Subchapter H. RULES OF PRACTICE AND PROCEDURE
GENERAL PROVISIONS Sec.
165.171. Definitions.
165.172. Papers.
165.173. Complaints.
165.174. Suspension or revocation.
165.175. Action without prior hearing.
165.176. Hearing on demand of applicant or licensee.
165.177. Refusal, suspension or revocation of license with prior hearing.
165.178. Appearance.
165.179. Service and filing of papers.
165.180. Continuances.
165.181. Investigation and special procedures.
165.182. Witnesses and subpoenas.
165.183. Commission hearings.
165.184. Decisions.
165.185. Appeals.
165.186. Consolidation or severance.
165.187. Authority of Secretary.
165.188. Construction and amendment of rules.
165.189. Time limit for hearings.
PROCEDURE BEFORE STEWARDS
165.201. General power of stewards.
165.202. Stewards’ jurisdiction.
165.203. Notice required.
165.204. Contents of notice.
165.205. Testimony.
165.206. Hearing.
165.207. Presence of stewards at hearing.
165.208. Duty to testify.
165.209. Votes of stewards.
165.210. Records and minutes of the stewards.
165.211. Stewards’ reference to the Commission.
165.212. Original record.
165.213. Notice of penalty.
165.214. Review and appeal.
165.215. Effective date of decisions.
165.216. Illegal entries.
HEARING RIGHTS
165.231. Hearing rights.§ 165.171. Definitions.
(a) The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Adjudication—A final order, decree, decision, determination or ruling by the Commission affecting the rights, privileges, immunities or obligations of a licensee.
Charge—An allegation in a citation of specific illegal or unethical conduct on the part of a licensee under the provisions of a statute or the rules and regulations promulgated by the Commission.
Citation—A notice of the time and place of a hearing and a formal listing of any specific charges against a licensee.
Commission—The State Horse Racing Commission.
Complaint—A written statement of facts under oath submitted by a person which accuses the licensee of a violation of statute or of the rules and regulations promulgated by the Commission.
Information—Data indicating a violation of statute or of rules and regulations promulgated by the Commission which are collected by or presented to the Commission.
Licensee—A person holding a license issued by the Commission.
Party—The term includes the Commonwealth, the Commission, an applicant who is refused a license, a licensee whose license is suspended or revoked or a person designated in a citation as a respondent.
Person—The term includes an individual or organized group or a character including partnerships, corporations or other forms of association.(b) As used herein, the singular shall denote the plural and the plural, the singular. Words used in one gender or tense shall include all genders and tenses.
Notes of Decisions It was a violation of due process for the Commission to disqualify a horse and order the purse refunded without providing the petitioner with notice and opportunity for a reconsideration hearing. Goldstein v. State Horse Racing Commission, 557 A.2d 1183 (Pa. Cmwlth. 1989).
§ 165.172. Papers.
(a) Original papers pertaining to a proceeding instituted before or appealed to the Commission shall be permanently kept at the executive office of the Commission at Harrisburg, Pennsylvania.
(b) Access to the papers and records shall be governed by 45 P. S. § § 1101—1611, known as the Commonwealth Documents Law.
Source The provisions of this § 165.172 amended April 14, 1978, effective April 15, 1978, 8 Pa.B. 1112.
§ 165.173. Complaints.
(a) Complaints, appeals, affidavits, petitions, motions and other formal papers shall be filed with the Commission at its executive offices in Harrisburg, Pennsylvania.
(b) The same shall be legible and in paragraph form and shall contain all principal allegations of fact and rules or issues of law believed to be relevant. Complaints, appeals, original petitions or similar motions shall be sworn to by the applicant.
Source The provisions of this § 165.173 amended April 14, 1978, effective April 15, 1978, 8 Pa.B. 1112.
Cross References This section cited in 58 Pa. Code § 165.177 (relating to refusal, suspension, or revocation of license with prior hearing).
§ 165.174. Suspension or revocation.
Where a license is to be suspended or revoked, the Commission may either suspend or revoke such license without a prior hearing after which the licensee whose license has been suspended or revoked may upon timely notice demand a hearing thereon in accordance with section 20 of the Horse Racing Act (15 P. S. § 2670) or the Commission may conduct a hearing prior to its making a decision on the issue of suspending or revoking a license.
§ 165.175. Action without prior hearing.
(a) When an application for license is to be refused prior to issuance of a temporary license, the same may be done without prior hearing. Notice of such a decision and of the basis therefor shall be given to the applicant or applicants at his, her, or their last known address.
(b) When a temporary license is to be suspended or revoked after issuance, the same may be done without a prior hearing, provided that the holder or holders is given notice of such decision forthwith and is advised of his, her, or their privilege to demand a hearing before a State Steward within 24 hours by making such a request in writing to the State Steward at the track where the licensee has most recently been employed or has most recently run as of the time of the act complained of.
(c) When the privilege of a permanent license is to be suspended or revoked, the holder shall be notified in the same manner as provided for a temporary license in subsection (b). Such a licensee shall, however, have the privilege to request the alternative of a hearing before the Executive Secretary or a duly designated Commission Hearing Officer within no less than 48 hours following receipt of application therefor in writing filed with the Executive Secretary. Such temporary suspension or revocation may be determined by the Executive Secretary or, at the request of the applicant, by the Commission. If the applicant requests a determination by the Commission, the same may, at the election of the applicant, be based upon completion of a formal transcript of such hearing or upon an informal summary prepared by the Executive Secretary. The same may also, at the election of the applicant, be as a result of either a formal or informal Commission meeting.
