811 KAR 1:095. Disciplinary measures and penalties.

811 KAR 1:095. Disciplinary measures and penalties.

RELATES TO: KRS 230.215, 230.260(1), (3), 230.265(2), 230.290(2), 230.300, 230.320(1)

STATUTORY AUTHORITY: KRS 230.215(2), 230.240(2), 230.260(3)

NECESSITY, FUNCTION, AND CONFORMITY: KRS 230.215(2) and KRS 230.260(3) authorize the Authority to promulgate administrative regulations prescribing the conditions under which horse racing shall be conducted in Kentucky. KRS 230.240(2) requires the Authority to promulgate administrative regulations restricting or prohibiting the use and administration of drugs or stimulants or other improper acts to horses prior to the horse participating in a race. This administrative regulation establishes the disciplinary powers and duties of the judges and the Authority.

Section 1. Definitions. (1) "Associated person" means the spouse of an inactive person, or a companion, family member, employer, employee, agent, partnership, partner, corporation or other entity whose relationship, whether financial or otherwise, with an inactive person would give the appearance that such other person or entity would care for or train a horse, or perform veterinarian services on a horse for the benefit, credit, reputation, or satisfaction of the inactive person.

(2) "Class A drug" means a drug, medication, or substance classified as a Class A drug, medication, or substance in the Schedule.

(3) "Class B drug" means a drug, medication, or substance classified as a Class B drug, medication, or substance in the Schedule.

(4) "Class C drug" means a drug, medication, or substance classified as a Class C drug, medication, or substance in the Schedule.

(5) "Class D drug" means a drug, medication, or substance classified as a Class D drug, medication, or substance in the Schedule.

(6) "Companion" means a person who cohabits with or shares living accommodations with an inactive person.

(7) "Inactive person" means a trainer or veterinarian who has his or her license suspended or revoked pursuant to this administrative regulation pertaining to:

(a) A violation involving a Class A drug;

(b) A second or third violation involving a Class B drug in which the person’s licensing privileges have been suspended or revoked for six (6) months or longer;

(d) A third or subsequent violation of 811 KAR 1:090 involving shock wave or blood gas machines.

(8) "Schedule" means the Kentucky Horse Racing Authority Uniform Drug and Medication Classification Schedule.

(9) ‘Withdrawal guidelines" means the Kentucky Horse Racing Authority Withdrawal Guidelines for Standardbreds.

Section 2. General Provisions. (1) An alleged violation of 811 KAR 1:090 shall be adjudicated in accordance with this administrative regulation, and with 811 KAR 1:100, 811 KAR 1:105, and KRS Chapter 13B.

(2) If a drug, medication, or substance is found to be present in a prerace or postrace sample that is not classified in the Schedule, the Authority may establish a classification after consultation with either or both of the Racing Commissioners International and the Racing and Medication Consortium.

(3) The judges and the Authority shall consider any mitigating or aggravating circumstances properly presented when assessing penalties pursuant to this administrative regulation. Evidence of full compliance with the Withdrawal Guidelines shall be considered by the judges and the Authority as a mitigating factor to be used in determining violations and penalties.

(4) Pursuant to KRS 230.320, the Authority shall have the authority to suspend or revoke the Authority-issued license of an owner, trainer, veterinarian, or other licensee.

(5) A licensee whose license has been suspended or revoked or a horse that has been suspended shall be denied access to locations under the jurisdiction of the Authority during the term of the suspension or revocation.

(6) A suspension or revocation shall be calculated in calendar days.

(7) A person assessed a penalty pursuant to this administrative regulation shall have his or her name and the terms of his or her penalty placed on the official Web site of the Authority. If an appeal is pending, that fact shall be so noted.

(8) To protect the racing public and ensure the integrity of racing in the Commonwealth, a trainer whose penalty for a prior Class A violation or for a prior Class B third offense violation under this administrative regulation has not been finally adjudicated may, if stall space is available, be required to house a horse that the trainer has entered in a race in a designated stall for the twenty-four (24) hour period prior to post time of the race in which the horse is entered. If the judges require the trainer’s horse to be kept in a designated stall, there shall be twenty-four (24) hour surveillance of the horse by the association and the cost shall be borne by the trainer.

