Original Notice.

     Preproposal statement of inquiry was filed as WSR 06-05-023.

     Title of Rule and Other Identifying Information: TITLE 260 WAC to expand the role and authority of the executive secretary.

     Hearing Location(s): Auburn City Council Chambers, 25 West Main, Auburn, WA 98002, on March 13, 2008, at 9:30 a.m.

     Date of Intended Adoption: March 13, 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 March 7, 2008.

     Assistance for Persons with Disabilities: Contact Patty Sorby by March 7, 2008, TTY (360) 459-6462.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To amend the following sections in TITLE 260 WAC to expand the role and authority of the executive secretary: WAC 260-08-595 Role of the ((commission and the)) executive secretary, 260-08-675 Hearing before the commission, 260-20-005 General duties of a racing association, 260-34-030 Testing, 260-49-100 Enforcement and penalties, 260-75-020 Satellite locations applications, and 260-75-040 Enforcement and penalties.

     Reasons Supporting Proposal: Expand certain aspects of the authority of the executive secretary to take action without the prior consent of the commission. These amendments still allow any person to challenge a decision of the executive secretary by requesting a hearing before the commission.

     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 22, 2008

R. J. Lopez

Deputy Secretary

OTS-8833.2

AMENDATORY SECTION(Amending WSR 03-03-041, filed 1/10/03, effective 2/10/03)

WAC 260-08-595   Role of the ((commission and the)) executive secretary.   The horse racing commission ((shall)) will appoint an executive secretary who ((shall)) will act as the chief operating officer for the agency. As chief operating officer, the executive secretary ((shall be responsible for the implementation of)) will supervise and administer the activities of the commission staff. In addition, the executive secretary will:

     (1) Implement the policies and ((to)) procedures, and enforce the rules of the commission.

     ((He/she shall also be responsible to carry out)) (2) Oversee the administrative details and ((the)) day-to-day operation of the agency, ((to include)) including the achievement of performance goals and objectives established by the commission and ((to administrate)) administer the agency's budget.

     ((The executive secretary shall also)) (3) Act as the appointing authority for agency staff, ((and as such has)) including the authority ((and responsibility)) to hire, promote, assign work, determine duty stations, evaluate, take corrective action, and, where appropriate terminate staff.

     ((The executive secretary shall also be responsible to)) (4) Make an initial agency determination of a violation of the rules in this title except during live racing where the rule provides that the board of stewards makes the initial agency determination. In the absence of the board of stewards, the executive secretary has the authority to make an initial agency determination.

     (a) If an applicant or licensee disagrees with the decision of the executive secretary, he or she may challenge the decision by requesting a hearing before the commission as provided in WAC 260-08-675.

     (b) The executive secretary may refer any matter directly to the commission for hearing on violations of chapters 67.16 and 67.17 RCW or of rules in this title or to enforce compliance with a penalty.

     (5) Enter into contracts and agreements((,)) on behalf of the commission; and ((to))

     (6) Exercise such other management oversight, decision-making and administrative action ((that are)) necessary to achieve agency mission and goals.

[Statutory Authority: RCW 67.16.020. 03-03-041, § 260-08-595, filed 1/10/03, effective 2/10/03.]

     (1) Requests for a hearing before the commission must be filed with an office of the commission within seven days of service of the stewards' or executive secretary's ruling.

     (2) The request must include: The name, address, telephone number and the signature of the person making the request and a statement of the basis for the challenge to the ruling.

     (3) The commission will conduct an adjudicative proceeding according to the provisions of chapter 34.05 RCW, Administrative Procedure Act, and chapter 260-08 WAC, Practice and procedure.

     (4) ((On notification by the commission that a request for a hearing has been filed, the stewards shall forward to the commission the record of the ruling conference.

     (5))) Any person requesting a hearing before the commission will be heard in person or by counsel. A person appearing before the commission may submit his or her case entirely in writing, provided this is specified at the time of the filing of the request for hearing with the commission and this procedure is given written approval by the commission.

     (((6))) (5) All communications to the commission with respect to a stewards' or executive secretary's ruling must be in writing, and all papers filed with the commission shall be the property of the commission.

[Statutory Authority: RCW 67.16.020 and 67.16.040. 05-05-049, § 260-08-675, filed 2/14/05, effective 3/17/05.]

OTS-1274.1

AMENDATORY SECTION(Amending WSR 07-11-115, filed 5/18/07, effective 6/18/07)

WAC 260-20-005   General duty of a racing association.   A racing association, its officers, directors, officials and employees will abide by and enforce the rules of racing and the orders of the commission and decisions of the executive secretary and stewards. A racing association may request an exemption from a requirement in this chapter to utilize new technology or innovative construction in the design of the racetrack facilities. The commission may grant an exemption if the commission determines that the racing association's proposal substantially satisfies the purpose of the requirement, and the exemption is in the best interests of horse racing.