(d) No permanent suspension, denial, or revocation of either a temporary or permanent license shall be ordered without granting notice of the privilege of requesting a full formal hearing under the provisions of this subchapter.
(e) All such temporary denials, suspensions, or revocations shall be within the sound reasoned discretion of the State Steward, Executive Secretary of the Commission, and the reasons and basis for any such decision shall be set forth in writing and served upon the applicant(s) in the same manner as final decisions under § 165.184(a) (relating to decisions).
(f) The initial notice of any such refusal, suspension, or revocation shall include sufficient detail as to inform an applicant with reasonable definiteness of the reasons and basis for the action taken. Such notice shall specifically advise the applicant of the appeal and review privileges set forth therein.
(g) In the event any person already holding an occupational license shall cease to actively pursue that occupation for a period in excess of 30 days, such license may be suspended by the Stewards until the holder shall submit satisfactory evidence of a purpose to actively resume his occupation in racing.
Source The provisions of this § 165.175 amended through November 24, 1978, effective November 25, 1978, 8 Pa.B. 3343.
Cross References This section cited in 58 Pa. Code § 165.176 (relating to hearing on demand of applicant or licensee); and 58 Pa. Code § 165.216 (relating to illegal entries).
§ 165.176. Hearing on demand of applicant or licensee.
(a) In the event a hearing is requested under § 165.175 (relating to action without prior hearing) and the decision made does not finally dispose of all privileges claimed, a final hearing shall automatically be scheduled before the Commission.
(b) In the event no hearing is requested on temporary denial, suspension, or revocation, an affected applicant or licensee shall in any event have the privilege of requesting a final hearing before the Commission. Application therefor must be made in writing with the Executive Office of the Commission. Such notice shall set forth a concise statement of all grounds upon which a hearing is requested and shall state that a hearing is demanded not for reasons of delay but because the applicant truly believes an injustice has been done. Such application must be duly sworn to in all respects.
(c) A demand for hearing, in order to be considered timely, must be received in the office of the Commission, Harrisburg, Pennsylvania, no later than the tenth day after the application for a license has been refused or a license has been suspended or revoked. The ten days shall commence on the day that notification of such refusal, suspension, or revocation is served.
(d) The preliminary determination to refuse, suspend, or revoke a license shall remain in full force and effect pending the final determination on the hearing demanded. The Commission may, however, for cause shown and provided that sufficient facts are presented by affidavit to warrant such action, grant a supersedeas until the final determination of the Commission.
(e) The determination to refuse, suspend, or revoke a license shall remain in full force and effect pending the final determination of the hearing demanded. The Commission may however for cause shown and provided that sufficient facts are presented by affidavit to warrant such action, grant a supersedeas until the final determination of the Commission. Applications for a supersedeas must be made in writing, sworn to by the applicant and must set forth pertinent facts showing that the applicant will sustain irreparable harm, that there is no reasonable basis for the ruling or order complained of and showing that the applicant is likely to prevail at the ultimate hearing on the merits. Such applications must be filed in the same manner as complaints. The grant or disallowance of such applications shall be in the reasonable discretion of the Commission or of that officer to whose discretion the application is delegated.
Source The provisions of this § 165.176 amended through October 21, 1977, effective October 22, 1977, 7 Pa.B. 3129.
§ 165.177. Refusal, suspension, or revocation of license with prior hearing.
(a) Upon receipt of a complaint filed under § 165.173 (relating to complaints), or upon any other information the Commission may deem sufficient, an order of notice of a hearing for any possible violations of the provisions of this part or of the Act may be scheduled regarding any licensee.
(b) In the case where a hearing is to be scheduled under any section of this subchapter, such order of notice of hearing shall be served upon the parties at least ten days in advance of the date of the hearing unless the Commission for cause stated shall specify a lesser period, or the respondents shall agree to a lesser period, or another section of this subchapter shall explicitly provide for a hearing upon shorter notice. The order of notice of any hearing shall recite:
(1) The time, place, and nature of the hearing.
(2) The legal authority and jurisdiction under which the hearing is to be held with specific designation of the statutory or regulatory provisions alleged to have been violated.
(3) A clear and concise factual statement sufficient to inform each party with reasonable definiteness of the type of acts or practices alleged to be in violation of the Act or regulations promulgated thereunder. In fixing the times and places for hearings, due regard shall be had for the convenience of the parties and their representatives.
Source The provisions of this § 165.177 amended September 23, 1977, effective September 24, 1977, 7 Pa.B. 2701.
Notes of Decisions Any hearing scheduled by the Commission after petitioner waived his right to notice, under subsection (b), by failing to request a hearing within 10 days of the date of a letter ordering him to divest his stock interest, was gratuitous and fairly conducted. McKenna v. Horse Racing Commission, 476 A.2d 505 (Pa. Cmwlth. 1984).
§ 165.178. Appearance.
(a) Any member of a partnership involved in any proceeding before the Commission may appear on behalf of such partnership. A corporation or association may be represented by any duly authorized agent. Proof of such authority shall be submitted to the Commission upon its request.
(b) Any party may be represented by a member in good standing of the bar of any court of record or such other representative as they may select. Such attorneys or other representative must file written appearances with the Commission.
(c) Any person appearing at any hearing shall be permitted to appear on his or her own behalf or with a representative of their choice. Each person shall be advised of the privilege of representation at the outset of any hearing. Attendance without requesting representation will be deemed a waiver of the privilege.
Source The provisions of this § 165.178 amended April 14, 1978, effective April 15, 1978, 8 Pa.B. 1112.
§ 165.179. Service and filing of papers.