(9) A veterinarian who has engaged in prohibited practices in violation of 811 KAR 1:090, shall be reported to the Kentucky Board of Veterinary Examiners and the state licensing board of veterinary medicine by the judges.

(10) An administrative action or the imposition of penalties pursuant to this administrative regulation shall not constitute a bar or be considered jeopardy to prosecution of an act that violates the criminal statutes of Kentucky.

(11) If a person is charged with committing multiple or successive overages involving a Class C or Class D drug, medication, or substance, the judges or the Authority may charge the person with only one (1) offense if the person demonstrates that he or she was not aware that overages were being administered because the positive test results showing such overages were unavailable to the person charged. In this case, the person alleging that he or she was not aware of the overages shall bear the burden of proving that fact to the judges or the Authority.

(12) Any person who has been fined under this administrative regulation shall be suspended until fine has been paid in full.

(13) Payment of a fine directly or indirectly by a person other than the person upon whom it is imposed shall be prohibited and shall not serve to abate or satisfy any penalty imposed.

(14) Written or printed notice of the assessment of a penalty shall be made to the person penalized, notice shall be posted immediately at the office of the association, and notice shall be forwarded immediately to the office of the Authority, the United States Trotting Association, and the Association of Racing Commissioners International by the presiding judge or clerk of the course.

(15) If the penalty is for a driving violation and does not exceed in time a period of five (5) days, the driver may complete the engagement of all horses declared in before the penalty becomes effective. The driver may drive in stake, futurity, early closing and feature races, during a suspension of five (5) days or less, but the suspension shall be extended one (1) day for each date the driver drives in such a race.

(16) A horse shall not have the right to compete while owned or controlled wholly or in part by a person whose license has been suspended or revoked. An entry made by or for a licensee whose license has been suspended or revoked or for a horse which has been suspended shall be held liable for the entrance fee without the right to compete unless the penalty is removed.

(17) An association shall not willfully allow a person whose license has been suspended or revoked to drive in a race, or a suspended or disqualified horse to start in a race or a performance against time.

(18) An association shall not willfully allow the use of its track or grounds by a licensee whose license has been suspended or revoked, or a horse that has been suspended.

(19) If a person is excluded from a pari-mutuel association by the association, the Authority shall be notified.

(20) A person subject to current suspension, revocation, or expulsion shall not act as an officer of an association. An association shall not, after receiving notice of the penalty, employ or retain in its employ an expelled, suspended, disqualified or excluded person at or on the track during the progress of a race meeting.

(21) A licensee that has been suspended shall serve any suspension imposed:

(a) During the current race meet, if there are enough remaining days to serve out the suspension;

(b) During the next regularly scheduled race meet at the operating race track where the infraction took place if there are not enough remaining days to serve out the suspension; or

(c) During a race meet at another operating track in this state where the licensee seeks to engage in the activity for which he or she is licensed if the track where the infraction took place closes before another race meet is held at that track.

(22) A penalty imposed by the United States Trotting Association or the racing commissions of other states shall be recognized and enforced by the Authority unless application is made for a hearing before the Authority, during which the applicant must show cause as to why the penalty should not be enforced against him in this state.

Section 3. Prior Offenses. (1) A prior offense occurring in Kentucky shall be considered, in accordance with the requirements of this section, by the judges and by the Authority in assessing penalties. A prior offense occurring in another racing jurisdiction shall be considered by the judges and the Authority in assessing penalties. The judges shall attach to a penalty judgment a copy of the offender’s prior record listing violations that were committed both inside and outside of Kentucky.

(2) A prior offense occurring before the effective date of this administrative regulation shall not be considered.

(3) A prior offense involving a Class C drug or Class D drug may be considered as a prior offense if the act that constituted the offense was committed after the effective date of this administrative regulation and within one (1) year of the offense for which the person stands charged.

(4) A prior offense involving a Class A or B drug may be considered as a prior offense if the act that constituted the offense was committed after the effective date of this administrative regulation.

(5) A prior offense shall not be considered for purposes of enhancing a penalty if the drug, medication or substance that was the subject of the prior offense was of a lower class, pursuant to the Schedule, than the drug, medication or substance that is the subject of the offense for which the person stands charged.