[Statutory Authority: RCW 67.16.020 and 67.16.040. 07-11-115, § 260-20-005, filed 5/18/07, effective 6/18/07.]

OTS-1275.1

AMENDATORY SECTION(Amending WSR 07-03-064, filed 1/16/07, effective 2/16/07)

WAC 260-34-030   Testing.   (1) A steward of the horse racing commission, a commission security investigator or the ((commission, acting through the)) executive secretary, may require any licensee or applicant to provide breath blood and/or urine samples for the purpose of drug or alcohol analysis under any of the following circumstances:

     (a) When a steward or commission security investigator finds that there is reasonable suspicion to believe that the applicant or licensee has used or is under the influence of alcohol and/or any drug.

     (b) When an applicant or licensee has a documented history of an unexplained positive test which indicates illegal drug usage or has a documented history of violating chapter 69.41, 69.45 or 69.50 RCW, WAC 260-34-020 or similar drug-related violation within five years of conviction or release from a correctional institution for that violation. The term "correctional institution" shall include any prison, jail or similar institution in this state or elsewhere.

     (c) When a steward or commission security investigator decides to test any licensee or applicant as a condition of any conditional or probationary license.

     (d) When any person is riding a horse on the grounds of a licensed racing association.

     (2) For licensees or applicants who are subject to a field screening urine test under the provisions in this chapter, and whose test shows the presence of a controlled substance or alcohol, the field screening test results shall be confirmed by a laboratory acceptable to the commission.

     (3) The result of a test conducted with a preliminary breath test (PBT) instrument approved by the state toxicologist in chapter 448-15 WAC or other breath test equipment approved under chapter 448-16 WAC shall constitute evidence of a violation of these rules. The results of such a test may be considered for purposes of determining whether the licensee or applicant has consumed alcohol, the level of alcohol concentration, and whether the licensee or applicant has violated a prohibition on the use or consumption of alcohol established in a conditional license.

[Statutory Authority: RCW 67.16.020. 07-03-064, § 260-34-030, filed 1/16/07, effective 2/16/07. Statutory Authority: RCW 67.16.020 and 67.16.040. 06-07-064, § 260-34-030, filed 3/10/06, effective 4/10/06; 05-07-066, § 260-34-030, filed 3/11/05, effective 4/11/05. Statutory Authority: RCW 67.16.040. 00-07-038, § 260-34-030, filed 3/6/00, effective 4/6/00. Statutory Authority: RCW 67.16.020 and 67.16.040. 89-13-006 (Order 89-02), § 260-34-030, filed 6/9/89; 88-09-033 (Order 88-02), § 260-34-030, filed 4/15/88.]

OTS-8837.2

AMENDATORY SECTION(Amending WSR 04-21-053, filed 10/18/04, effective 11/18/04)

WAC 260-49-100   Enforcement and penalties.   (1) Any violations of this chapter ((shall)) will be referred to the ((commission)) executive secretary. The ((commission shall have)) executive secretary has sole authority to ensure compliance with these rules, ((conduct hearings)) make initial agency determination on violations, and determine penalties for violations.

     (2) The ((commission)) executive secretary may suspend or revoke a license issued to an advance deposit wagering service provider, withdraw approval of a contract between a class 1 racing association and an advance deposit wagering service provider and/or impose fines, if the licensee:

     (a) Violates any of the requirements of chapter 67.16 RCW or these rules;

     (b) Fails to provide a bond or letter of credit or evidence thereof in another jurisdiction to the satisfaction of the commission;

     (c) Fails to make payments in a timely manner as required by these rules;

     (d) Fails to comply with any conditions on the license imposed by the commission;

     (e) Has demonstrated willful disregard for complying with ordinances, statutes, administrative rules, or court orders, whether at the local, state, or federal level. This includes, but is not limited to, failure to make required payments to other state regulatory agencies;

     (f) Poses a threat to the effective regulation of wagering or creates or increases the likelihood of unfair or illegal practices, methods, and activities in the conduct of wagering activities, as demonstrated through the prior activities, criminal record, reputation, habits, or associations;

     (g) Fails to provide at the office of the commission any information required under the commission's rules within the time required therefore by applicable rule, or if no maximum time has been established respecting the particular kind of information by other rule, then within thirty days after receiving a written request therefore from the commission or its staff;

     (h) Commits, or has committed, any other act that the ((commission)) executive secretary determines constitutes a sufficient reason in the public interest for denying, suspending, or revoking licenses or approval of agreements.

     (3) The ((commission shall)) executive secretary will afford a licensee the opportunity for ((an adjudicative proceeding)) a conference prior to denial, suspending or revoking a license or imposing fines, and shall provide a class 1 racing association and/or an authorized advance deposit wagering service provider a ((hearing)) conference on refusal of approval or withdrawal of approval of the agreement between the association and the service provider.