Service of process and papers shall be made as follows:
(1) Place of service. Upon any individual or entity currently licensed by the Commission, at the address or addresses shown upon the most recent license application; upon any party not currently licensed, at the address or addresses shown upon his or her communication or communications to the Commission or if the same is not known, at his or her last known residence or place of business; and upon any partnership herein, at a place of business if not the same be known, or if not known, at the residence of any partner not known to be a limited partner; and upon any corporation herein, at its registered office or principle place of business. All papers, pleadings, or process directed to the Commission must be served or filed at its executive offices in Harrisburg, Pennsylvania.
(2) Manner of service. All original orders, complaints, notices of suspension, ejection, revocation or barring, or similar orders, and all final orders, adjudications, decisions, or decrees shall be served by certified return receipt mail or by personal service. All other papers, pleadings, and process may be served by first-class mail or by personal service. Service may be made upon any adult residing at an addressee’s personal residence or at his, her, or its place or business.
(3) Proof of service. If the fact of service be in issue, the return receipt or postal report of service of any certified letter shall be proof thereof. In all other cases, the Commission or any party may request a duly executed affidavit of service.
(4) Substituted service. When any party appears or has appeared by counsel or other representative, service may be made upon the same for all purposes, unless and until a formal withdrawal of service is executed and filed with the Commission.
(5) Time of service. All appeals, complaints, petitions, and other original process will be deemed filed when received at the Commission Executive Office in Harrisburg, Pennsylvania. All matters served by certified return receipt mail will be deemed served when initially delivered. All other matters will be deemed served upon the date of actual receipt. All briefs and request for argument before the Commission must be received at least 10 days before the scheduled date for adjudication.
(6) Form of papers. All complaints, petitions, answers, requests for continuance, proofs of service, and other similar documents must be over affidavit, typed, printed or written legibly and filed in triplicate with the executive offices of the Commission.
(7) Disputes. Any dispute regarding any acts occurring during the start, running, or finish of any race or the order of finish or purse distribution shall be appealed to the Commission in the manner prescribed in § 165.213 (relating to notice of penalty). Any such appeal must be filed with and received by the Commission no later than 48 hours after the results of the race are declared official by the Stewards. Any disputes regarding the qualifications, entries, weights, or conditions of a race must be similarly appealed within 48 hours of the time set for closing of entries for a race as provided in § 163.481 (relating to review and appeal). Nothing herein shall be deemed to affect or limit the power or right of the Commission to initiate or conduct any later investigation or adjudicative proceeds, upon its own initiative.
Source The provisions of this § 165.179 amended February 17, 1978, effective February 18, 1978, 8 Pa.B. 406.
§ 165.180. Continuances.
(a) All applications for continuance made prior to the hearing shall be in writing, shall set forth the reasons therefor, and shall be filed with the Commission following prior notice to all parties or their attorneys. The Commission may require the party applying for a continuance to substantiate the reasons therefor.
(b) When application is made for continuance because of the illness of a party, witness, or counsel, the Commission shall have the right to a medical certificate attesting to such illness and inability to appear.
(c) An application for continuance of any Commission must be received by the Commission in Harrisburg, Pennsylvania at least 96 hours prior to the time fixed for hearing. Applications received within the 96-hour period may be conditioned as the Commission may deem appropriate upon a satisfactory arrangement for payment of all resulting expenses. Payment of such expenses may be waived for extenuating circumstances.
(d) All continued hearings shall be promptly rescheduled.
(e) It shall be the responsibility of any party securing a continuance to immediately insure that all other parties in interest in the cause at issue are duly notified of the same and to promptly file an affidavit of such timely notice.
(f) In the event any petitioner, respondent or other moving party shall fail to appear at a hearing duly noticed, scheduled, and convened without having secured a prior continuance in accordance with this chapter: such party may by virtue of such default have his license suspended forthwith. Upon application by the party in default and the posting of a bond or other acceptable security, the Commission will lift the suspension pending the outcome of the hearing. Should the party in default wish not to post acceptable security he may request that the Commission continue the suspension until such time as the matter is heard. Acceptable security shall be defined as a bond, cashier’s check or treasurer’s check, certified check, or other instrument which guarantees the availability of funds to cover security. Should the party fail to appear for the second hearing, the acceptable security shall be forfeited. The amount of the acceptable security shall be between zero and $500, at the discretion of the Commission. If such party does appear at the second hearing, the Commission may use the security funds, in whole or in part, to reimburse itself for the expenses necessitated by this subsequent hearing—whether for the payment of witnesses, stenographer, hearing officer, or otherwise. The Commission may return the balance of the fund or the entire fund to the provider of the fund, as the Commission deems appropriate.
Authority The provisions of this § 165.180 issued under the Race Horse Industry Reform Act (4 P. S. § § 325.101—325.402).
Source The provisions of this § 165.180 amended through June 18, 1982, effective June 19, 1982, 12 Pa.B. 1872. Immediately preceding text appears at serial page (60193).
§ 165.181. Investigation and special procedures.
(a) The Commission shall have the right at any time to convene and conduct such investigatory hearings as it may deem necessary and appropriate to the proper administration of the Act or of the provisions of this part. All other rules set forth herein shall apply to such hearings, provided, however, that notices of investigatory hearings need not specify which, if any, rules are believed to have been violated. Such notice shall, however, set forth the general scope of the inquiry to be conducted.
(b) The Commission shall also have the right to supersede the proceedings of any Board of Stewards under its jurisdiction at any time either upon its own motion or upon request of a Board of Stewards. Such superseding may be upon an interim or final basis and the Commission may make a partial adjudication and refer the remaining issues back to the Board of Stewards or may assume full and complete jurisdiction for all further purposes as it alone may deem appropriate and necessary.
