ENGROSSED
COMMITTEE SUBSTITUTE
FOR
H. B. 2388
(By Delegate Doyle)
[Originating in the Committee on Government Organization]
(March 27, 2009)
A BILL to repeal §19-23-27, §19-23-28 and §19-23-29 of the Code of
West Virginia, 1931, as amended, be repealed; to amend and
reenact §6-7-2a of said code; and to amend and reenact
§19-23-4, §19-23-5, §19-23-6, §19-23-15, §19-23-16 and §19-23-
17 of said code, all relating to the organization of the
racing commission; establishing the criteria for membership;
creating the position of director of racing; establishing the
qualification of the director of racing; permitting the
director to hire a staff; providing a compliant procedure;
requiring the use of the administrative procedures act to
conduct a hearing and providing an appeal procedure.
Be it enacted by the Legislature of West Virginia:
That
§19-23-27, §19-23-28 and §19-23-29 of the Code of West
Virginia, 1931, as amended, be repealed; that §6-7-2a of said code be amended and reenacted; that §19-23-4, §19-23-5, §19-23-6, §19-
23-15, §19-23-16 and §19-23-17 of said code be amended and
reenacted, all to read as follows:
CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.
ARTICLE 7. COMPENSATION AND ALLOWANCES.
§6-7-2a. Terms of certain appointive state officers; appointment;
qualifications; powers and salaries of such the officers.
(a) Each of the following appointive state officers named in
this subsection shall be appointed by the Governor, by and with the
advice and consent of the Senate. Each of the appointive state
officers serves at the will and pleasure of the Governor for the
term for which the Governor was elected and until the respective
state officers' successors have been appointed and qualified. Each
of the appointive state officers are subject to the existing
qualifications for holding each respective office and each has and
is hereby granted all of the powers and authority and shall perform
all of the functions and services heretofore vested in and
performed by virtue of existing law respecting each office.
Prior to July 1, 2006, each such the named appointive state officer
shall continue to receive the annual salaries they were receiving
as of the effective date of the enactment of this section in 2006,
and thereafter, notwithstanding any other provision of this code to
the contrary,
The annual salary of each named appointive state officer shall be as follows:
Commissioner, Division of Highways, $92,500; Commissioner,
Division of Corrections, $80,000; Director, Division of Natural
Resources, $75,000; Superintendent, State Police, $85,000;
Commissioner, Division of Banking, $75,000; Commissioner, Division
of Culture and History, $65,000; Commissioner, Alcohol Beverage
Control Commission, $75,000; Commissioner, Division of Motor
Vehicles, $75,000; Chairman, Health Care Authority, $80,000;
members, Health Care Authority, $70,000; Director, Human Rights
Commission, $55,000; Commissioner, Division of Labor, $70,000;
Director, Division of Veterans' Affairs, $65,000; Chairperson,
Board of Parole, $55,000; members, Board of Parole, $50,000;
members, Employment Security Review Board, $17,000; and
Commissioner, Bureau of Employment Programs, $75,000. Secretaries
of the departments shall be paid an annual salary as follows:
Health and Human Resources, $95,000; Transportation, $95,000:
Provided, That if the same person is serving as both the Secretary
of Transportation and the Commissioner of Highways, he or she shall
be paid $120,000; Revenue, $95,000; Military Affairs and Public
Safety, $95,000; Administration, $95,000; Education and the Arts,
$95,000; Commerce, $95,000; and Environmental Protection, $95,000:
Provided, however, That any increase in the salary of any current
appointive state officer named in this subsection pursuant to the
reenactment of this subsection during the regular session of the Legislature in 2006, that exceeds $5,000 shall be paid to such the
officer or his or her successor beginning July 1, 2006, in annual
increments of $5,000 per fiscal year, up to the maximum salary
provided in this subsection: Provided further, That if the same
person is serving as both the Secretary of Transportation and the
Commissioner of Highways, then the annual increments of $5,000 per
fiscal year do not apply.
