WSR 03-02-016

PROPOSED RULES

HORSE RACING COMMISSION


[ Filed December 20, 2002, 4:00 p.m. ]

Original Notice.

Exempt from preproposal statement of inquiry under WSR 02-22-022.

Title of Rule: WAC 260-34-090 Positive test.

Purpose: To amend WAC on marijuana testing to coincide with the level of commission testing cups and the private testing facilities.

Statutory Authority for Adoption: RCW 67.16.020.

Summary: Change the level of a positive test for marijuana from 100 to 50 nanograms per milliliter.

Name of Agency Personnel Responsible for Drafting: Robert Lopez, Olympia, Washington, (360) 459-6462; Implementation and Enforcement: Robert Leichner, Olympia, Washington, (360) 459-6462.

Name of Proponent: Washington Horse Racing Commission, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: By reducting [reducing] the level for a reported positive test for marijuana this will coincide with the level of our test cups and the standard used by our private testing facilities.

Proposal Changes the Following Existing Rules: Changes the level from 100 to 50 nanograms per milliliter before a sample is reported as a positive for the presence of marijuana.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The changes will not impose any costs upon businesses in the horse racing industry.

RCW 34.05.328 does not apply to this rule adoption. The rule is not subject to this section under RCW 34.05.328 (5)(a).

Hearing Location: Auburn City Council Chambers, 25 West Main, Auburn, WA 98001, (253) 931-3041, on February 13, 2003, at 1:00 p.m.

Submit Written Comments to: Robert Leichner, Executive Secretary, Washington Horse Racing Commission, 6326 Martin Way, Suite 209, Olympia, WA 98516, fax (360) 459-6461, by February 12, 2003.

Date of Intended Adoption: February 13, 2003.

December 20, 2002

R. M. Leichner

Executive Secretary


AMENDATORY SECTION(Amending WSR 00-07-038, filed 3/16/00 [3/6/00])

WAC 260-34-090   A positive test.   A drug test shall be positive when the presence of a controlled substance is confirmed by two independent tests performed on the same sample supplied by a licensee, employee, or applicant. The tests used will be the E.M.I.T. screen test, followed by a gas chromatography/mass spectrometry confirmatory test, or other tests which the scientific community recognizes are equally or more accurate and reliable. If marijuana or its derivatives, salts, isomers, or salts of isomers are detected in a drug test, such a result will not be reported positive unless found at levels of at least ((one hundred)) fifty nanograms per milliliter.

A positive drug test shall be reported by the laboratory to the presiding steward at the track. On receiving written notice from the laboratory that a specimen has been found positive for a controlled substance, the presiding steward shall initiate the following procedure:

(1) Written notice shall be given to the licensee, employee or applicant, setting a hearing by the board of stewards in accordance with WAC 260-24-440 within the next two racing days or seven calendar days, whichever is less, after service of the notice. The hearing may be held within a shorter or longer period of time if the licensee, employee, or applicant named and the board of stewards agree. Service shall be to the licensee, employee, or applicant personally, by leaving the notice at the person's residence with someone of reasonable age and discretion residing therein, or by mail to the person's last known address. If by mail, service shall be deemed completed on the third day after mailing.

(2) The hearing shall be conducted before the board of stewards pursuant to WAC 260-24-440. At the hearing, the licensee, employee, or applicant shall be provided an opportunity to explain the positive test.

(3) The board of stewards' hearing shall be closed and the facts therein will be kept confidential unless for use with respect to any stewards ruling, order by the horse racing commission or judicial hearing with regard to such facts. Closure of the hearing and confidentiality of the proceedings may be waived by the licensee, employee, or applicant. The board may issue a public ruling which complies with the confidentiality requirements of this section and WAC 260-34-100.

(4) Lacking a satisfactory explanation and documentation or upon the licensee, employee, or applicant agreeing with the test results, the board of stewards shall suspend the licensee, employee, or applicant until:

(a) A negative test can be submitted by that licensee, employee, or applicant and the results reviewed by the board of stewards; and

(b) The licensee, employee, or applicant is referred to an approved agency for a drug evaluation interview and completes the evaluation.

(i) If the evaluation concludes that the licensee, employee, or applicant is not addicted or habituated, and if the board of stewards determines that the licensee's, employee's, or applicant's condition is not detrimental to the best interests of racing, the licensee, employee, or applicant shall be allowed to participate in racing provided he or she agrees that further testing may be done as described in WAC 260-34-030.

(ii) If such drug evaluation concludes that the licensee, employee, or applicant is addicted or habituated, or the board of stewards determines that the licensee's, employee's, or applicant's condition is detrimental to the best interests of racing, the licensee, employee, or applicant shall not be allowed to participate in racing until such time as he or she can produce a negative test result and show official documentation that he or she has successfully completed a certified drug rehabilitation program approved by the board of stewards, in consultation with the executive secretary of the horse racing commission. The licensee, employee, or applicant must agree to further testing as described in WAC 260-34-030.

(5) For a second positive drug test in the calendar year, the licensee, employee, or applicant shall be suspended for the balance of the calendar year or one hundred twenty days, whichever is greater, and the person is required to complete a certified drug rehabilitation program approved by the board of stewards in consultation with the executive secretary of the horse racing commission before applying for a reinstatement of license. The licensee, employee, or applicant must agree to further testing as described in WAC 260-34-030.

(6) When any licensee, employee, or applicant has a history of more than two violations of WAC 260-34-020 or positive drug tests, the horse racing commission may, pursuant to a hearing conducted under chapter 260-08 WAC, declare such person detrimental to the best interests of racing and revoke that person's license or application. Reapplication shall not be permitted for such period of months or years as the commission determines is necessary to ensure the person's freedom from use of controlled substances and not until meeting the requirements of subsection (5) of this section.

[Statutory Authority: RCW 67.16.040. 00-07-038, 260-34-090, filed 3/6/00, effective 4/6/00. Statutory Authority: RCW 67.16.020 and 67.16.040. 89-13-006 (Order 89-02), 260-34-090, filed 6/9/89; 88-09-033 (Order 88-02), 260-34-090, filed 4/15/88.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

Washington State Code Reviser's Office