(c) No process, requirement of a report, inspection, or other investigative act or demand shall be issued, made, or enforced in any manner or for any purpose except as authorized by law. Every person compelled to submit data or evidence shall be entitled to retain, or procure, on payment of lawfully prescribed cost, a copy or transcript thereof.
Source The provisions of this § 165.181 amended September 16, 1977, effective September 17, 1977, 7 Pa.B. 2651.
Cross References This section cited in 58 Pa. Code § 163.271 (relating to claimant of horse in dispute).
§ 165.182. Witnesses and subpoenas.
(a) Witnesses shall be examined under oath or affirmation and a record of the proceeding made and kept by the Commission. If any witness or party resides outside the Commonwealth, or through illness or other cause is unable to testify before the Commission his or her testimony may be taken within or without this Commonwealth as prescribed by the Commission.
(b) Commission subpoenas shall be issued in blank over the seal of the Commission to any party, upon request. Each party shall be responsible for his or her own subpoenas and upon request, shall file a certificate of service over oath.
(c) Witness and mileage fees shall be paid by the party at whose instance the witnesses are called.
Source The provisions of this § 165.182 amended April 14, 1978, effective April 15, 1978, 8 Pa.B. 1112.
§ 165.183. Commission hearings.
(a) The Commission may, by written order, designate one or more Commission members, or its hearing officer to take testimony and conduct hearings under this section.
(b) The functions of the Commission member, officer or agent participating in hearings shall be conducted in an impartial manner. The Commission will have the right to engage the services of law trained hearing officers whose duties and functions will be limited to presiding at hearings held in the absence of the Commission itself and to ruling upon procedural and evidentiary matters that may come before the hearings. A person presiding at a hearing may not consult a party on any fact in issue unless upon notice and opportunity for all parties to participate. A person so presiding may at any time withdraw from the proceeding if he deems himself disqualified. A person so withdrawing or who without withdrawing holds or has an interest in or has cause to believe he may have any bias or prejudice in a matter then before the Commission shall promptly file an affidavit setting forth relevant facts as to the interest, bias or prejudice before the termination of the hearing and the Commission will determine the matter as a part of the record and decision in the case. In the event of a withdrawal or disqualification, another member, officer or agent designated by the Commission shall have the authority to complete the hearing. Only the members of the Commission will have the right to make decisions on those matters referred to them.
(c) Officers presiding at hearings shall have authority to administer oaths and affirmations, issue subpoenas authorized by law, rule upon offers of proof or issues of procedure and otherwise regulate the course of hearings.
(d) A decision shall be made and an adjudication issued thereon solely on the basis of evidence introduced at the hearing.
(e) Proponents of any issue shall have the burden of proof thereof.
(f) Technical rules of evidence may not apply in hearings held under this part. A relevant evidence may be received in either oral or documentary form, provided, that the Commission or a hearing officer acting hereunder may exclude irrelevant, immaterial or repetitious evi-dence. Tape recordings of stewards’ and hearing officers’ hearings as well as of investigative hearings or depositions may be received in evidence. Investigative reports of Commission security personnel or of authorized agents of the Thoroughbred Racing Protective Bureau shall be deemed to be a part of the official records of the Commission in a relevant proceeding and an effected party shall have the right to examine the same insofar as they may pertain to matters directly and immediately in issue. Sanctions or orders may not be entered unless based upon substantial, reliable and probative evidence. Parties shall be entitled to cross-examine and to present rebuttal evidence as may be necessary to a full and fair hearing.
(g) At any time after the service of process a party may serve upon another party a written request for the admission of the genuineness of relevant documents. Copies of the subject documents shall accompany the request. Each requested admission shall be deemed made unless within 10 days after service thereof, the party so served serves upon the party making the request and the Commission either a statement setting forth the specific reasons why the admission cannot be made or written objections on the ground of privilege, irrelevancy or that the request is otherwise improper in whole or in part.
(h) The order of testimony will be at the discretion of the hearing officer. In determining this order, he shall take into consideration the right of each party to present his case or defense by oral or documentary evidence, to submit rebuttal evidence and to conduct such cross-examination as may be required for a full and true disclosure of the facts, and the desireability of hearing witnesses at times convenient for them. If it appears necessary or appropriate hearings may be continued generally or to a day certain.
(i) The hearing officer or the Commission may request a party to notify the Executive Secretary of the Commission in advance of the hearing of his intention to appear, and the approximate time testimony or argument will consume. The presiding officer may call any person he or she wishes to hear and may issue subpeonas to insure attendance.
(j) [Reserved].
(k) Bills of particulars may be requested in any matter and shall be allowed by the Commission in its discretion.
(l) If, at the time and place scheduled for hearing, parties who have received due notice are not in attendance whether in person or by counsel, the matter may be heard ex parte or by and upon default.
(m) A party to a proceeding may waive in writing the right to a hearing. A waiver shall constitute an admission of charges contained in the ruling appealed from or notice or notices of hearings prepared by the Commission and be deemed an authorization that the Commission may enter a final order or adjudication without necessity of receipt of further evidence. A waiver by a corporate licensee or uncorporated association shall be accompanied by a resolution under seal authorizing the submission of the waiver. The waivers shall be in a form prescribed by the Commission.
(n) Contemptuous conduct shall be grounds for exclusion from a hearing. If the hearing officer should deem the same to be occurring he shall so note on the record and shall see that a stenographic report is made of the same. Should he or the Commission deem any further sanction appropriate for the same, the further sanction can be imposed only following notice and a hearing, following completion of the original record of the incident in question.