Section 4. Penalties for Violations Not Related To Drugs or Medications. (1) A violation classified as a Category 1 violation shall be punishable by a suspension or revocation of licensing privileges from zero to thirty (30) days, in proportion to the seriousness of the violation and the facts of the case. The licensee whose licensing privileges may be suspended or revoked and the Authority may enter into an agreement to mitigate the suspension or revocation by agreeing to the payment of a fine not to exceed $5,000.

(2) A violation classified as a Category 2 violation shall be punishable by a suspension or revocation of licensing privileges from thirty (30) to sixty (60) days in proportion to the seriousness of the violation and the facts of the case. The licensee whose licensing privileges may be suspended or revoked and the Authority may enter into an agreement to mitigate the suspension or revocation by agreeing to the payment of a fine not to exceed $10,000.

(3) A violation classified as a Category 3 violation shall be punishable by a suspension or revocation of licensing privileges from sixty (60) days to permanent suspension or revocation in proportion to the seriousness of the violation. The licensee whose licensing privileges may be suspended or revoked and the Authority may enter in an agreement to mitigate the suspension or revocation by agreeing to the payment of a fine up to $50,000 commensurate with the seriousness of the violation.

(4) A violation of 811 KAR Chapter 1 not otherwise specifically addressed shall be a Category 1 violation and shall be subject to the penalties set forth in subsection (1) of this section.

Section 5. Penalties for Violations Relating to Class A, B, C or D Drugs. (1) Class A drug. A licensee who administers, or is a party to or responsible for administering a Class A drug to a horse, in violation of 811 KAR 1:090, shall be subject to the following penalties:

(a) For a first offense:

1. A suspension or revocation of licensing privileges from zero to three (3) years, in proportion to the seriousness of the violation and the facts of the case, and forfeiture of purse money won. Section 8 of this administrative regulation shall apply to any person whose licensing privileges have been suspended or revoked.

(2) The licensee whose licensing privileges may be suspended or revoked and the Authority may enter into an agreement to mitigate the suspension or revocation by agreeing to payment of a fine of $5,000 to $10,000.

(b) For a second offense:

1. A suspension or revocation of licensing privileges from three (3) to five (5) years in proportion to the seriousness of the violation and the facts of the case, and forfeiture of purse money won. Section 8 of this administrative regulation shall apply to any person whose licensing privileges have been suspended or revoked.

2. The licensee whose licensing privileges may be suspended or revoked and the Authority may enter into an agreement to mitigate the suspension or revocation by agreeing to payment of a fine of $10,000 to $20,000.

1. A suspension or revocation of licensing privileges for not less than five (5) years in proportion to the seriousness of the violation and the facts of the case, and forfeiture of purse money won. A revocation of licensing privileges may be permanent. Section 8 of this administrative regulation shall apply to any person whose licensing privileges have been suspended or revoked.

2. The licensee whose license may be suspended or revoked and the Authority may enter into an agreement to mitigate the suspension or revocation by agreeing to payment of a fine of $20,000 to $50,000

(d) Suspension of the owner’s horse. A horse administered a Class A drug, in violation of 811 KAR 1:090, shall be subject to suspension from racing in Kentucky as follows:

1. For a first offense - a suspension from zero to sixty (60) days;

2. For a second offense - a suspension from sixty (60) - 180 days;

3. For a third offense - a suspension from 180 - 240 days.

(2) Class B drug. A licensee who administers, or is a party to or is responsible for administering a Class B drug to a horse in violation of 811 KAR 1:090, shall be subject to the following penalties:

(a) For a first offense:

1. A suspension or revocation of licensing privileges from zero to sixty (60) days in proportion to the seriousness of the violation and the facts of the case, and forfeiture of purse money won. Section 8 of this administrative regulation shall apply to any person whose licensing privileges have been suspended or revoked.

(b) For a second offense:

1. A suspension or revocation of licensing privileges from one (1) month to six (6) months in proportion to the seriousness of the violation and the facts of the case, and forfeiture of purse money won. Section 8 of this administrative regulation shall apply to any person whose licensing privileges have been suspended or revoked..