     (4) The ((commission shall have)) executive secretary has authority to ensure compliance with these regulations, including, but not limited to, injunctive relief and the imposition of fines, suspensions and revocation of license and repayment of outstanding source market fees.

     (5) If the executive secretary imposes a fine, suspension, or revocation of license, the applicant or licensee will be provided an opportunity for a hearing before the commission.

[Statutory Authority: RCW 67.16.020. 04-21-053, § 260-49-100, filed 10/18/04, effective 11/18/04.]

OTS-8838.2

AMENDATORY SECTION(Amending WSR 04-19-045, filed 9/13/04, effective 10/14/04)

WAC 260-75-020   Satellite locations applications.   Each application for a satellite location from a class 1 racing association ((shall)) must be submitted on the satellite application form ((provided by the commission)). The application form must be completed in every respect, containing all the information and attachments requested. The application includes an association satellite application, satellite location application and a satellite location application—personal history statement.

     (1) The association satellite application is to be completed by the sponsoring association.

     (2) The satellite location application is to be completed by the proposed satellite location. The application ((shall)) will be signed under oath by an individual attesting that the information set forth in the application and any accompanying materials is true, accurate and complete. The following person(s) ((shall)) must sign the application:

     (a) The highest ranking officer/official of a charitable, nonprofit or profit seeking corporation;

     (b) The principal owner of a sole proprietorship;

     (c) All partners of a partnership or general partner of a limited partnership; and

     (d) The executive secretary may also require the following persons to sign the application:

     (i) The chairman of the board of directors or trustees;

     (ii) The person in charge of financial records; and/or

     (iii) Persons with a substantial interest in the applicant business or charitable/nonprofit organization.

     (3) The satellite location application—personal history statement is to be completed by each individual owner and spouse or each officer of a charitable, nonprofit or profit seeking corporation and any stockholder having ten percent or more corporate stock.

     (4) The commission will consider only those applications that have been fully completed. The following reasons will cause an application to be incomplete:

     (a) Failure to provide all information requested on the application form and/or attachments;

     (b) Failure to provide supplemental information requested during the application investigation.

     (5) The commission may disclose to the public or discuss at a public meeting all information set forth in the application and all supplemental information submitted subject to the exemptions in chapter ((42.17)) 42.56 RCW and other applicable laws including, but not limited to, chapter 10.97 RCW: Provided, That consistent with chapter 10.97 RCW, the commission may disclose conviction data of an applicant or licensee.

     (6) In addition to other information required by the ((commission)) executive secretary, each applicant ((shall)) will provide the following information on or attached to the application:

     (a) Copy of corporate applicants' articles of incorporation and bylaws; or, if not a corporation, a copy of any bylaws and other documents which set out the organizational structure and purposes of the organization;

     (b) A copy of a nonprofit or charitable applicant's Internal Revenue Service tax exemption letter if one has been obtained;

     (c) Details and copies of all lease or rental arrangements, whether oral or written, between the applicant and the owner of premises upon which the satellite activity will be conducted, if such premises are leased or rented.

     (7) Before each race meet((, on a form approved by the commission)), the association ((shall)) will submit a list of all satellite locations in their renewal application ((for each satellite location)).

     (8) An association ((shall)) will immediately inform the ((commission immediately)) executive secretary if ((any changes are made to the original application)) ownership or management information provided in the original or renewal application changes.

[Statutory Authority: RCW 67.16.020. 04-19-045, § 260-75-020, filed 9/13/04, effective 10/14/04. Statutory Authority: RCW 67.16.040. 00-07-040, § 260-75-020, filed 3/6/00, effective 4/6/00.]

     (2) The approval to operate a satellite location and/or the license of location managers and mutuel clerks may be suspended or revoked and/or fines may be imposed, if the ((commission)) executive secretary finds violations of any of the requirements of chapter 67.16 RCW or TITLE 260 WAC or failure to comply with any conditions on the operation of the satellite location imposed by the commission.

     (3) ((The commission shall provide an opportunity for an adjudicative proceeding prior to denial, suspension or revocation of approval of a satellite location or of a license, or the imposition of fines, and shall provide a class 1 racing association a hearing on refusal of approval or withdrawal of approval of the agreement between the association and the satellite location.)) If the executive secretary denies, suspends or revokes approval of a satellite location or of a license, or imposes a fine, the applicant or licensee will be provided an opportunity for a hearing before the commission. If the executive secretary makes a determination that an agreement between the association and the satellite location should not be approved, or previous approval withdrawn, the class 1 racing association will be entitled to request a hearing before the commission.

[Statutory Authority: RCW 67.16.020 and 67.16.040. 05-05-042, § 260-75-040, filed 2/14/05, effective 3/17/05.]

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