(o) Motion and objections made during a hearing shall be stated orally and shall be included in the stenographic record of the hearing. Argument may not be included in the stenographic record unless a participant, shall so request.
(p) At the conclusion of the hearing, parties shall be afforded an opportunity to submit briefs and requests for findings of fact and conclusions of law. Copies of a brief or requests submitted shall be served upon the parties and formal proof of the service filed with the Commission. A party may request oral argument before the Commission as a matter of right. The Commission or an agent thereof may request the same which shall be scheduled upon due notice of the parties.
(q) A petition for rehearing, reconsideration or modification of a Commission order or adjudication shall be in writing setting forth in numbered paragraphs the findings or orders of the Commission that may be involved, the points relied upon by the petitioner, appropriate record references and specific request for the changes or modifications desired. If further evidence or testimony is desired or contemplated, the nature and purpose of the same must be briefly stated.
(r) The Commission may, at any time, in its discretion, and upon its own motion reopen a hearing upon due notice to the parties.
(s) A record of the testimony and exhibits, together with the papers and requests filed in the proceedings, and relevant official records shall constitute the record. In the event a party desires a written transcript, it shall be available at rates not to exceed the maximum rates fixed by contract between the Commission and the reporter. The copy of the Commission shall be open to inspection without charge by an interested party. Partial transcripts or transcripts of uncompleted hearings will not be furnished except to a party to the proceeding.
Source The provisions of this § 165.183 amended through April 14, 1978, effective April 15, 1978, 8 Pa.B. 1112.
Notes of Decisions The Commission did not violate its procedural regulations by making a site inspection after the public hearing in that a hearing is not the sole means by which the Commission may gather information. Upper Merion Township v. Horse Racing Commission, 602 A.2d 459 (Pa. Cmwlth. 1992).
Cross References This section cited in 58 Pa. Code § 165.184 (relating to decisions); and 58 Pa. Code § 165.231 (relating to hearing rights).
§ 165.184. Decisions.
(a) Within 30 days after the conclusion of the hearing, the Commission shall issue a written order. The Commission may also, in its discretion, render a written adjudication including a statement of findings of fact and conclusions of law, with the reasons or basis therefor, upon the material issues of fact, law or discretion presented on the record. Orders and adjudications shall be based upon a consideration of the whole record and be supported by reliable, probative and substantial evidence. A final order or adjudication shall be signed and approved by two members of the Commission who shall have the right to enter the final order or adjudication based upon the record made at the hearing or hearings conducted by the Commission or its designated hearing officer, under § 165.183 (relating to Commission hearings). Minority opinions may be submitted and these shall become part of the record.
(b) Orders and adjudications shall be served upon the parties or their counsel personally or by certified mail. If service is made by mail, the date of mailing will be the date of service.
Notes of Decisions Failure by the Commission to comply with this section’s requirements, including that the order of adjudication be in writing, rendered the Commission’s Order on reconsideration invalid since it violated its own regulations. Goldstein v. Horse Racing Commission, 557 A.2d 1183 (Pa. Cmwlth. 1989).
Cross References This section cited in 58 Pa. Code § 165.175 (relating to action without prior hearing).
§ 165.185. Appeals.
(a) Within 30 days after the entry of an adjudication or another final order or decision of the Commission, a party shall have the right to appeal therefrom to the Commonwealth Court under 42 Pa.C.S. § 763 (relating to direct appeals from government agencies).
(b) Parties interested jointly, severally or otherwise in the same adjudication may join in an appeal therefrom even though the interested parties do not join therein.
Source The provisions of this § 165.185 amended March 30, 1979, effective March 31, 1979, 9 Pa.B. 1130.
§ 165.186. Consolidation or severance.
Any two or more proceedings may be consolidated or severed by the Commission in its discretion.
§ 165.187. Authority of Secretary.
(a) The Executive Secretary of the Commission shall have authority to enter and issue the orders of the Commission and to certify copies of papers and documents which are part of the files or records of the Commission.
(b) The Executive Secretary of the Commission shall be responsible for the efficient and orderly discharge of administrative matters including the keeping of Commission journals and the minutes of Commission meetings and the keeping of the docket and files of the Commission, and shall be permitted to attend the hearing, meetings and deliberations of the Commission.
Source The provisions of this § 165.187 amended March 11, 1977, effective March 12, 1977, 7 Pa.B. 705.
§ 165.188. Construction and amendment of rules.
(a) This part is intended to aid the efficient operation of the Commission and the orderly administration of the law. This part shall be informally and liberally construed for the accomplishment of these purposes and may be waived or suspended by the Commission following prior notice and in a proceeding unless the action results in depriving a party of substantial rights.
(b) This chapter may be amended or rescinded by the Commission in accordance with law.
Source The provisions of this § 165.188 amended April 14, 1978, effective April 15, 1978, 8 Pa.B. 1112.
§ 165.189. Time limit for hearings.
In the event of failure of a party to proceed in or faithfully prosecute a matter pending before the Commission for a period in excess of 4 months, which has not been continued, the same may be dismissed with prejudice for reason of the default or neglect at the discretion of the Commission on its own motion or upon the motion of another affected party.
Source The provisions of this § 165.189 amended November 24, 1978, effective November 25, 1978, 8 Pa.B. 3344.
Notes of Decisions The Commission may dismiss cases pending more than 4 months before the Commission, in its discretion, due to fault or neglect, that have neither been duly continued nor prosecuted. Worthington v. Horse Racing Commission, 514 A.2d 311 (Pa. Cmwlth. 1986).
PROCEDURE BEFORE STEWARDS
§ 165.201. General power of stewards.