1. A suspension or revocation of licensing privileges from two (2) months to one (1) year in proportion to the seriousness of the violation and the facts of the case, and forfeiture of purse money won. Section 8 of this administrative regulation shall apply to the person whose licensing privileges have been suspended or revoked.

(d) Suspension of the owner’s horse. A horse administered a Class B drug, in violation of 811 KAR 1:090, shall be subject to a suspension from racing in Kentucky, as follows:

1. For a first offense - no suspension;

2. For a second offense - a suspension from zero - 60 days;

3. For a third offense - a suspension from sixty (60) - 180 days.

(3) Class C drug. A licensee who administers, or is a party to or is responsible for administering a Class C drug to a horse, in violation of 811 KAR 1:090, or is responsible for administering an overage of phenylbutazone or flunixin, in violation of 811 KAR 1:090, Section 8, shall be subject to the following penalties:

(a) For a first offense:

1. A suspension or revocation of licensing privileges from zero to ten (10) days in proportion to the seriousness of the violation and the facts of the case, and forfeiture of purse money won. Section 8 of this administrative regulation shall apply to any person whose licensing privileges have been suspended or revoked.

(b) For a second offense within a 365-day period:

1. A suspension or revocation of licensing privileges from ten (10) to thirty (30) days in proportion to the seriousness of the violation and the facts of the case, and forfeiture of purse money won. Section 8 of this administrative regulation shall apply to any person whose licensing privileges have been suspended or revoked.

2. The licensee whose license may be suspended or revoked and the Authority may enter into an agreement to mitigate the suspension or revocation by agreeing to payment of a fine of $500 to $1,000.

1. A suspension or revocation of licensing privileges from thirty (30) days to sixty (60) days in proportion to the seriousness of the violation and the facts of the case, and forfeiture of purse money won. Section 8 of this administrative regulation shall apply to any person whose licensing privileges have been suspended or revoked.

2. The licensee whose license may be suspended or revoked and the Authority may enter into an agreement to mitigate the suspension or revocation by agreeing to payment of a fine of $1,000 to $2,500.

(4) Class D Drug.

(a) The penalty for a violation involving a Class D drug shall be a written warning to the trainer and owner.

(b) Multiple violations involving a Class D drug may result in a suspension of licensing privileges from zero to five (5) days in proportion to the seriousness of the violation and the facts of the case.

(c) The licensee whose licensing privileges may be suspended and the Authority may enter into an agreement to mitigate the suspension by agreeing to payment of a fine of not more than $250.

Section 6. TCO2 penalties. A person who violates or causes the violation of 811 KAR 1:090, Section 19(6), (7), or (8) shall be subject to the following penalties:

(1) For a first offense involving a positive pre-race test result, the licensee shall be issued a warning.

(2) For a first offense involving a positive post-race test result:

(a) A suspension or revocation of licensing privileges from zero days to three (3) months in proportion to the seriousness of the violation and the facts of the case, and forfeiture of purse money won. Section 8 of this administrative regulation shall apply to any person whose licensing privileges have been suspended or revoked.

(b) The licensee whose licensing privileges may be suspended or revoked and the Authority may enter into an agreement to mitigate the suspension or revocation by agreeing to payment of a fine of $1,000 to $1,500.

(3) For a second offense involving a prerace or postrace test result:

(a) A suspension or revocation of licensing privileges from three (3) months to six (6) months in proportion to the seriousness of the violation and the facts of the case, and forfeiture of purse money won. Section 8 of this administrative regulation shall apply to any person whose licensing privileges have been suspended or revoked.

(4) For a third offense involving a prerace or postrace test result:

(a) A suspension or revocation of licensing privileges from six (6) months to (1) year in proportion to the seriousness of the violation and the facts of the case, and forfeiture of purse money won. Section 8 of this administrative regulation shall apply to any person whose licensing privileges have been suspended or revoked.

(5) Subsequent offenses:

(a) A suspension or revocation of licensing privileges from one (1) year up to a lifetime license revocation in proportion to the seriousness of the violation and the facts of the case.