(b) Each of the state officers named in this subsection shall
continue to be appointed in the manner prescribed in this code and,
prior to July 1, 2006, each of the state officers named in this
subsection shall continue to receive the annual salaries he or she
was receiving as of the effective date of the enactment of this
section in 2006, and shall thereafter, notwithstanding any other
provision of this code to the contrary, be paid an annual salary as
follows:
Director, Board of Risk and Insurance Management, $80,000;
Director, Division of Rehabilitation Services, $70,000; Director,
Division of Personnel, $70,000; Executive Director, Educational
Broadcasting Authority, $75,000; Secretary, Library Commission,
$72,000; Director, Geological and Economic Survey, $75,000;
Executive Director, prosecuting attorneys Institute, $70,000;
Executive Director, Public Defender Services, $70,000;
Commissioner, Bureau of Senior Services, $75,000; Director, State
Rail Authority, $65,000; Executive Director, Women's Commission, $45,000; Director, Hospital Finance Authority, $35,000; member,
Racing Commission, twelve thousand dollars; Chairman, Public
Service Commission, $85,000; members, Public Service Commission,
$85,000; Director, Division of Forestry, $75,000; Director,
Division of Juvenile Services, $80,000; and Executive Director,
Regional Jail and Correctional Facility Authority, $80,000:
Provided, That any increase in the salary of any current appointive
state officer named in this subsection pursuant to the reenactment
of this subsection during the regular session of the Legislature in
2006 that exceeds $5,000 shall be paid to such the officer or his
or her successor beginning July 1, 2006, in annual increments of
$5,000 per fiscal year, up to the maximum salary provided in this
subsection.
(c) Each of the following appointive state officers named in
this subsection shall be appointed by the Governor, by and with the
advice and consent of the Senate. Each of the appointive state
officers serves at the will and pleasure of the Governor for the
term for which the Governor was elected and until the respective
state officers' successors have been appointed and qualified. Each
of the appointive state officers are subject to the existing
qualifications for holding each respective office and each has and
is hereby granted all of the powers and authority and shall perform
all of the functions and services heretofore vested in and
performed by virtue of existing law respecting each office.
Prior to July 1, 2006, each such named appointive state
officer shall continue to receive the annual salaries they were
receiving as of the effective date of the enactment of this section
in 2006, and thereafter, notwithstanding any other provision of
this code to the contrary, the annual salary of each named
appointive state officer shall be as follows:
Commissioner, State Tax Division, $92,500; Commissioner,
Insurance Commission, $92,500; Director, Lottery Commission,
$92,500 Director, Director of the Racing Commission, $62,500;
Division of Homeland Security and Emergency Management, $65,000;
and Adjutant General, $92,500.
(d) No increase in the salary of any appointive state officer
pursuant to this section shall be paid until and unless the
appointive state officer has first filed with the State Auditor and
the Legislative Auditor a sworn statement, on a form to be
prescribed by the Attorney General, certifying that his or her
spending unit is in compliance with any general law providing for
a salary increase for his or her employees. The Attorney General
shall prepare and distribute the form to the affected spending
units.
CHAPTER 19. AGRICULTURE.
ARTICLE 23. HORSE AND DOG RACING.
§19-23-4. West Virginia Racing Commission.
(a) The "West Virginia Racing Commission," is continued.
in
existence as a public corporation and as such, may contract and be
contracted with, plead and be impleaded, sue and be sued and have
and use a common seal. (b) The Racing Commission
(b) The commission shall consist of
three five members, not
more than
two three of whom shall belong to the same political
party, to be appointed by the Governor by and with the advice and
consent of the Senate.
(c) (1) One member shall have at least five years experience
in representing labor issues;
(2) One member shall have at least five years of experience as
an accountant;
(3) One member shall have at least five years of experience as
an attorney;
(4) One member who shall have not less than five years
experience in horse racing; and,
(5) One member who shall have not less than five years of
experience in greyhound racing.
(d) The term of office for the members of the Racing
Commission is four years, and
members may serve until their
successors have been appointed and have qualified.
and members of
the Racing Commission may serve any number of successive terms.
(e) The Governor shall stagger the initial terms as follows:
One at the end of three year; two at the end of four years; two at the end of five years.