The Stewards shall have the power to resolve matters before them including those which are not expressly covered by this chapter. In all cases, the Stewards shall render an opinion in accordance with the generally accepted customs and usages of racing in conformity with equitable standards of justice.
Notes of Decisions An apprentice jockey who had his license suspended for use of illegal drugs without a hearing did not have his due process rights violated because he was given notice and an opportunity to challenge the suspension in a hearing before the Stewards, with the opportunity to be represented by counsel who cross-examined witnesses against him. Luzzi v. Horse Racing Commission, 548 A.2d 659 (Pa. Cmwlth. 1988).
Cross References This section cited in 58 Pa. Code § 165.204 (relating to contents of notice); and 58 Pa. Code § 165.216 (relating to illegal entries).
§ 165.202. Stewards’ jurisdiction.
The Stewards’ jurisdiction and powers shall extend for 30 days after the conclusion of a race meeting with respect to anything occurring thereat and shall commence at the time when entries are taken for the first day of racing thereat. A matter coming before the Stewards shall be decided within 14 days of the first formal action taken thereon, unless continued by agreement of the Stewards. No matter may be continued for more than an additional 14 days without the expressed permission of the Commission. Stewards’ reports and final orders and rulings shall be made within the time limits.
Notes of Decisions An apprentice jockey who had his license suspended for use of illegal drugs without a hearing did not have his due process rights violated because he was given notice and an opportunity to challenge the suspension in a hearing before the Stewards, with the opportunity to be represented by counsel who cross-examined witnesses against him. Luzzi v. Horse Racing Commission, 548 A.2d 659 (Pa. Cmwlth. 1988).
Cross References This section cited in 58 Pa. Code § 165.216 (relating to illegal entries).
§ 165.203. Notice required.
Before holding the hearing provided for under this chapter notice in writing shall be given to the party to be charged with a violation. A party may waive advance notice of a Stewards’ hearing by executing a written waiver at the start of the hearing.
Cross References This section cited in 58 Pa. Code § 165.216 (relating to illegal entries).
§ 165.204. Contents of notice.
The notice required by § 165.201 (relating to general power of stewards) shall:
(1) Informally and generally describe the nature of the infraction or violation charged.
(2) State the time and place of hearing.
(3) Notify the party of his right to have counsel or an observer of his choice and that he bears the sole responsibility for securing and insuring the presence of the same.
(4) Provide for the right to waive transcription of testimony at the hearing.
Notes of Decisions An apprentice jockey who had his license suspended for use of illegal drugs without a hearing did not have his due process rights violated because he was given notice and an opportunity to challenge the suspension in a hearing before the Stewards, with the opportunity to be represented by counsel who cross-examined witnesses against him. Luzzi v. Horse Racing Commission, 548 A.2d 659 (Pa. Cmwlth. 1988).
Cross References This section cited in 58 Pa. Code § 165.216 (relating to illegal entries).
§ 165.205. Testimony.
Testimony at a hearing shall be given under affirmation or oath and a record shall be made of the hearing, either by use of a tape recorder or by the transcript of the court reporter. The party charged with a violation may, however, waive the recording and transcribing of the testimony. The Stewards may not be required to receive testimony under oath in cases where their ruling is based solely upon a review of the video tapes of a race. A party may request a viewing of the film in the presence of the Stewards at the hearing and be given an opportunity to state his own interpretation of the same.
Notes of Decisions An apprentice jockey who had his license suspended for use of illegal drugs without a hearing did not have his due process rights violated because he was given notice and an opportunity to challenge the suspension in a hearing before the Stewards, with the opportunity to be represented by counsel who cross-examined witnesses against him. Luzzi v. Horse Racing Commission, 548 A.2d 659 (Pa. Cmwlth. 1988).
Cross References This section cited in 58 Pa. Code § 165.216 (relating to illegal entries).
§ 165.206. Hearing.
No final determination may be made by the Stewards until the hearing is completed and the evidence has been received and the party charged has been given the opportunity to hear the evidence presented against him. If a summoned or noticed party fails to appear, an order or ruling may be made against him by default.
Notes of Decisions An apprentice jockey who had his license suspended for use of illegal drugs without a hearing did not have his due process rights violated because he was given notice and an opportunity to challenge the suspension in a hearing before the Stewards, with the opportunity to be represented by counsel who cross-examined witnesses against him. Luzzi v. Horse Racing Commission, 548 A.2d 659 (Pa. Cmwlth. 1988).
Cross References This section cited in 58 Pa. Code § 165.216 (relating to illegal entries).
§ 165.207. Presence of stewards at hearing.
At least the State Steward and one Association Steward shall be present throughout a Stewards’ hearing.
Cross References This section cited in 58 Pa. Code § 165.216 (relating to illegal entries).
§ 165.208. Duty to testify.
It shall be the duty of all persons to make full and complete disclosure at a Stewards’ hearing of a fact or knowledge they may possess of violation or possible violation of a rule or regulation of racing of the Commission or of law and no person may refuse to testify before Stewards on a relevant matter except upon proper exercise of a legal privilege nor may a person testify falsely or incompletely to the Stewards.
Source The provisions of this § 165.208 amended December 8, 1978, effective December 9, 1978, 8 Pa.B. 3494.
Cross References This section cited in 58 Pa. Code § 165.216 (relating to illegal entries).
§ 165.209. Votes of stewards.
The Stewards shall decide all matters coming before them by majority vote. Should a Steward vote in the minority, he shall immediately make full report thereof to the Commission. A Steward so voting shall have the right to file a separate opinion thereof to the Commission.
Cross References This section cited in 58 Pa. Code § 165.216 (relating to illegal entries).