(b) The licensee whose licensing privileges may be suspended or revoked and the Authority may enter into an agreement to mitigate the suspension or revocation by agreeing to forfeiture of purse money won.

(6) Suspension of the owner’s horse. A horse that registers a TCO2 level in violation of 811 KAR 1:090 shall be subject to suspension from racing in the Commonwealth of Kentucky as follows:

(a) For a first offense - no suspension;

(b) For a second offense - a suspension from fifteen (15) to sixty (60) days;

(d) For a fourth offense - a suspension from eight (8) months to one (1) year.

(7) In any instance of a positive prerace TCO2 test result, the horse shall be scratched.

Section 7. Shock Wave Machine and Blood Gas Machine Penalties. A person who violates or causes a violation of 811 KAR 1:090, Section 19(5)(b), (9), or (10) regarding a shock wave machine or blood gas machine shall be subject to the following penalties:

(1) For a first offense:

(a) A suspension or revocation of licensing privileges from one (1) to three (3) months in proportion to the seriousness of the violation and the facts of the case.

(2) For a second offense:

(a) A suspension or revocation of licensing privileges from ninety (90) to 180 days in proportion to the seriousness of the violation and the facts of the case.

(3) For a third offense:

(a) A suspension or revocation of licensing privileges from 180 days to one (1) year in proportion to the seriousness of the violation and the facts of the case.

Section 8. Persons with a Suspended or Revoked License. (1) A person shall not train a horse or practice veterinary medicine for the benefit, credit, reputation or satisfaction of an inactive person. This prohibition shall not prevent the partners in a veterinary practice from providing services to horses as long as the inactive person does not receive a pecuniary benefit from those services.

(2) An associated person of an inactive person shall not:

(a) Assume the inactive person’s responsibilities at a location under the jurisdiction of the Authority;

(b) Complete an entry form for a race to be held in the Commonwealth of Kentucky on behalf of or for the inactive person or an owner or customer for whom the inactive person has worked; or

(c) Pay or advance an entry fee for a race to be held in the Commonwealth of Kentucky on behalf of the inactive person or owner or customer for whom the inactive person has worked.

(3) An associated person who assumes the responsibility for the care, custody or control of an unsuspended horse owned (fully or partially), leased, or trained by an inactive person shall not:

(a) Be paid a salary directly or indirectly by or on behalf of the inactive person;

(b) Receive a bonus or any other form of compensation in cash, property or other remuneration or consideration;

(c) Make a payment or give remuneration or other compensation or consideration to the inactive person or associated person; or

(d) Train or perform veterinarian work for the inactive person or an owner or customer of the inactive person at a location under the jurisdiction of the Authority.

(4) A person who is responsible for the care, training or veterinarian services provided to a horse formerly under the care, training or veterinarian services of an inactive person shall:

(a) Bill customers directly on his or her bill form for any services rendered at or in connection with any race meeting in the Commonwealth of Kentucky;

(b) Maintain a personal checking account totally separate from and independent of that of the inactive person to be used to pay expenses of and deposit income from an owner or client of the inactive person;

(d) Pay bills related to the care, training and racing of the horse from a separate and independent checking account. Copies of the invoices for such expenses shall be retained for not less than six (6) months after the date of the reinstatement of the license of the inactive person or the expiration of the suspension of the inactive person’s license.

Section 9. Other Disciplinary Measures. (1) A person who violates 811 KAR 1:090, Section 6, regarding furosemide and adjunct bleeder medication use on raceday shall be treated the same as a person who has committed a Class C drug violation.

(2) A person who violates 811 KAR 1:090, Section 8(1), for exceeding the concentration levels allowed for phenylbutazone or flunixin shall be treated the same as a person who has committed a Class C drug violation.

(3) A person who violates 811 KAR 1:090, Section 8(10), for administering a non-steroidal anti-inflammatory drug other than phenylbutazone or flunixin shall be treated the same as a person who has committed a Class C drug violation.

(4) A person who is responsible for more than one oral or intravenous administration of a Nonsteroidal Anti-Inflammatory Drug (NSAID) within twenty-four (24) hours of post time, in violation of 811 KAR 1:090, Section 8(1), shall be treated the same as a person who has committed a Class B drug violation.

