ENROLLED
H. B. 2989
(By Delegates Doyle, Swartzmiller, Ferns, Storch,
Guthrie and Morgan)
[Passed March 9, 2011; in effect ninety days from passage.]
AN ACT to
amend and reenact §19-23-16 of the Code of West Virginia,
1931, as amended, relating to addressing appeals from
decisions of stewards or judges generally; adding references
to suspensions or revocations made by judges; providing a
process for seeking a stay pending appeal and authority for
granting such a request; providing that hearing examiners
appointed by the Racing Commission may hear appeals; creating
requirements for hearing examiner recommended decision; and
providing options for the Racing Commission following a
hearing examiner recommended decision.
Be it enacted by the Legislature of West Virginia:
That §19-23-16 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 23. HORSE AND DOG RACING.
§19-23-16. Entry of order suspending or revoking license or
permit; service of order; contents; hearing;
decision to be in writing.
(a) Whenever the Racing Commission shall deny an application for a license or a permit or shall suspend or revoke a license or
a permit, it shall make and enter an order to that effect and serve
a copy thereof on the applicant, licensee or permit holder, as the
case may be, in any manner in which a summons may be served in a
civil action or by certified mail, return receipt requested. Such
order shall state the grounds for the action taken, and, in the
case of an order of suspension or revocation, shall state the
effective date of such suspension or revocation.
(b) Whenever a majority of the stewards or judges at any horse
or dog race meeting shall suspend or revoke a permit, such
suspension or revocation shall be effective immediately. The
stewards or judges shall, as soon as thereafter practicable, make
and enter an order to that effect and serve a copy thereof on the
permit holder, in any manner in which a summons may be served in a
civil action or by certified mail, return receipt requested. Such
order shall state the grounds for the action taken.
(c) Any person adversely affected by any such order shall be
entitled to a hearing thereon if, within twenty days after service
of a copy thereof if served in any manner in which a summons may be
served as aforesaid or within twenty days after receipt of a copy
thereof if served by certified mail as aforesaid, such person files
with the Racing Commission a written demand for such hearing. A
demand for hearing shall operate automatically to stay or suspend
the execution of any order suspending or revoking a license, but a
demand for hearing shall not operate automatically to stay or
suspend the execution of any order suspending or revoking a permit. Upon the written request of any permit holder who has been
adversely affected by an order of the stewards or judges, a stay
may be granted by the Racing Commission, its chairman, or by a
member of the commission designated by the chairman. A request for
a stay must be filed with the Racing Commission's executive
director no later than the deadline for filing a written demand for
a hearing before the commission. If a stay is granted, it is not
a presumption that the order of the stewards or judges is invalid.
The Racing Commission may require the person demanding a hearing to
give reasonable security for the costs thereof and if such person
does not substantially prevail at such hearing such costs shall be
assessed against such person and may be collected by an action at
law or other proper remedy.
(d) Upon receipt of a written demand for such hearing, the
Racing Commission shall set a time and place therefor not less than
ten and not more than thirty days thereafter. Any hearing may be
continued by the Racing Commission or its appointed hearing
examiner
for good cause shown.
(e) All of the pertinent provisions of article five, chapter
twenty-nine-a of this code shall apply to and govern the hearing
and the administrative procedures in connection with and following
such hearing, with like effect as if the provisions of said article
five were set forth in this subsection.
(f) Any such hearing shall be conducted by a quorum of the
Racing Commission
or by a hearing examiner appointed by the Racing
Commission who is licensed to practice law in the State of West Virginia. For the purpose of conducting any such hearing, any
member of the Racing Commission
or its appointed hearing examiner
has the power and authority to issue subpoenas and subpoenas duces
tecum as provided in section six of this article. Any such
subpoenas and subpoenas duces tecum shall be issued and served
within the time, for the fees and shall be enforced, as specified
in section one, article five of said chapter twenty- nine-a, and
all of the said section one provisions dealing with subpoenas and
subpoenas duces tecum shall apply to subpoenas and subpoenas duces
tecum issued for the purpose of a hearing hereunder.
(g) At any such hearing the person who demanded the same may
represent such person's own interests or be represented by an
attorney-at-law admitted to practice before any circuit court of
this state. Upon request by the Racing Commission, it shall be
represented at any such hearing by the Attorney General or his or
her assistants without additional compensation. The Racing
Commission, with the written approval of the Attorney General, may
employ special counsel to represent the Racing Commission at any
such hearing.
(h) After any such hearing and consideration of all of the
testimony, evidence and record in the case, the Racing Commission
shall render its decision in writing. The written decision of the
Racing Commission shall be accompanied by findings of fact and
conclusions of law as specified in section three, article five,
chapter twenty-nine-a of this code, and a copy of such decision and
accompanying findings and conclusions shall be served by certified mail, return receipt requested, upon the person demanding such
hearing, and his or her attorney of record, if any.
If a hearing is
conducted by a hearing examiner appointed by the Racing Commission,
he or she shall prepare a written recommended decision for the
commission's consideration. The Racing Commission, in its
discretion, may accept the recommendation in its entirety, modify
it, or reject it. If the Racing Commission modifies or rejects a
recommended decision of an appointed hearing examiner, either in
whole or in part, it shall issue a reasoned, articulate explanation
and a recitation of the underlying evidence or other matters upon
which it bases its decision, including findings of fact and
conclusions of law.
(i) The decision of the Racing Commission shall be final
unless reversed, vacated or modified upon judicial review thereof
in accordance with the provisions of section seventeen of this
article.