(f) After the initial appointments by the Governor, each
member shall be appointed for a term of five years and may not
serve more than two consecutive terms. Any member who has served
two consecutive full terms may not be reappointed for at least one
year after completion of his or her second full term.
(g) One members shall be appointed from each congressional
district.
The members of the Racing Commission in office on the
effective date of the amendment and reenactment of this section in
two thousand one shall, unless removed by the Governor after the
effective date of this article, continue to serve until their terms
expire and until their successors have been appointed and have
qualified.
(h) On July 1, 2009, all commission members are removed and
the Governor shall appoint new commission members according to the
qualifications established in this section.
(i) The Governor shall fill Any vacancy
in the office of a
member of the Racing Commission shall be filled by appointment by
the Governor for the unexpired term of the member whose office
shall be vacant. No person is eligible for appointment to or to
serve upon the Racing Commission:
(1) Unless he or she is an actual and bona fide resident of
this state, shall have resided in this state for a period of at least five years next preceding his or her appointment, shall be a
qualified voter of this state and be not less than twenty-five
years of age;
(2) Who directly or indirectly, or in any capacity, owns or
has any interest, in any manner whatever, in any racetrack where
horse or dog race meetings may be held, including, but not limited
to, an interest as owner, lessor, lessee, stockholder or employee;
(3) While serving as a member of the Legislature or as an
elective officer of this state; or
(4) Who has been or shall be convicted of an offense which,
under the law of this state or any other state or of the United
States of America, constitutes a felony, or is a violation of
article four, chapter sixty of this code.
(j) Each member is entitled to compensation not to exceed the
amount paid to members of the Legislature for their interim duties
and reimbursement for actual and necessary expenses incurred for
each day or portion of a day engaged in the discharge of official
duties in a manner consistent with guidelines of the Travel
Management Office of the Department of Administration.
(d) (k) The Racing Commission shall have its principal office,
the State Racing Office, at the seat of government, and shall meet
annually at least monthly at its principal office
in the month of
January, and at any other times and places designated by its
chairman, chair person,
the Director of Racing, or majority of the commission members.
At the annual meeting the On July 1 of each
year, the Racing Commission shall elect from its membership a
chairman chair person and any other officers that are desired.
Other meetings of the Racing Commission may be called by the
chairman on such notice to the other members prescribed by the
Racing Commission.
(e) (l) A majority of the members of the Racing Commission
constitute a quorum for the transaction of its business or the
exercise of any of its powers and authority. No person not a bona
fide member of the Racing Commission shall vote upon or participate
in the deliberations of the Racing Commission on any matter which
may come before it. All Racing Commission records, except as
otherwise provided by law, shall be open to public inspection
during regular office hours
of the State Racing Office.
(f) (m) As soon as possible after the close of each calendar
year, the Racing Commission shall submit to the Governor a report
of the transactions of the Racing Commission during the preceding
calendar year.
(n) Members of the commission and members of their immediate
families may not be employed by or have an ownership interest an
entity within the racing industry for the previous five years.
§19-23-5. Director of Racing and other personnel.
(a)
The Racing Commission shall appoint a racing secretary to
represent the Racing Commission and such racing secretary shall possess such powers and authority and perform such duties as the
Racing Commission may direct or prescribe. The racing secretary
shall preserve at the Racing Commission's principal office all
books, maps, records, documents and other papers of the Racing
Commission. The racing secretary shall, in addition to all other
duties imposed upon him by the Racing Commission, serve in a
liaison capacity between licensees and the Racing Commission. The
Racing Commission may also employ, direct and define the duties of
an assistant racing secretary and such stenographers, clerks and
other office personnel as it may deem necessary to carry out the
duties imposed upon it under the provisions of this article
(b) There is created the position of the Director of Racing
whose duties include the management and administration of the State
Racing Office. The Director of Racing shall have a college degree
and at least ten years of experience in the operations of
thoroughbred and dog racing, and shall be appointed, by July 1,
2009, by the Governor and shall serve at the will and pleasure of
the Governor. No person may be appointed as Director of Racing who
has been convicted of a felony or crime involving moral turpitude.
