 124 pounds for four-years. The combination of the rule not being filed in a timely fashion and knowing of their approved error, we sent the following to all of the commissioners: http://ibopindy.blogspot.com/2012/06/71-iac-75-3-4-scale-of-weights.html. The error of their ways was pointed out on June 30, 2012.
On July 12, 2012, the IHRC staff filed the emergency rule, which was approved almost three months earlier, with the Indiana Register. They also filed the rule with the 130 pound minimum weight for a two-year old quarter horse. So, now the 130 pound minimum for a two-year old quarter horse is law in Indiana. And, below is exactly how the 'Scale of Weights' rule reads today, August 1, 2013. (Yes, the IHRC's error is still not fixed.)
71 IAC 7.5-3-4 Scale of weights
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 4. (a) With the exception of apprentice allowances, handicap races, Indiana breds, Indiana restricted races, three (3) year old horses entered to run in races against horses four (4) years old and upwards, and the allowance provided in subsection (2) of this section [redesignated subsection (b) by the Publisher], no jockey shall be assigned a weight of less than one hundred eighteen (118) pounds. For three (3) year old horses entered to run in races against horses four (4) years old and upwards from January 1 through August 31, no jockey shall be assigned a weight of less than one hundred sixteen (116) pounds.
(b) Except in handicaps, fillies two (2) years old shall be allowed three (3) pounds, and fillies and mares three (3) years old and upward shall be allowed five (5) pounds before September 1, and three (3) pounds thereafter in races where competing against horses of the opposite sex.
(c) Quarter horses, appaloosas, and paints minimum scale weights shall be one hundred thirty (130) pounds for two-year-olds, one hundred twenty-two (122) pounds for three-year-olds, and one hundred twenty-four (124) pounds for four-year-olds and older.
(d) A notice shall be included in the daily program that all jockeys will carry approximately three (3) pounds more than the published weight to account for safety equipment (vest and helmet) that is not included in required weighing out procedures.
Additionally, jockeys may weigh in with an additional three (3) pounds for inclement weather gear when approved by the stewards.
(Indiana Horse Racing Commission; 71 IAC 7.5-3-4; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2868, eff Jul 1, 1995; emergency rule filed Aug 23, 2001, 9:58 a.m.: 25 IR 119; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA; emergency rule filed Jul 12, 2012, 3:31 p.m.: 20120718-IR-071120428ERA)
At the August 30, 2012, IHRC meeting, the new Chairman laid out the IHRC's new policy as to when the regular rulemaking process would be used instead of the emergency rulemaking. When the IHRC first asked for input from horsemen on this matter in May 2012, IBOP responded with the following: http://www.ibopindy.blogspot.com/2012/06/letters-to-commissioners-input-on.html to basically state to use the emergency rulemaking process when an emergency exists. The emergency rulemaking considerations in the IHRC's policy include; whether the ARCI has previously adopted a model rule, effect of the safety of race participants, impact on the integrity of racing, and housekeeping, which we equate to correcting errors to name a few. All of those 'considerations' could have easily been justification to use the emergency rulemaking process to correct the 130 pound assignment for two-year old quarter horses. Not with this bunch. They decide to fix this error by going through the regular rulemaking process.
On October 19, 2012, the IHRC staff filed a 'Notice of Intent to Adopt' to fix their error: http://www.in.gov/legislative/iac/20121003-IR-071120549NIA.xml.pdf. The IHRC staff waited until February 20, 2013, to file the Proposed Rule: http://www.in.gov/legislative/iac/20130220-IR-071120549PRA.xml.pdf. At the same time, the IHRC staff published the public hearing announcement: http://www.in.gov/legislative/iac/20130220-IR-071120549PHA.xml.pdf which was scheduled for March 22, 2013. Oh, yeah, the rule's Economic Impact Statement was also filed on February 20, 2013: http://www.in.gov/legislative/iac/20130220-IR-071120549EIA.xml.pdf, and imagine that, there is no economic impact when you change the minimum weight of a two-year old quarter horse from 130 pounds to 120 pounds.
IBOP representatives didn't attend the public hearing held on March 22, 2013, but we did send our comments to be part of the record. What we suggested was that using the regular rulemaking process to fix an error in a rule that was approved by the commission via an emergency rule on April 19, 2012, was a complete waste of time and a complete waste of the tax-payers money. Those written comments became part of the record for this particular rulemaking adventure that ultimately went on to the five commissioners and to the Indiana Attorney General's (AG) office for a legal review.