§ 165.210. Records and minutes of the stewards.
The State Steward shall be responsible for insuring that a complete set of minutes, records and orders and rulings by the Board of Stewards is maintained, including a record of votes taken, orders and rulings entered and fines imposed. A written report concerning formal orders and rulings shall be kept by the Stewards and copies of the same periodically transmitted to the Commission.
Cross References This section cited in 58 Pa. Code § 165.216 (relating to illegal entries).
§ 165.211. Stewards’ reference to the Commission.
The Stewards shall have the power to refer a matter within their jurisdiction or powers directly to the Commission either before or after holding a hearing thereon. The Stewards may refer a matter for initial hearing to the Commission whenever it is deemed by them to be impossible or impracticable to hold initial Stewards’ hearings, or because of the ending of a meet or for other good and substantial reason. A penalty or ruling made by the Stewards may be expressly conditioned by them on their own motion upon review and action by the Commission. If the penalty the Stewards imposed under this chapter appears insufficient to them, they shall immediately report the same to the Commission for further action.
Notes of Decisions An apprentice jockey who had his license suspended for use of illegal drugs without a hearing did not have his due process rights violated because he was given notice and an opportunity to challenge the suspension in a hearing before the Stewards, with the opportunity to be represented by counsel who cross-examined witnesses against him. Luzzi v. Horse Racing Commission, 548 A.2d 659 (Pa. Cmwlth. 1988).
Cross References This section cited in 58 Pa. Code § 165.216 (relating to illegal entries).
§ 165.212. Original record.
The original record of the hearing and the report of the Stewards shall be delivered by them to the Commission concurrently with notice of an order, ruling or determination made to the party charged and heard. If notice of the penalty, order, ruling or determination has been given orally by a Steward to the party charged, as well as by writing, the record shall contain a statement that the oral notice was given and the date, time and place when it was given. The record shall also state the date and manner that written notice thereof was given.
Notes of Decisions An apprentice jockey who had his license suspended for use of illegal drugs without a hearing did not have his due process rights violated because he was given notice and an opportunity to challenge the suspension in a hearing before the Stewards, with the opportunity to be represented by counsel who cross-examined witnesses against him. Luzzi v. Horse Racing Commission, 548 A.2d 659 (Pa. Cmwlth. 1988).
Cross References This section cited in 58 Pa. Code § 165.216 (relating to illegal entries).
§ 165.213. Notice of penalty.
In cases involving a penalty, fine, suspension or sanction of any nature, notice of the same shall be given in writing to an adversely affected party. A penalty, fine, suspension or other sanction shall be deemed to have been imposed from the time that notice thereof is given. Notice shall be deemed given as of the time made if the same be made orally and as of the time it is issued for delivery if given in writing. Where notice is given orally, it shall be given by a Steward and shall immediately be followed by written notice. Notice shall be issued within no less than 48 hours of the final Stewards’ ruling, order or determination.
Cross References This section cited in 58 Pa. Code § 163.481 (relating to review and appeal); 58 Pa. Code § 165.179 (relating to service and filing of papers); and 58 Pa. Code § 165.216 (relating to illegal entries).
§ 165.214. Review and appeal.
The Commission may investigate and review a decision of the stewards on its own motion or on the request of an aggrieved party. The appeal from the decision of stewards shall be made in writing within 10 days following the receipt of oral notice or the issuance of written notice of the decision, whichever occurs first. The appeal shall be sworn to before a notary public or one of the stewards unless taken by the Commission and shall set forth all matters complained of with particularity. The written notice of appeal shall be received by the Commission within the 10-day period. An appeal not so filed will be deemed untimely and matters that could have been reviewed by the Commission shall be deemed agreed to by the parties and errors waived.
Source The provisions of this § 165.214 adopted December 8, 1978, effective December 9, 1978, 8 Pa.B. 3494.
Notes of Decisions There is no time requirement as to when the Commission must hold a hearing on an appeal of the suspension of a jockey’s license. Luzzi v. Horse Racing Commission, 548 A.2d 659 (Pa. Cmwlth. 1988).
An apprentice jockey who had his license suspended for use of illegal drugs without a hearing did not have his due process rights violated because he was given notice and an opportunity to challenge the suspension in a hearing before the Stewards, with the opportunity to be represented by counsel who cross-examined witnesses against him. Luzzi v. Horse Racing Commission, 548 A.2d 659 (Pa. Cmwlth. 1988).
Cross References This section cited in 58 Pa. Code § 165.216 (relating to illegal entries).
§ 165.215. Effective date of decisions.
A decision rendered by the stewards shall only become effective 5 days after the ruling is served personally on the affected party or 5 days after the ruling has been sent by certified mail to the address given by the affected party in his license application unless the stewards shall find the delay to be contrary to the public interest. An affected party shall have the right to waive the delay in the effective date of a stewards’ ruling and may, by writing, consent to immediate effectuation of a sanction or order.
Source The provisions of this § 165.215 adopted November 24, 1978, effective November 25, 1978, 8 Pa.B. 3346.
Notes of Decisions An apprentice jockey who had his license suspended for use of illegal drugs without a hearing did not have his due process rights violated because he was given notice and an opportunity to challenge the suspension in a hearing before the Stewards, with the opportunity to be represented by counsel who cross-examined witnesses against him. Luzzi v. Horse Racing Commission, 548 A.2d 659 (Pa. Cmwlth. 1988).
Cross References This section cited in 58 Pa. Code § 165.216 (relating to illegal entries).
§ 165.216. Illegal entries.