(c) The director serves on a full-time basis and may not be
engaged in any other profession or occupation.
(d) The director:
(1) Shall have a good reputation, particularly as a person of
honesty and integrity, and shall favorably pass a thorough background investigation prior to appointment;
(2) The director may not hold political office in the
government of the state either by election or appointment while
serving as director; and
(3) The director shall be a citizen of the United States and
must become a resident of the state within ninety days of
appointment.
(b) (e) In addition to the employees referred to above The
Racing
Commission Director, with the approval of the Racing
Commission, shall employ, direct and define the duties of
persons
a chief clerk, director of security, director of audit, chief
chemist stewards to represent the Racing Commission, supervisors of
the pari-mutuel wagering conducted under the provisions of this
article, veterinarians, inspectors, accountants, guards and all
other employees deemed by the Racing Commission to be he or she
deems essential in connection with any horse or dog race meeting.
The Director of Audit shall be a certified public accountant or
experienced public accountant.
(c) (f) No individual shall knowingly be employed or be
continued in employment by the Racing Commission:
in any capacity
whatever:
(1) Who directly or indirectly, or in any capacity, owns or
has any interest, in any manner whatever, in any racetrack where
horse or dog race meetings may be held, including, but not limited to, an interest as owner, lessor, lessee, stockholder or employee;
(2) Who at the time is or has been within one year prior
thereto a member of the Legislature or an elective officer of this
state, unless he
or she is experienced and qualified as a racing
official; or
(3) Who has been or shall be convicted of an offense which,
under the law of this state or any other state or of the United
States of America, constitutes a felony, or is a violation of
article four, chapter sixty-one of this code. Any steward employed
by the Racing Commission or by a licensee shall be a person of
integrity, and experienced and qualified for such position by the
generally accepted practices and customs of horse or dog racing in
the United States.
(d) (g) The racing secretary and all other All employees
whose
functions are required or needed under the provisions of this
article of the Racing Commission shall serve at the will and
pleasure of the
Racing Commission Director.
The racing secretary
and the other employees referred to in this section as Employees of
the Racing Commission shall receive such compensation as may be
fixed by the Racing
Commission Director, with the approval of the
Racing Commission and within the limit of available funds.
and
shall be reimbursed for all reasonable and necessary expenses
actually incurred in the performance of their official duties.
(e) (h) All compensation and reimbursement for expenses of the members of the Racing Commission the racing secretary and all other
employees of the Racing Commission shall be paid from the funds in
the hands of the State Treasurer collected under the provisions of
this article and shall be itemized in the budget in the same manner
as all other departments of state government, but no reimbursement
for expenses incurred shall be paid unless an itemized account
thereof, under oath, be first filed with the State Auditor.
§19-23-6. Powers and authority of Racing Commission.
The Racing Commission has full jurisdiction over and shall
supervise all horse race meetings, all dog race meetings and all
persons involved in the holding or conducting of horse or dog race
meetings and, in this regard, it has plenary power and authority:
(1) To investigate applicants and determine the eligibility of
the applicants for a license or permit or construction permit under
the provisions of this article;
(2) To fix, from time to time, the annual fee to be paid to
the Racing Commission for any permit required under the provisions
of section two of this article;
(3) To promulgate reasonable rules
and regulations
implementing and making effective the provisions of this article
and the powers and authority conferred and the duties imposed upon
the Racing Commission under the provisions of this article,
including, but not limited to, reasonable rules
and regulations
under which all horse races, dog races, horse race meetings and dog race meetings shall be held and conducted, all of which reasonable
rules and shall be promulgated in accordance with the provisions of
article three, chapter twenty-nine-a of this code:
Provided, That
in accordance with article three, chapter twenty-nine-a, the Racing
Commission shall promulgate separate rules pertaining to the kinds
of legal combination wagers which may be placed in connection with
the pari-mutuel system of wagering authorized by this article;
(4) To register colors and assumed names and to fix, from time
to time, the annual fee to be paid to the Racing Commission for any
such registration;
(5) To fix and regulate the minimum purse to be offered during