At their April 5, 2013, meeting, the IHRC approved this 'new' rule almost one year removed from their initial mistake. After the IHRC approval, the proposed rule moved on to the AG's office. Evidently, the AG found no legal issues (sarcasm included) with lowering the minimum weight assignment for a two-year old quarter horse to 120 pounds as they signed off on the 'legality' on July 11, 2013. Hopefully, our comments gave some poor assistant deputy attorney general a chuckle when the record was reviewed. After the AG sign-off, the Governor's office approved the proposed rule within a week with the Final Rule being filed with the Indiana Register on July 18, 2013: http://www.in.gov/legislative/iac/20130718-IR-071120549AFA.xml.pdf. Per Indiana law, this rule goes into effect 30 days after the filing with Indiana Register which will be August 17, 2013, almost 16 months after the IHRC staff screwed up the rule in the first place! As we always say, we can't make this stuff up!
The 'Scale of Weights' rule was absolutely the most ridicules administrative rule for the IHRC to have go through the regular rulemaking process. In fact, doing so was downright stupid, but definitely illustrates the IHRC's cavalier attitude toward their responsibilities as regulators as well as demonstrates their overall lack of class. While that last statement is more directed at the IHRC staff, as you will soon see, the commissioners have an overall responsibility to provide oversight to a group of state employees who appear as if they are completely oblivious and quality control challenged. Our timeline with the 'Scale of Weights' rule should demonstrate our last statement.
The 'Scale of Weights' timeline begins on April 19, 2012. (Yes, 2012.) The first agenda item at that particular IHRC meeting was, "Consideration of an emergency rule amendment regarding 71 IAC 7.5-3-4, Scale of weights." (Yes, emergency rule.) Jeff Johnston, from The Jockey's Guild, presented the Association of Racing Commissioners International (ARCI) Model Rule for the new scale which basically increased the minimum weight for thoroughbreds to 118 pounds from 116 pounds. The presentation took three minutes and the commissioners voted unanimously to approve the new scale and the entire agenda item took just a few minutes. Yet, the actual ARCI Model Rule, approved in April of 2012, will not be finalized until August 17, 2013.
As we mentioned earlier, an emergency rule isn't finalized until the language is filed with the Indiana Register. In late June, 2012, the 'Scale of Weights' emergency rule was never filed with the Indiana Register, (yes, over two months later) yet every other emergency rule approved at the April 19th meeting was already filed with the Indiana Register. Our curiosity as to why led us to actually read the approved emergency rule which was a hand-out at the April 19th meeting. What we found was that the 'Model Rule' approved by the IHRC included an error. Instead of assigning a minimum weight of 120 pounds for two-year old quarter horses, the IHRC approved a minimum weight of 130 pounds. (Yes, 130 pounds.) This makes no sense in any racing jurisdiction, especially when considering the minimum weight assignments in the rule were 122 pounds for three-year olds and 124 pounds for four-years. The combination of the rule not being filed in a timely fashion and knowing of their approved error, we sent the following to all of the commissioners: http://ibopindy.blogspot.com/2012/06/71-iac-75-3-4-scale-of-weights.html. The error of their ways was pointed out on June 30, 2012.
On July 12, 2012, the IHRC staff filed the emergency rule, which was approved almost three months earlier, with the Indiana Register. They also filed the rule with the 130 pound minimum weight for a two-year old quarter horse. So, now the 130 pound minimum for a two-year old quarter horse is law in Indiana. And, below is exactly how the 'Scale of Weights' rule reads today, August 1, 2013. (Yes, the IHRC's error is still not fixed.)
71 IAC 7.5-3-4 Scale of weights
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 4. (a) With the exception of apprentice allowances, handicap races, Indiana breds, Indiana restricted races, three (3) year old horses entered to run in races against horses four (4) years old and upwards, and the allowance provided in subsection (2) of this section [redesignated subsection (b) by the Publisher], no jockey shall be assigned a weight of less than one hundred eighteen (118) pounds. For three (3) year old horses entered to run in races against horses four (4) years old and upwards from January 1 through August 31, no jockey shall be assigned a weight of less than one hundred sixteen (116) pounds.
(b) Except in handicaps, fillies two (2) years old shall be allowed three (3) pounds, and fillies and mares three (3) years old and upward shall be allowed five (5) pounds before September 1, and three (3) pounds thereafter in races where competing against horses of the opposite sex.
(c) Quarter horses, appaloosas, and paints minimum scale weights shall be one hundred thirty (130) pounds for two-year-olds, one hundred twenty-two (122) pounds for three-year-olds, and one hundred twenty-four (124) pounds for four-year-olds and older.
