WSR 08-02-044

PROPOSED RULES

HORSE RACING COMMISSION


[ Filed December 27, 2007, 8:13 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 07-21-086.

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

Hearing Location(s): Auburn City Council Chambers, 25 West Main, Auburn, WA 98002, on February 14, 2008, at 9:30 a.m.

Date of Intended Adoption: February 14, 2008.

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 February 8, 2008.

Assistance for Persons with Disabilities: Contact Patty Sorby by February 8, 2008, TTY (360) 459-6462.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The commission is proposing amending the following sections in chapter 260-84 WAC: (1) WAC 260-84-060 Penalty matrixes, a number of penalties, for first, second, third and subsequent offenses are increasing based upon the current penalty not being a sufficient deterrent. Also, penalties at Class A and B race meets that are the same as penalties at a Class C race meet are being moved under "Class A, B, and C Licensed Facilities." Some of the current penalties are being amended for clarity. Finally, several new violations (with penalties) have been added (e.g., unauthorized late scratch and failure to submit gelding report); (2) WAC 260-84-090 Equine medication and prohibited substances -- Penalties -- Guidelines; (3) WAC 260-84-100 Furosemide penalties; (4) WAC 260-84-120 Penalties for permitted medications, the term "shall" is being replaced by the term "will" or "must." Also, in WAC 260-84-120 the penalty for violations within a 365-day period is clarified; and (5) WAC 260-84-130 Penalties for prohibited practices, includes changes for clarification.

Reasons Supporting Proposal: Purpose is to clarify and streamline the rules in this chapter.

Statutory Authority for Adoption: RCW 67.16.020.

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.

December 21, 2008 [2007]

R. J. Lopez

Deputy Secretary

OTS-1253.1


AMENDATORY SECTION(Amending WSR 07-03-066, filed 1/16/07, effective 2/16/07)

WAC 260-84-060   Penalty matrixes.   (1) The imposition of reprimands, fines and suspensions ((shall)) will be based on the following penalty matrixes:


Class A and B Licensed Facilities
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 to $200 and/or suspension Warning to $500 and/or suspension Suspension
Person performing duties for which they are not licensed WAC 260-36-010 $((50)) 100 $((100)) 200 $((150)) 300
Unlicensed or improperly licensed personnel WAC 260-28-230 $100 $200 $300
((Unlicensed or improperly licensed personnel or failure to report correct stall or registration paper count for LI purposes (trainer's responsibility) WAC 260-28-230 and 260-36-220 Required to pay full labor and industries premium and assessed a fine equal to 50% of the premium due
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 to $50
Licensing - providing false information on application WAC 260-36-120 $50 to $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 to $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 to $50 $100 and recommend racing association revoke vehicle pass
Financial responsibility WAC 260-28-030 Resolve within 30 days or before the end of the meet (whichever is sooner) or suspension
Failure to appear - for ruling conference WAC 260-24-510 Suspension))
Failure of jockey agent to honor riding engagements (call)(( - agents)) WAC 260-32-400 $75 $100 $200
((Reporting incorrect weight - jockeys)) Failure of jockey to report correct weight WAC 260-32-150 $((50)) 100 $((100)) 200 $((200)) 300
Failure of jockey to appear for films(( - jockeys)) WAC 260-24-510 $50 $100 $200
Failure of jockey to fulfill riding engagement WAC 260-32-080 $100 $150 $200
Jockey easing mount without cause WAC 260-52-040 $250 and/or suspension $((250)) 500 and/or suspension $((500)) 1000 and/or suspension
Jockey failing to maintain straight course or careless riding with no disqualification (jockey at fault) WAC 260-52-040 Warning to $750 and/or suspension (riding days)
Jockey failing to maintain straight course or careless riding resulting in a disqualification (jockey at fault) WAC 260-52-040 Suspension (riding days) and possible fine
Jockey's misuse of whip WAC 260-52-040 Warning to $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 260-40-140 and 260-80-030 $((50)) 250 $((100)) 500 $((100)) 1000
Unauthorized late scratch (WAC 260-40-010) $200 $300 $400
Arriving late to the paddock or receiving barn WAC 260-28-200 Warning to $50 ((Warning to)) $50 to $100 (($50 to)) $100 to $200
Failure to deliver furosemide treatment form to official veterinarian by appointed time WAC 260-70-650 Warning to $50 $100 $200
Failure to have registration papers on file - resulting in a scratch WAC 260-40-090 $((50 to $100)) 200 $((100)) 300 $((100)) 400
Failure to obtain permission for equipment changes WAC 260-44-010 ((Warning to)) $50 $100 $((100)) 200
Failure to report performance records WAC 260-40-100 Warning to $50 $100 $150
Failure to submit gelding report WAC 260-28-295 $100 $200 $300
Insufficient workouts - resulting in scratch WAC 260-40-100 $((50 to $100)) 200 $((100)) 300 $((100)) 400

