WSR 05-04-083

PROPOSED RULES

HORSE RACING COMMISSION


[ Filed February 2, 2005, 7:59 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-21-008.

Title of Rule and Other Identifying Information: Chapter 260-84 WAC, Fines and suspensions.

Hearing Location(s): Auburn City Council Chambers, 25 West Main, Auburn, WA 98001, on March 10, 2005, at 9:30 a.m.

Date of Intended Adoption: March 10, 2005.

Submit Written Comments to: Robert J. Lopez, 6326 Martin Way, Suite 209, Olympia, WA 98516-5578, e-mail rlopez@whrc.state.wa.us, fax (360) 459-6461, by March 7, 2005.

Assistance for Persons with Disabilities: Contact Patty Sorby by March 10, 2005, TTY (360) 459-6462.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of this proposal is to make sweeping changes to chapter 260-84 WAC, Fines and suspensions, as part of the agency's effort to comply with the Governor's Executive Order 97-02 regulatory improvement. The proposal does the following: (1) Renames the chapter from fines and suspensions to penalties; (2) moves the penalty matrix from WAC 260-24-510 to chapter 260-84 WAC; (3) moves four sections from chapter 260-70 WAC, Controlled medication program, to chapter 260-84 WAC; and (4) repeals WAC 260-70-670, 260-70-680, 260-70-690, 260-70-800, 260-84-010, 260-84-020, and 260-84-050.

Reasons Supporting Proposal: Assists the agency to improve the efficiency and fairness of our regulatory process.

Statutory Authority for Adoption: RCW 67.16.020 and [67.16.]040.

Statute Being Implemented: None.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Washington Horse Racing Commission, governmental.

Name of Agency Personnel Responsible for Drafting: Robert J. Lopez, 6326 Martin Way, Suite 209, Olympia, WA 98516-5578, (360) 459-6462; Implementation and Enforcement: Robert M. Leichner, 6326 Martin Way, Suite 209, Olympia, WA 98516-5578, (360) 459-6462.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Not applicable.

A cost-benefit analysis is not required under RCW 34.05.328. Not applicable.

February 1, 2005

R. M. Leichner

Executive Secretary

OTS-7671.3

Chapter 260-84 WAC

((FINES AND SUSPENSIONS)) PENALTIES


AMENDATORY SECTION(Amending Rules of racing, filed 4/21/61)

WAC 260-84-050   Suspensions -- Computation of time.   All suspensions for a specified period of time ((to be considered)) shall be in calendar days. Rulings ((to)) shall show the first and last day of suspension.

[Rules of racing, 137, filed 4/21/61.]


AMENDATORY SECTION(Amending Rules of racing, filed 4/21/61)

WAC 260-84-060   ((General)) Penalty matrixes.   ((Violators of any rule shall be subject to ejection from the grounds and/or to fine, suspension or to be ruled off.)) (1) The imposition of reprimands, fines and suspensions shall be based on the following penalty matrixes:


Class A B Licensed Facilities
Violations within last 12 months 1st Offense 2nd Offense 3rd Offense or subsequent offense
Smoking in restricted areas WAC 260-20-030 $25 $50 $100
Disturbing the peace WAC 260-80-140 Warning - $200 and/or suspension Warning - $500 and/or suspension Suspension
Person performing duties for which they are not licensed WAC 260-36-010 $50 $100 $150
Unlicensed or improperly licensed personnel (trainer's responsibility) WAC 260-28-230 $500
Licensing - failure to divulge a felony WAC 260-36-120 $100 or possible denial of license
Licensing - failure to divulge a gross misdemeanor or misdemeanor WAC 260-36-120 Warning - $50
Licensing - providing false information on application WAC 260-36-120 $50 - $250 or possible denial of license
Licensing - nonparticipation WAC 260-36-080 License canceled
Violation of any claiming rule in chapter 260-60 WAC $200 - $500 plus possible suspension
Use of improper, profane or indecent language to a racing official WAC 260-80-130 $50 $100 $250
Unsafe vehicle operation WAC 260-20-020 Warning - $50 $100 and recommend racing association revoke vehicle pass
Financial responsibility WAC 260-28-030 Resolve 30 days or before the end of the meet (whichever is sooner) to resolve or suspension
Failure to appear - hearing WAC 260-24-510 Suspension pending appearance
Failure to honor riding engagements (call) - agents WAC 260-32-400 $75 $100 $200
Reporting incorrect weight - jockeys WAC 260-32-150 $50 $100 $200
Failure to appear for films - jockeys WAC 260-24-510 $50 $100 $200
Failure to fulfill riding engagement WAC 260-32-080 $100 $150 $200
Easing mount without cause WAC 260-52-040 $250 $250 and/or suspension $500 and/or suspension
Jockey failing to maintain straight course or careless riding WAC 260-52-040 Warning - $750 and/or suspension (riding days)
Jockey's misuse of whip WAC 260-52-040 Warning - $2500
Use of stimulating device (may include batteries) WAC 260-52-040 1 year suspension plus mandatory referral to commission for revocation
Possession of stimulating device (may include batteries) WAC 260-52-040 and 260-80-100 1 year suspension plus mandatory referral to commission for revocation
Offering or accepting a bribe in an attempt to influence the outcome of a race WAC 260-80-010 and 260-80-020 1 year suspension plus mandatory referral to commission for revocation
Entering ineligible horse WAC 260-80-030 $50 $100 $100
Arriving late to the paddock WAC 260-28-200 Warning - $50 Warning - $50 $50 - $100
Failure to have registration papers on file - resulting in a scratch WAC 260-40-090 $50 - $100 $100 $100
Failure to handle business properly - late equipment change, etc. WAC 260-44-010 Warning - $50 $100 $100
Failure to report the correct name of a horse working WAC 260-40-100 Warning - $50 $100 $150
Insufficient workouts - resulting in scratch WAC 260-40-100 $50 - $100 $100 $100