(d) A notice shall be included in the daily program that all jockeys will carry approximately three (3) pounds more than the published weight to account for safety equipment (vest and helmet) that is not included in required weighing out procedures.
Additionally, jockeys may weigh in with an additional three (3) pounds for inclement weather gear when approved by the stewards.
(Indiana Horse Racing Commission; 71 IAC 7.5-3-4; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2868, eff Jul 1, 1995; emergency rule filed Aug 23, 2001, 9:58 a.m.: 25 IR 119; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA; emergency rule filed Jul 12, 2012, 3:31 p.m.: 20120718-IR-071120428ERA)
At the August 30, 2012, IHRC meeting, the new Chairman laid out the IHRC's new policy as to when the regular rulemaking process would be used instead of the emergency rulemaking. When the IHRC first asked for input from horsemen on this matter in May 2012, IBOP responded with the following: http://www.ibopindy.blogspot.com/2012/06/letters-to-commissioners-input-on.html to basically state to use the emergency rulemaking process when an emergency exists. The emergency rulemaking considerations in the IHRC's policy include; whether the ARCI has previously adopted a model rule, effect of the safety of race participants, impact on the integrity of racing, and housekeeping, which we equate to correcting errors to name a few. All of those 'considerations' could have easily been justification to use the emergency rulemaking process to correct the 130 pound assignment for two-year old quarter horses. Not with this bunch. They decide to fix this error by going through the regular rulemaking process.
On October 19, 2012, the IHRC staff filed a 'Notice of Intent to Adopt' to fix their error: http://www.in.gov/legislative/iac/20121003-IR-071120549NIA.xml.pdf. The IHRC staff waited until February 20, 2013, to file the Proposed Rule: http://www.in.gov/legislative/iac/20130220-IR-071120549PRA.xml.pdf. At the same time, the IHRC staff published the public hearing announcement: http://www.in.gov/legislative/iac/20130220-IR-071120549PHA.xml.pdf which was scheduled for March 22, 2013. Oh, yeah, the rule's Economic Impact Statement was also filed on February 20, 2013: http://www.in.gov/legislative/iac/20130220-IR-071120549EIA.xml.pdf, and imagine that, there is no economic impact when you change the minimum weight of a two-year old quarter horse from 130 pounds to 120 pounds.
IBOP representatives didn't attend the public hearing held on March 22, 2013, but we did send our comments to be part of the record. What we suggested was that using the regular rulemaking process to fix an error in a rule that was approved by the commission via an emergency rule on April 19, 2012, was a complete waste of time and a complete waste of the tax-payers money. Those written comments became part of the record for this particular rulemaking adventure that ultimately went on to the five commissioners and to the Indiana Attorney General's (AG) office for a legal review.
At their April 5, 2013, meeting, the IHRC approved this 'new' rule almost one year removed from their initial mistake. After the IHRC approval, the proposed rule moved on to the AG's office. Evidently, the AG found no legal issues (sarcasm included) with lowering the minimum weight assignment for a two-year old quarter horse to 120 pounds as they signed off on the 'legality' on July 11, 2013. Hopefully, our comments gave some poor assistant deputy attorney general a chuckle when the record was reviewed. After the AG sign-off, the Governor's office approved the proposed rule within a week with the Final Rule being filed with the Indiana Register on July 18, 2013: http://www.in.gov/legislative/iac/20130718-IR-071120549AFA.xml.pdf. Per Indiana law, this rule goes into effect 30 days after the filing with Indiana Register which will be August 17, 2013, almost 16 months after the IHRC staff screwed up the rule in the first place! As we always say, we can't make this stuff up!
Monday, July 1, 2013
Administrative Rule of the Month - 71 IAC 10-2-3 Summary Suspension
Unless deemed to be an emergency, new laws or sections of new laws in Indiana usually become effective on July 1st to coincide with the State's new fiscal year. The exception would be if within the body of the new law there is a later effective date. So, many of the provisions of Senate Bill (SB) 609, which was deemed the "horse racing" bill, go into effect today. This includes a requirement for the Indiana Horse Racing Commission (IHRC) to annually report the competitiveness of Indiana racing versus other states (maybe they will actually learn something by doing so), to annually post to their website a summary of disciplinary actions taken (like most other states), and to "develop internal procedures for accepting, recording, investigating, and resolving complaints from licensees and the general public." In sworn testimony as part of a hearing in 2012, when asked whether the IHRC had a formal written complaint procedure, Executive Director Joe Gorajec said, "I'm not certain." Well, now the IHRC has a requirement to create a complaint and response policy. In addition, all complaints and their resolutions must also be posted to the IHRC website.