Class C Licensed Facilities
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 to $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 WAC 260-28-230 $50 $100 $200
((Unlicensed or improperly licensed personnel or failure to report correct stall or registration paper count for LI purposes (trainer's responsibility) WAC 260-28-230 and 260-36-220 Required to pay full labor and industries premium and assessed a fine equal to 50% of the premium due
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 to $25
Licensing - providing false information on application WAC 260-36-120 $50 to $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 to $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 to $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 for ruling conference WAC 260-24-510 Suspension))
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 to $750 and/or suspension (riding days)
Jockey's misuse of whip WAC 260-52-040 Warning to $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 260-40-140 and 260-80-030 $((25)) 100 $((50)) 200 $((50)) 300
Unauthorized late scratch WAC 260-40-010 $100 $200 $300
Arriving late to the paddock WAC 260-28-200 Warning to $25 $50 $((50)) 100
Failure to deliver furosemide treatment form WAC 260-70-650 Warning to $25 $50 $100
Failure to have registration papers on file - resulting in a scratch WAC 260-40-090 $50 $100 $100
Failure to submit gelding report WAC 260-28-295 $50 $100 $200
Failure to obtain permission for equipment changes WAC 260-44-010 ((Warning to $50)) $25 $50 $((50)) 100

Class A, B and C Licensed Facilities
1st Offense 2nd Offense 3rd Offense or subsequent offense
Smoking in restricted areas WAC 260-20-030 $50 $100 $250 and/or suspension
Tampering with a fire protection, prevention or suppression system or device WAC 260-20-030 $((50)) 200 $((100)) 500 $((250 plus possible)) 1000 and/or suspension
Failure to post problem gambling signs WAC 260-12-250 Warning to $50 $100 $200
Issuing a check to the commission with not sufficient funds WAC 260-28-030 $((25)) 50 $((50)) 100 $((100)) 200
Failure to follow instructions of the outrider WAC 260-24-690 $50 $100 $200
Use of improper, profane, or indecent language WAC 260-80-130 $200 $300 $500
Failure to complete provisional license application within fourteen days WAC 260-36-200 ((Warning to)) $100 and ((denial)) suspension of license $250 and ((denial)) suspension of license $500 and ((denial)) suspension of license
Failure to register employees with the commission (trainers responsibility) WAC 260-28-230 Warning to $50 $100 $200
Failure to furnish fingerprints WAC 260-36-100 $100 and suspension of license $250 and suspension of license $500 and suspension of license
Nonparticipation - licensing WAC 260-36-080 License canceled
False application WAC 260-36-100 and 260-36-120 $50 to $250 and/or possible denial, suspension or revocation of license
Failure to divulge a misdemeanor or gross misdemeanor WAC 260-36-120 Warning to $100
Failure to divulge a felony WAC 260-36-120 $100 to $250 and/or denial, suspension, or revocation of license
Failure to provide full disclosure, refusal to respond to questions, or responding falsely to stewards or commission investigators WAC 260-24-510 $500 fine and/or denial, suspension or revocation of license
Failure to pay proper industrial insurance premium(s) chapter 260-220 WAC and WAC 260-36-230 In addition to being required to pay the full industrial insurance premium, the trainer will be assessed a fine equal to fifty percent of the premium due
Failure to pay ((or default on)) L&I payment agreement WAC 260-28-235 ((Per LI premium payment agreement,)) Immediate suspension until premium paid ((plus $25)) and $50 fine for each quarter payment is late
Failure to register employees with the commission (trainer's responsibility) WAC 260-28-230 Warning to $50
Unlicensed person on the backside WAC 260-20-040 ((and 260-20-090)) Report violation to the racing association
Financial responsibility WAC 260-28-030 Resolution with mutual agreement between the parties - failure to comply with the agreement will result in immediate suspension
Failure to appear for a ruling conference WAC 260-24-510 Suspension (conference may be held in individual's absence)
Failure to pay fine within 7 days of ruling conference (no extension granted or no request for hearing filed) WAC 260-24-510 Suspension until fine paid
Possession or use of a 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 1 year suspension plus mandatory referral to commission for revocation
Failure to wear proper safety equipment WAC 260-12-180 $50 $100 $200
Horses shod with improper toe grabs WAC 260-44-150 Horse scratched and $250 fine to trainer and plater Horse scratched and $500 fine to trainer and plater Horse scratched and $1000 fine to trainer and plater
Failure to display or possess license badge when in restricted area WAC 260-36-110 $25 $50 $100

(2) In determining whether an offense is a first, second, third or subsequent offense, the commission, or designee ((shall)) will include violations((,)) which occurred in Washington as well as any other recognized racing jurisdiction. If a penalty is not listed under second or third/subsequent offense columns, the penalty listed in the "first offense" column ((shall)) will apply to each violation.

(3) Except as otherwise provided in this chapter, for any other violation not specifically listed above, the stewards have discretion to impose the penalties as provided in WAC 260-24-510 (3)(a). 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, or revocation.