Class C Licensed Facilities
Violations within last 12 months 1st Offense 2nd Offense 3rd Offense or subsequent offense
Smoking in restricted areas WAC 260-20-030 $25 $50 $100
Disturbing the peace WAC 260-80-140 Warning - $100 and/or suspension $250 and/or suspension Suspension
Person performing duties for which they are not licensed WAC 260-36-010 $50 $100 $150
Unlicensed or improperly licensed personnel (trainer's responsibility) WAC 260-28-230 $100
Licensing - failure to divulge a felony WAC 260-36-120 $100 or possible denial of license
Licensing failure to divulge a misdemeanor or gross misdemeanor WAC 260-36-120 Warning - $25
Licensing - providing false information on application WAC 260-36-120 $50 - $250 or possible denial of license
Licensing - nonparticipation WAC 260-36-080 License canceled
Violation of any claiming rule in chapter 260-60 WAC $100 - $250 plus possible suspension
Use of improper, profane or indecent language to a racing official WAC 260-80-130 $50 $100 $250
Unsafe vehicle operation WAC 260-20-020 Warning - $50
Financial responsibility WAC 260-28-030 Resolve 30 days or before the end of the fall meet (whichever is sooner) to resolve or suspension
Failure to appear - hearing WAC 260-24-510 Suspension pending appearance
Failure to honor riding engagements (call) - agents WAC 260-32-400 $25 $50 $100
Reporting incorrect weight - jockeys WAC 260-32-150 $25 $50 $100
Failure to appear for films - jockeys WAC 260-24-510 $25 $50 $100
Failure to fulfill riding engagement WAC 260-32-080 $50 $100 $200
Easing mount without cause WAC 260-52-040 $100 $200 and/or suspension $400 and/or suspension
Jockey failing to maintain straight course or careless riding WAC 260-52-040 Warning - $750 and/or suspension (riding days)
Jockey's misuse of whip WAC 260-52-040 Warning - $2500
Use of stimulating device (may include batteries) WAC 260-52-040 1 year suspension plus mandatory referral to commission for revocation
Possession of stimulating device (may include batteries) WAC 260-52-040 and 260-80-100 1 year suspension plus mandatory referral to commission for revocation
Offering or accepting a bribe in an attempt to influence the outcome of a race WAC 260-80-010 and 260-80-020 1 year suspension plus mandatory referral to commission for revocation
Entering ineligible horse WAC 260-80-030 $25 $50 $50
Arriving late to the paddock WAC 260-28-200 Warning - $25 $50 $50
Failure to have registration papers on file - resulting in a scratch WAC 260-40-090 $50 $100 $100
Failure to handle business properly - late equipment change, etc. WAC 260-44-010 Warning - $50 $50 $50

