Original Notice.

     Preproposal statement of inquiry was filed as WSR 05-23-024.

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

     Hearing Location(s): Auburn City Council Chambers, 25 West Main, Auburn, WA 98001, on March 9, 2006, at 9:30 a.m.

     Date of Intended Adoption: March 9, 2006.

     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 6, 2006.

     Assistance for Persons with Disabilities: Contact Patty Sorby by March 9, 2006, TTY (360) 459-6462.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposal is to: (1) Remove errors in the existing language of WAC 260-84-060; (2) remove the human drug and alcohol penalties from WAC 260-84-060 and move them to new WAC 260-84-065 Licensees -- Drug and alcohol penalties; and (3) make minor format changes to WAC 260-84-090 and add two subsection to this rule. The first would allow the stewards to impose the maximum penalty if the stewards determine a greater penalty is appropriate and refer the matter to the commission. The second authorizes the stewards to set a penalty for a violation of chapter 260-70 WAC if a penalty has not otherwise been determined.

     Reasons Supporting Proposal: Removes errors and clarifies the intend [intent] to the commission regarding penalties for equine medication violations.

     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.

January 18, 2006

R. M. Leichner

Executive Secretary

OTS-8588.1

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

WAC 260-84-060   Penalty matrixes.   (1) The imposition of reprimands, fines and suspensions shall 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	$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 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) ((to resolve)) or suspension
Failure to appear - ((hearing)) for ruling conference 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 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	$50	$100	$100
Arriving late to the paddock WAC 260-28-200	Warning to $50	Warning to $50	$50 to $100
Failure to have registration papers on file - resulting in a scratch WAC 260-40-090	$50 to $100	$100	$100
Failure to ((handle business properly - late equipment change, etc.)) obtain permission for equipment changes WAC 260-44-010	Warning to $50	$100	$100
Failure to report ((the correct name of a horse working)) performance records WAC 260-40-100	Warning to $50	$100	$150
Insufficient workouts - resulting in scratch WAC 260-40-100	$50 to $100	$100	$100

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 (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 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(( - hearing)) for ruling conference 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 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	$50	$50
Arriving late to the paddock WAC 260-28-200	Warning to $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.)) obtain permission for equipment changes WAC 260-44-010	Warning to $50	$50	$50

Class A, B (()) and C Licensed Facilities
	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))
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	Warning to $50	$100	$200
Issuing a check to the commission with not sufficient funds WAC 260-28-030	$25	$50	$100
Failure to follow instructions of the outrider WAC ((260-12-690)) 260-24-690	$50	$100	$200
Failure to complete provisional license application within fourteen days WAC 260-36-200	Warning to $100 and denial of license	$250 and denial of license	$500 and denial of license
Failure to pay or default on L&I payment WAC ((260-28-220)) 260-28-235	Suspension until paid plus $25 for each quarter payment is late
Failure to ((maintain employee L&I records for grooms and assistant trainers)) 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

     (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. If a penalty is not listed under second or third/subsequent offense columns, the penalty listed in the "first offense" column shall apply to each violation.

     (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)) 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 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.

[Statutory Authority: RCW 67.16.020 and 67.16.040. 05-07-064, § 260-84-060, filed 3/11/05, effective 4/11/05; Rules of racing, § 381, filed 4/21/61.]

     (2) Use or possession of an illegal controlled substance, other than marijuana.

     (a) First offense - thirty-day suspension; and

     (b) Second offense - one-year suspension and referral to the commission for revocation.

     (3) Possession or use of marijuana.

     (a) First offense - three-day suspension;

     (b) Second offense - thirty-day suspension; and

     (c) Third or subsequent offenses - one-year suspension and referral to commission for revocation.

     (4) Performing duties while impaired by alcohol and/or drugs prescribed by a physician.

     (a) First offense - warning to one-day suspension;

     (b) Second offense - three-day suspension;

     (c) Third offense - thirty-day suspension; and

     (d) Subsequent offenses - one-year suspension and referral to commission for revocation.

     (5) Refusal to submit to a drug or alcohol test, one-year suspension plus referral to commission for revocation.

     (6) Possession of any equipment or material used to manufacture or distribute any drug or controlled substance, or engaging in the sale, manufacturing or distribution of any drug or controlled substance on the grounds, immediate ejection from the grounds and referral to the commission for revocation.

     (7)(a) For violations of WAC 260-34-020 (1), (2), and (4), the board of stewards may stay a suspension if the licensee or applicant shows proof of participation in a drug rehabilitation or alcohol treatment program approved or certified by the department of social and health services. Individuals will only be allowed a stay of a suspension under this subsection once in a five-year period. If during this time a licensee or applicant violates the provisions of this chapter, the violation for which the stay of suspension was entered will be considered as a prior violation for penalty purposes. Before being granted a stay of the suspension, the licensee or applicant must also agree to the following conditions:

     (i) Remain in compliance with the rehabilitation and/or treatment program.

     (ii) Submit to random drug or alcohol testing at the discretion of the board of stewards or commission security investigators for a period of five years.

     (iii) Have no further incidents of violating this chapter within the next twelve calendar months.

     (b) If the board of stewards, after a conference, finds that the licensee or applicant failed to comply with the conditions of the stay, the original suspension may be imposed. Failure to remain in compliance with the rehabilitation and/or treatment program shall be considered a failure to comply with the conditions of the stay.

     (c) Upon successful completion of a drug or alcohol rehabilitation or treatment program, a licensee or applicant can request the board of stewards lift the suspension.

[]

     (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 be considered:

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

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

     (((3))) (c) The availability of the medication/drug;

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

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

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

     (((7))) (g) The purse of the race;

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

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

     (((10))) (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 be determined by the board of stewards.

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