If a licensee shall deliver a horse to an enclosure without a health or Coggin’s certificate, enter an untattooed horse, enter a horse whose owner or trainer is not licensed, enter a horse without a satisfactory foal certificate, enter a horse owned or controlled by an ineligible party, enter an ineligible horse, deliver a horse late to the paddock, fail to run an entered horse, file an incomplete or incorrect license application, fail to pay or see to payment of a required licensing fee, fail to file required medication or medication administration report forms, fail to pay a required entry or stake fee, fail to timely complete a phase of the licensing procedure, fail to make a complete or timely scratch of a horse not run, fail to file and maintain current up-to-date records of the ownership, sale, or transfer, or registration of ownership of a horse, enter a horse not properly registered with the Jockey Club following allowance of the time for correction of record allowed in § 163.102 (relating to certification of registration and identification), or violate a house rule approved by the Commission pertaining to smoking, fire, safety or parking violations, the stewards or the Commission may enter a fine only prior to the holding of a hearing upon receipt of credible evidence indicating the act. A fine to be imposed prior to a hearing may not exceed $100. In the event of the action, the licensee affected shall be promptly notified in writing by the stewards, or the Commission, of the entry of the fine and of his right to request a hearing under this section and § § 165.201—165.215 (relating to procedure before stewards) in the event of a fine imposed by the stewards and § 165.175 (relating to action without prior hearing) in the event of a fine imposed by the Commission. If the licensee desires to appeal a fine, he shall, on timely compliance with this chapter, be entitled to a hearing de novo. If the request is made, payment of the fine or fines in issue shall be stayed pending the outcome of the hearing. In the absence of a request for hearing under either § 165.175 or § § 165.201—165.216 at the expiration of the time allowed for a hearing fines as initially proposed will become final and binding for purposes.
Source The provisions of this § 165.216 adopted November 24, 1978, effective November 25, 1978, 8 Pa.B. 3345.
Notes of Decisions An apprentice jockey who had his license suspended for use of illegal drugs without a hearing did not have his due process rights violated because he was given notice and an opportunity to challenge the suspension in a hearing before the Stewards, with the opportunity to be represented by counsel who cross-examined witnesses against him. Luzzi v. State Horse Racing Commission, 548 A.2d 659 (Pa. Cmwlth. 1988).
Cross References This section cited in 58 Pa. Code § 165.216 (relating to illegal entries).
HEARING RIGHTS
§ 165.231. Hearing rights.
(a) The Commission or an association licensed by the Commission shall have the right and obligation to deny access to or to eject from facilities of a track a patron or licensee whose presence or conduct is deemed detrimental to the best interests of racing or to the orderly conduct of a racing meet.
(b) At the time of or immediately following ejectment of or denial of access to a licensee, the association or Commission agents acting therein shall advise the licensee in writing of his right to demand a hearing by mailed service of the form of notice as shall from time to time be prepared and supplied by the Commission. The form of notice shall be in a form prepared by the Commission and shall be mailed to the most current licensed address of the ejectee by certified return receipt mail.
(c) The notice shall advise the ejectee that he shall have a right to demand a hearing upon the ejection if written demand for the same is served upon the association in question and is received by the executive offices of the Commission no later than 48 hours following receipt by the ejectee of the notice confirming ejection. If an ejectee shall timely file a demand for a hearing, the hearing shall be scheduled within 48 hours of the time of receipt of the demand or as soon thereafter as possible. The hearing shall be at the executive offices of the Commission. Notice of the date and time of the hearing shall be forwarded to the most current licensed address of the ejectee and to the executive office of the association.
(d) The hearing shall be scheduled and conducted before a hearing officer to be designated by the Commission. The hearings shall be held in an informal manner and shall be mechanically recorded by the hearing officer. The hearing officer shall immediately upon conclusion of the hearing prepare a detailed summary of the hearing for review by the Commission. The rules of evidence as described in § 165.183(f) (relating to Commission hearings) shall apply to the hearings.
(e) Persons attending or participating in hearings shall comply with the following:
(1) Persons attending or participating in the hearing shall be obligated to and shall cooperate fully with the hearing officer and shall answer relevant questions and supply relevant information that may be requested. A person shall have the privilege of being represented by counsel of his choice and shall bear the sole responsibility for insuring and seeing to the presence and availability of the same at the time and place scheduled for the hearing. The person shall have the right to examine and cross-examine witnesses and to see written matters that are introduced into the record or used in evidence in the course of a hearing. Matters so used shall become a permanent part of the hearing file.
(2) If the ejectee waives receipt of a completed transcript of the hearing, the Commission will render a final summary report and decision no less than 48 hours following the conclusion of the hearing. If the ejectee, the Commission, or a directly interested party requests a completed transcript prior to decision, a final decision shall then be rendered 48 hours following the receipt of the transcript.
(f) The Commission may eject a patron from the enclosure at any time. The patron, however, shall be permitted a hearing regarding the ejection. However, the scope of the hearing shall be limited to the question of whether the ejection was arbitrary or capricious, in accordance with section 12.1 of the act (15 P. S. § 2662.1(a)) (Repealed).
(g) A complete copy of the ruling shall thereupon be served in the same manner as notice of the hearing.
(h) Other provisions of the provisions of this part pertinent to hearing not inconsistent herewith shall otherwise be applicable.
Source The provisions of this § 165.231 amended through January 23, 1981, effective January 10, 1981, 11 Pa. B. 420. Immediately preceding text appears at serial pages (51778) and (51779).
Notes of Decisions The Commission need not hold a hearing within 48 hours but rather schedule a hearing as soon as possible. Luzzi v. Horse Racing Commission, 548 A.2d 659 (Pa. Cmwlth. 1988).
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