Many of the provisions within SB 609 were developed from the 2011 investigation into the IHRC by Indiana's Inspector General (IG). The reaction by the IHRC to many of the recommendations in the IG's report was to say the least underwhelming which necessitated changes in the law to force a few issues. One of those issues was the IHRC's system of due process and disciplinary action, which the IG suggested may actually be detrimental to horse racing. Essentially, what portions of SB 609 are designed to do is force the IHRC to follow existing laws rather than create administrative rules (their own laws) that attempt to circumvent Indiana statute. Given IBOP's interpretation of SB 609, the IHRC should be required to significantly modify, and eliminate, large portions of their administrative rules in '71 IAC 10 Due Process and Disciplinary Action.' This aspect of SB 609, however, doesn't go into effect until January 1, 2014, giving the IHRC the next six months to rework and/or eliminate their administrative rules that conflict with what will be Indiana law. But, will they? One possible answer to that question leads us to our Administrative Rule of the Month,'71 IAC 10-2-3 Summary suspension.'
Knowing that SB 609 would require the IHRC to overhaul or eliminate portions of their administrative rules, in March, IBOP tested the IHRC's willingness to modify a due process administrative rule that is clearly beyond current Indiana statute. So, IBOP petitioned the IHRC to amend '71 IAC 10-2-3 Summary suspension' to conform with 'IC 4-21.5 Administrative Orders & Procedures Act,' which should be the law of the land here in Indiana even for the IHRC. (At the same time, we raised this particular administrative rule to the legislative team that actually drafted SB 609, even suggesting additional language be added to SB 609.) Our petition asked for the IHRC to amend 71 IAC 10-2-3 by striking 71 IAC 10-2-3(c), as being contrary to Indiana law as it is written today. 71 IAC 10-2-3(c) can be seen copied below.
For some background, a summary suspension is simply a suspension of a person's license without first having a hearing. Two Indiana laws, IC 4-31-12-15(a)(2) for medication violations and IC 4-31-13-2(a)(2) for other infractions, 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." 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 these suspension without a hearing, but is implied by "immediate action." IBOP's view is that an order of this type is governed by Indiana law via IC 4-21.5-4 and not procedures established through the IHRC administrative rules. In fact, our view is actually reinforced by the IHRC's own 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)
Very clearly, 71 IAC 10-2-3(a) states that a summary suspension is governed by "IC 4-21.5-4" which is labeled as "Special Proceedings; Emergency and Other Temporary Orders" in the Indiana Code and can be found at: http://www.in.gov/legislative/ic/code/title4/ar21.5/ch4.html. In a scenario where a summary suspension of a person’s license is issued without first having a hearing, that order is actually authorized and issued under IC 4-21.5-4-2(a)(1), and the balance of IC 4-21.5-4 spells out the required procedures. One of those procedures in IC 4-21.5-4-4 promises an evidentiary hearing “as quickly as is practical" with an administrative law judge having the ability to determine one of five potential outcomes. What is supposed to happen is that a hearing takes place where the judges' or stewards' decision is either “voided, terminated, modified, stayed, or continued.” That's the law, or supposed to be the law. The language in 71 IAC 10-2-3(c) directly contradicts what is written in current Indiana law via 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.
However, 71 IAC 10-2-3(c) attempts to circumvent the law by forcing a summarily suspended licensee to have a hearing in front of the judges or stewards, not an administrative law judge as per the current law, with only one possible outcome ("sole issue") as to whether or not a stay is granted pending further hearings. This portion of the IHRC's administrative rule is absolutely contrary to Indiana law. In other words, if 71 IAC 10-2-3(a) is an accurate representation of the IHRC's statutory responsibilities, which according to Indiana law it is, then 71 IAC 10-2-3(c) should not exist, yet it does. The IHRC is effectively creating their own law that deviates from current Indiana law. Yet, when petitioned with this information, the IHRC has done nothing to bring their administrative rule into compliance with current Indiana law. It's this attitude that provides no confidence that the IHRC will voluntarily adjust their 'Due Process and Disciplinary Action' section accordingly to comply with any new Indiana law.
As the year progresses, IBOP will be monitoring the progress (or lack of progress) at the IHRC regarding the changes required by SB 609. The best predictor of future behavior is past behavior. With that said, we're not expecting much, so IBOP is armed with a few strategies of our own using some nuances within Indiana's laws that can affect some changes. We'll have more on this subject later.