(4) Circumstances which may be considered for the purpose of mitigation or aggravation of any penalty ((shall)) will 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 these 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)) will 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)) will not preclude commission action in any matter. A stewards' ruling ((shall)) will not prevent the commission from imposing a more severe penalty.

[Statutory Authority: RCW 67.16.020. 07-03-066, 260-84-060, filed 1/16/07, effective 2/16/07. Statutory Authority: RCW 67.16.020 and 67.16.040. 06-07-058, 260-84-060, filed 3/10/06, effective 4/10/06; 05-07-064, 260-84-060, filed 3/11/05, effective 4/11/05. Rules of racing, 381, filed 4/21/61.]


AMENDATORY SECTION(Amending WSR 06-07-058, filed 3/10/06, effective 4/10/06)

WAC 260-84-090   Equine medication and prohibited substances -- Penalties -- Guidelines.   (1) Upon a finding of a violation of the medication and prohibited substances rules in chapter 260-70 WAC, the stewards ((shall)) will consider the classification level of the medication, drug or substance prior to imposing a penalty. The stewards ((shall)) will 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.

(2) 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)) will be considered:

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

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

(c) The availability of the medication/drug;

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

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

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

(g) The purse of the race;

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

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

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

(3) If a majority of the stewards determine a penalty greater than established in these rules is appropriate, they may impose the maximum penalty authorized and refer the matter to the commission with specific recommendations for further action.

(4) If the penalty is not otherwise established for a violation of chapter 260-70 WAC, the penalty ((shall)) will be determined by the board of stewards.

[Statutory Authority: RCW 67.16.020 and 67.16.040. 06-07-058, 260-84-090, filed 3/10/06, effective 4/10/06; 05-07-064, 260-84-090, filed 3/11/05, effective 4/11/05.]


AMENDATORY SECTION(Amending WSR 05-07-064, filed 3/11/05, effective 4/11/05)

WAC 260-84-100   Furosemide penalties.   (1) Penalties ((shall)) will 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:

Fine not to exceed three hundred dollars. Multiple violations by an individual within a three hundred sixty-five day period may be referred to the commission for further action, which may include an additional fine or suspension.

(2) Equine medication violations from Washington and all recognized racing jurisdictions, ((shall)) will be considered when assessing penalties.

[Statutory Authority: RCW 67.16.020 and 67.16.040. 05-07-064, 260-84-100, filed 3/11/05, effective 4/11/05.]


AMENDATORY SECTION(Amending WSR 05-07-064, filed 3/11/05, effective 4/11/05)

WAC 260-84-110   Penalties for uniform classifications.   (1) Penalties ((shall)) will 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 in the last three hundred sixty-five days from Washington and all recognized racing jurisdictions ((shall)) must be considered.

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

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

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

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

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

(2) A lesser penalty may be imposed if a majority of the stewards determine that mitigating circumstances, as outlined in WAC ((260-70-090)) 260-84-090 exist.

[Statutory Authority: RCW 67.16.020 and 67.16.040. 05-07-064, 260-84-110, filed 3/11/05, effective 4/11/05.]


AMENDATORY SECTION(Amending WSR 05-07-064, filed 3/11/05, effective 4/11/05)

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 the following penalties ((shall)) will be assessed:

(a) For a first offense within a three hundred sixty-five day period - Fine not to exceed $300;

(b) For a second offense within a three hundred sixty-five day period - Fine not to exceed $750;

(c) For a third offense within a three hundred sixty-five day period - Fine not to exceed $1,000.

(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)) will be assessed:


Concentration 1st offense within

365 days

2nd offense within

365 days

3rd and subsequent offenses within 365 days
> 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 Fine not to exceed $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 a permitted medication, drug or substance when such permitted medication, drug or substance was required to be administered may be grounds for disciplinary action, which may include a fine not to exceed three hundred dollars. Multiple violations by an individual within a three hundred sixty-five day period may be referred to the commission for further action, which may include an additional fine and/or suspension or revocation.

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

[Statutory Authority: RCW 67.16.020 and 67.16.040. 05-07-064, 260-84-120, filed 3/11/05, effective 4/11/05.]


AMENDATORY SECTION(Amending WSR 05-07-064, filed 3/11/05, effective 4/11/05)

WAC 260-84-130   Penalties for prohibited practices.   For a person or persons found to be responsible for ((or party to)) violation of WAC 260-70-545, including the treating veterinarian, the following penalties ((shall)) will 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 or persons found to be responsible for ((or party to)) the violation, including the treating veterinarian ((shall)) will be suspended for one year, ((shall)) pay a $2,500 fine and ((there shall be a mandatory referral)) referred to the commission.

[Statutory Authority: RCW 67.16.020 and 67.16.040. 05-07-064, 260-84-130, filed 3/11/05, effective 4/11/05.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 260-84-050 Suspensions -- Computation of time.
WAC 260-84-070 Ejectment from grounds -- Permission to reenter.

Washington State Code Reviser's Office