(5) A person who violates 811 KAR 1:090, Section 19(2), shall be treated the same as a person who has committed a Class A drug violation.

(6) A person who violates 811 KAR 1:090, Section 19(3)(a), shall be treated the same as a person who has committed a Class A drug violation.

(7) A person who violates Section 2(15) of this administrative regulation shall be subject to a suspension or revocation of licensing privileges for up to one (1) year in proportion to the seriousness of the violation and the facts of the case and shall forfeit purse money won while in violation of Section 2(15). The licensee whose licensing privileges may be suspended or revoked and the Authority may enter into an agreement to mitigate the suspension or revocation by agreeing to payment of a fine of up to $5,000.

(8) An association in violation of Section 2(16), (17), or (19) of this administrative regulation shall, together with its officers, be subject to a suspension or revocation of licensing privileges for up to thirty (30) days in proportion to the seriousness of the violation and the facts of the case. The licensee whose licensing privileges may be suspended or revoked and the Authority may enter into an agreement to mitigate the suspension or revocation by agreeing to payment of a fine of up to $5,000.

Section 10. Disciplinary Measures by Judges. (1) Upon finding a violation or an attempted violation of 811 KAR Chapter 1 or KRS Chapter 230, if not otherwise provided for in this administrative regulation, the judges may impose one (1) or more of the following penalties:

(a) If the violation or attempted violation may affect the health or safety of a horse or race participant, or may affect the outcome of a race, declare a horse or a licensee ineligible to race or disqualify a horse or a licensee in a race;

(b) Suspend or revoke a person’s licensing privileges for a period of time of not more than five (5) years in proportion to the seriousness of the violation and the facts of the case; or

(c) Cause a person, licensed or unlicensed, found to have interfered with, or contributed toward the interference of the orderly conduct of a race or race meeting, or person whose presence is found by the judges to be inconsistent with maintaining the honesty and integrity of the sport of horse racing, to be excluded or ejected from association grounds or from a portion of association grounds.

(2) The licensee whose licensing privileges may be suspended or revoked and the judges may enter into an agreement to mitigate the suspension or revocation by agreeing to payment of a fine in an amount not to exceed $5,000 in proportion to the seriousness of the violation and the facts of the case.

Section 11. Disciplinary Measures by the Authority. (1) Upon finding a violation or an attempted violation of 811 KAR Chapter 1 or KRS Chapter 230, if not otherwise provided for in this administrative regulation, the Authority may impose one (1) or more of the following penalties:

(a) If the violation or attempted violation may affect the health or safety of a horse or race participant, or may affect the outcome of a race, declare a horse or a licensed person ineligible to race or disqualify a horse or a licensed person in a race;

(b) Suspend or revoke a person’s licensing privileges for a period of time of not more than five (5) years in proportion to the seriousness of the violation; or

(c) Cause a person found to have interfered with or contributed toward the interference of the orderly conduct of a race or race meeting, or person whose presence is found by the Authority to be inconsistent with maintaining the honesty and integrity of horse racing, to be excluded or ejected from association grounds or a portion of association grounds.

(3) Upon appeal of a matter determined by the judges the Authority may or hearing de novo of a matter determined by the judges, reverse or revise the judges' ruling in whole or in part; except as to findings of fact by the judges' ruling regarding matters that occurred during or incident to the running of a race and as to the extent of disqualification fixed by the judges for a foul in a race.

Section 12. Incorporation by Reference. (1) The following material is incorporated by reference:

(a) "The Kentucky Horse Racing Authority Uniform Drug and Medication Classification Schedule", (11/05); and

(b) "The Kentucky Horse Racing Authority Withdrawal Guidelines for Standardbreds", (4/07).

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the office of the Kentucky Horse Racing Authority, 4063 Iron Works Pike, Lexington, Kentucky 40511, Monday through Friday, 8 a.m. to 4:30 p.m.

(3) This material may also be obtained from the Kentucky Horse Racing Authority Web site, www.khra.ky.gov. (KTC 1-8 (Rule 22); 1 Ky.R. 1114; eff. 6-11-75; 33 Ky.R. 962; 3396; eff. 6-1-07.)