Class A, B C Licensed Facilities
Violations within last 5 years 1st Offense 2nd Offense 3rd Offense or subsequent offense
Engaging in the illegal sale or distribution of alcohol WAC 260-34-045 30 day suspension 1 year suspension plus mandatory referral to commission for revocation
Using an illegal controlled substance other than marijuana WAC 260-34-045 30 day suspension 1 year suspension plus mandatory referral to commission for revocation
Being under the influence of alcohol and/or drugs WAC 260-34-045 Warning to 1 day suspension 3 day suspension 30 day suspension (1 year suspension plus mandatory referral to the commission for revocation for 4th offense)
Possession or use of marijuana WAC 260-34-045 3 day suspension 30 day suspension 1 year suspension plus mandatory referral to commission for revocation
Illegal possession of any felony drug or controlled substance WAC 260-34-045 1 year suspension plus mandatory referral to commission for revocation
Refusal to submit to a drug or alcohol test WAC 260-34-045 and 260-34-060 1 year suspension plus mandatory referral to commission for revocation
Possession of any equipment or material used for the manufacture or distribution of any drug or controlled substance, or engaging in the sale, manufacture or distribution of any drug or controlled substance on the grounds WAC 260-08-150 Immediate ejection from the grounds and mandatory referral to the commission for revocation
Violations within last 12 months 1st Offense 2nd Offense 3rd Offense
Tampering with a fire protection, prevention or suppression system or device WAC 260-20-030 $50 $100 $250 plus possible suspension
Failure to post problem gambling signs WAC 260-12-250 $50 $100 $200
Failure to complete provisional license application WAC 260-36-200 $100
Failure to pay or default on L&I payment WAC 260-28-220 Suspension until paid plus $25 for each quarter payment is late
Failure to maintain employee L&I records for grooms and assistant trainers (trainer's responsibility) WAC 260-28-230 Warning - $50
Unlicensed person on the backside WAC 260-20-040 Report violation to the racing association

(2) In determining whether an offense is a first, second, third or subsequent offense, the commission, or designee shall include violations, which occurred in Washington as well as any other recognized racing jurisdiction.

(3) For any other violation not specifically listed above, the stewards shall have discretion to impose the penalties as provided in WAC 260-24-510 (3)(b). For violations considered minor, the fine can be up to $500 and/or suspension for up to sixty days. Fines for violations considered major can be up to $2,500 and/or suspension up to one year.

(4) Circumstances which may be considered for the purpose of mitigation or aggravation of any penalty shall include, but are not limited to, the following:

(a) The past record of the licensee or applicant;

(b) The impact of the offense on the integrity of the parimutuel industry;

(c) The danger to human and/or equine safety;

(d) The number of prior violations of the rules of racing or violations of racing rules in other jurisdictions; and/or

(e) The deterrent effect of the penalty imposed.

(5) For violations covered by chapter 260-70 WAC, Medication, the stewards shall follow the penalty guidelines as set forth in WAC 260-84-090.

(6) The stewards may refer any matter to the commission and may include recommendations for disposition. The absence of a stewards' referral shall not preclude commission action in any matter. A stewards' ruling shall not prevent the commission from imposing a more severe penalty.

[Rules of racing, 381, filed 4/21/61.]


AMENDATORY SECTION(Amending Rules of racing, filed 4/21/61)

WAC 260-84-070   Ejectment from grounds -- Permission to reenter.   Any person ejected from the grounds of an association shall be denied admission to said grounds until permission ((for this reentering)) to reenter has been obtained ((and approved by)) from the commission, or its designee.

[Rules of racing, 382, filed 4/21/61.]


NEW SECTION
WAC 260-84-090   Medication and prohibited substances -- Penalties -- Guidelines.   Upon a finding of a violation of the medication and prohibited substances rules in chapter 260-70 WAC, the stewards shall consider the classification level of the medication, drug or substance as established in WAC 260-70-680 prior to imposing a penalty. The stewards shall also consult with an official veterinarian to determine the nature and seriousness of the laboratory finding or the medication violation and whether the violation was a result of the administration of a therapeutic medication as documented in a veterinarian's report received per WAC 260-70-540. A lesser penalty than that established in WAC 260-84-110 may be imposed if a majority of the stewards determine that mitigating circumstances warrant a lesser penalty. If a majority of the stewards determine a greater penalty is appropriate or that a penalty in excess of the authority granted them is appropriate, they may impose the maximum penalty authorized and refer the matter to the commission with specific recommendations for further action. In determining if there are mitigating circumstances surrounding a medication violation for substances referred to in chapter 260-70 WAC, at least the following shall be considered:

(1) The past record of the trainer and/or veterinarian in medication/drug cases;

(2) The potential of the medication/drug to influence a horse's racing performance;

(3) The availability of the medication/drug;

(4) Whether there is reason to believe the responsible party knew of the administration of the medication/drug used;

(5) The steps taken by the trainer to safeguard the horse;

(6) The probability of environmental contamination or inadvertent exposure due to human drug use;

(7) The purse of the race;

(8) Whether the medication found was one for which the horse was receiving a treatment as determined by the veterinarian report(s);

(9) Whether there was any suspicious betting pattern in the race; and

(10) Whether the presence of the medication/drug in urine was confirmed in serum or plasma.