Many of the provisions within SB 609 were developed from the 2011 investigation into the IHRC by Indiana's Inspector General (IG). The reaction by the IHRC to many of the recommendations in the IG's report was to say the least underwhelming which necessitated changes in the law to force a few issues. One of those issues was the IHRC's system of due process and disciplinary action, which the IG suggested may actually be detrimental to horse racing. Essentially, what portions of SB 609 are designed to do is force the IHRC to follow existing laws rather than create administrative rules (their own laws) that attempt to circumvent Indiana statute. Given IBOP's interpretation of SB 609, the IHRC should be required to significantly modify, and eliminate, large portions of their administrative rules in '71 IAC 10 Due Process and Disciplinary Action.' This aspect of SB 609, however, doesn't go into effect until January 1, 2014, giving the IHRC the next six months to rework and/or eliminate their administrative rules that conflict with what will be Indiana law. But, will they? One possible answer to that question leads us to our Administrative Rule of the Month,'71 IAC 10-2-3 Summary suspension.'
Knowing that SB 609 would require the IHRC to overhaul or eliminate portions of their administrative rules, in March, IBOP tested the IHRC's willingness to modify a due process administrative rule that is clearly beyond current Indiana statute. So, IBOP petitioned the IHRC to amend '71 IAC 10-2-3 Summary suspension' to conform with 'IC 4-21.5 Administrative Orders & Procedures Act,' which should be the law of the land here in Indiana even for the IHRC. (At the same time, we raised this particular administrative rule to the legislative team that actually drafted SB 609, even suggesting additional language be added to SB 609.) Our petition asked for the IHRC to amend 71 IAC 10-2-3 by striking 71 IAC 10-2-3(c), as being contrary to Indiana law as it is written today. 71 IAC 10-2-3(c) can be seen copied below.
For some background, a summary suspension is simply a suspension of a person's license without first having a hearing. Two Indiana laws, IC 4-31-12-15(a)(2) for medication violations and IC 4-31-13-2(a)(2) for other infractions, 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." 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 these suspension without a hearing, but is implied by "immediate action." IBOP's view is that an order of this type is governed by Indiana law via IC 4-21.5-4 and not procedures established through the IHRC administrative rules. In fact, our view is actually reinforced by the IHRC's own 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)
Very clearly, 71 IAC 10-2-3(a) states that a summary suspension is governed by "IC 4-21.5-4" which is labeled as "Special Proceedings; Emergency and Other Temporary Orders" in the Indiana Code and can be found at: http://www.in.gov/legislative/ic/code/title4/ar21.5/ch4.html. In a scenario where a summary suspension of a person’s license is issued without first having a hearing, that order is actually authorized and issued under IC 4-21.5-4-2(a)(1), and the balance of IC 4-21.5-4 spells out the required procedures. One of those procedures in IC 4-21.5-4-4 promises an evidentiary hearing “as quickly as is practical" with an administrative law judge having the ability to determine one of five potential outcomes. What is supposed to happen is that a hearing takes place where the judges' or stewards' decision is either “voided, terminated, modified, stayed, or continued.” That's the law, or supposed to be the law. The language in 71 IAC 10-2-3(c) directly contradicts what is written in current Indiana law via 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.
However, 71 IAC 10-2-3(c) attempts to circumvent the law by forcing a summarily suspended licensee to have a hearing in front of the judges or stewards, not an administrative law judge as per the current law, with only one possible outcome ("sole issue") as to whether or not a stay is granted pending further hearings. This portion of the IHRC's administrative rule is absolutely contrary to Indiana law. In other words, if 71 IAC 10-2-3(a) is an accurate representation of the IHRC's statutory responsibilities, which according to Indiana law it is, then 71 IAC 10-2-3(c) should not exist, yet it does. The IHRC is effectively creating their own law that deviates from current Indiana law. Yet, when petitioned with this information, the IHRC has done nothing to bring their administrative rule into compliance with current Indiana law. It's this attitude that provides no confidence that the IHRC will voluntarily adjust their 'Due Process and Disciplinary Action' section accordingly to comply with any new Indiana law.
As the year progresses, IBOP will be monitoring the progress (or lack of progress) at the IHRC regarding the changes required by SB 609. The best predictor of future behavior is past behavior. With that said, we're not expecting much, so IBOP is armed with a few strategies of our own using some nuances within Indiana's laws that can affect some changes. We'll have more on this subject later.
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