[]


NEW SECTION
WAC 260-84-100   Furosemide penalties.   Penalties shall be assessed against any person found to be responsible or party to the improper administration of furosemide or failure to administer furosemide when required, in chapter 260-70 WAC as follows:

(1) For persons found to be responsible or party to the improper administration of furosemide:

(a) For a first offense - One to three day suspension and $250 fine and possible loss of purse.

(b) For a second offense - Three to fifteen day suspension and $500 fine and possible loss of purse.

(c) For a third offense - Fifteen to thirty day suspension, $750 fine and possible loss of purse.

(d) For a fourth offense - Thirty to sixty day suspension, $1000 fine and possible loss of purse.

(e) For a fifth or subsequent offense - One year suspension and mandatory referral to the commission, $2500 fine and possible loss of purse.

(2) For persons found to be responsible for failure to administer furosemide in a horse required to run on furosemide or a horse that has been administered furosemide that does not show a detectable concentration of the drug in the post-race serum or plasma, as required in WAC 260-70-660:

(a) For a first offense - One to three day suspension and $250 fine and possible loss of purse.

(b) For a second offense - Three to fifteen day suspension and $500 fine and possible loss of purse.

(c) For a third offense - Fifteen to thirty day suspension, $750 fine and possible loss of purse.

(d) For a fourth offense - Thirty to sixty day suspension, $1000 fine and possible loss of purse.

(e) For a fifth or subsequent offense - One year suspension and mandatory referral to the commission, $2500 fine and possible loss of purse.

(3) Equine medication violations from Washington in all recognized racing jurisdictions, shall be considered when assessing penalties.

[]


NEW SECTION
WAC 260-84-110   Penalties for uniform classifications.   Penalties shall be assessed against any person found to be responsible or party to the improper administration of a drug or the intentional administration of a drug resulting in a positive test. In assessing penalties under this section, violations from Washington and all recognized racing jurisdictions shall be considered.

(1) Class 1 - One to five year suspension and at least $5,000 fine and loss of purse.

(2) Class 2 - Six months to one year suspension and $1,500 to $2,500 fine and loss of purse.

(3) Class 3 - Sixty days to six months suspension and up to $1,500 fine and loss of purse.

(4) Class 4 - Fifteen to sixty days suspension and up to $1,000 fine and loss of purse.

(5) Class 5 - Warning to fifteen days suspension with a possible loss of purse and/or fine.

[]


NEW SECTION
WAC 260-84-120   Penalties relating to permitted medication.   (1) Should the laboratory analysis of serum or plasma taken from a horse show the presence of more than one approved nonsteroidal anti-inflammatory drug (NSAID) in violation of these rules or the presence of phenylbutazone in excess of the quantities authorized by the rules, the following penalties shall be assessed:

(a) For a first offense a fine of $300;

(b) For a second offense a fine of $750;

(c) For a third offense a fine of $1,000 with a fifteen to sixty day suspension.

(2) Should the laboratory analysis of serum or plasma taken from a horse show the presence of phenylbutazone in excess of the quantities authorized by this rule, the following penalties shall be assessed:


Concentration 1st Offense 2nd Offense 3rd and Subsequent Offenses
> 5.0 but < 6.5 mcg/ml Warning Fine not to exceed $300 Fine not to exceed $500
≥ 6.5 but < 10.0 mcg/ml Warning - $300 Fine not to exceed $500 Fine not to exceed $1000
≥ 10.0 mcg/ml Fine not to exceed $500 Fine not to exceed $1000 Fine not to exceed $2500 and possible suspension

(3) Detection of any unreported permitted medication, drug, or substance by the primary testing laboratory may be grounds for disciplinary action.

(4) As reported by the primary testing laboratory, failure of any test sample to show the presence of permitted medication, drug or substance when such permitted medication, drug or substance was required to be administered may be grounds for disciplinary action.

(5) In assessing penalties for equine medication, violations from Washington and all recognized racing jurisdictions shall be considered.

[]


NEW SECTION
WAC 260-84-130   Penalties for prohibited practices.   For a person found to be responsible for or party to violation of WAC 260-70-545, including the treating veterinarian, the following penalties shall be assessed:

(1) For violations of WAC 260-70-545, except WAC 260-70-545 (4)(b);

(a) For first offense - Thirty day suspension and $1,000 fine;

(b) For second offense - Sixty day suspension and $2,000 fine;

(c) For third offense - One year suspension, $2,500 fine and a mandatory referral to the commission.

(2) For violations of WAC 260-70-545 (4)(b), the person found to be responsible for or party to the violation, including the treating veterinarian shall be suspended for one year, shall pay a $2,500 fine and there shall be a mandatory referral to the commission.

[]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 260-84-010 Who may impose.
WAC 260-84-020 Report to commission.
WAC 260-84-030 Fines -- When due.

Washington State Code Reviser's Office