any horse or dog race meeting;
(6) To fix a minimum and a maximum number of horse races or
dog races to be held on any respective racing day;
(7) To enter the office; horse racetrack; dog racetrack;
kennel; facilities;
training facilities and other places of
business of any licensee
or any training facilities to determine
whether the provisions of this article and
its reasonable rules
and
regulations are being complied with, and for this purpose, the
Racing Commission,
its racing secretary the Director of Racing,
representatives and employees may visit, investigate and have free
access to any such office, horse racetrack, dog racetrack, kennel,
facilities and other places of business;
(8) To investigate alleged violations of the provisions of this article, its reasonable rules, orders and final decisions and
to take appropriate disciplinary action against any licensee or
permit holder or construction permit holder for the violation
thereof or institute appropriate legal action for the enforcement
thereof or take such disciplinary action and institute such legal
action;
(9)
By reasonable rules and regulations, To authorize
stewards, starters and other racing officials to impose reasonable
fines or other sanctions upon any person connected with or involved
in any horse or dog racing or any horse or dog race meeting; and to
authorize stewards to rule off the grounds of any horse or dog
racetrack any
tout, bookmaker or other undesirable individual
determined
inimical detrimental to the best interests of horse and
dog racing or the pari-mutuel system of wagering in connection
therewith;
(10) To require at any time the removal of any racing official
or racing employee of any licensee, for the violation of any
provision of this article, any reasonable rule and regulation of
the Racing Commission or for any fraudulent practice;
(11) To acquire, establish, maintain and operate, or to
provide by contract for the maintenance and operation of, a testing
laboratory and related facilities, for the purpose of conducting
saliva, urine and other tests on the horse or dog or horses or dogs
run or to be run in any horse or dog race meeting, and to purchase all equipment and supplies considered necessary or desirable in
connection with the acquisition, establishment, maintenance and
operation of any testing laboratory and related facilities and all
such tests;
(12) To hold up, in any disputed horse or dog race, the
payment of any purse, pending a final determination of the results
thereof.
The commission shall promulgate a legislative rule which
establishes a procedure the provides a time frame for a decision on
a disputed race;
(13) To require each licensee to file an annual balance sheet
and profit and loss statement pertaining to the licensee's horse or
dog racing activities in this state, together with a list of each
licensee's stockholders or other persons having any beneficial
interest in the horse or dog racing activities of the licensee;
(14) To issue subpoenas for the attendance of witnesses and
subpoenas duces tecum for the production of any books, records and
other pertinent documents, and to administer oaths and affirmations
to such witnesses, whenever, in the judgment of the Racing
Commission, it is necessary to do so for the effective discharge of
its duties under the provisions of this article;
(15) To keep accurate and complete records of its proceedings
and to certify the same as may be appropriate;
(16) To take any other action that may be reasonable or
appropriate to effectuate the provisions of this article and
its reasonable rules
and regulations;
(17) To provide breeders' awards, purse supplements and moneys
for capital improvements at racetracks in compliance with section
thirteen-b of this article;
and
(18) To contract and be contracted with, plead and be
impleaded, sue and have and use a common seal; and
(19)
To hire three stewards, at each licensed race track,
whose duty it is to supervise any horse or dog race meeting. Each
race track shall reimburse the commission for the salary and
benefits of 1 steward at each race track.
(18) (20) To mediate on site, upon request of a party, all
disputes existing between the racetrack licensees located in this
state and representatives of a majority of the horse owners and
trainers licensed at the track which threaten to disrupt any
scheduled racing event or events. The Racing Commission shall,
upon the request of a party, mediate on site, all disputes existing
between racetrack licensees and representatives of pari-mutuel
clerks which threaten to disrupt any scheduled racing event or
events. When a request for mediation is made, the commission shall
designate from among its members one person to act as mediator in
each dispute that arises. Each opposing party involved in any
dispute shall negotiate in good faith with the goal of reaching a
fair and mutual resolution. The mediator may issue recommendations
designed to assist each side toward reaching a fair compromise: Provided, That no owner or operator or any horse owner or trainer
or any pari-mutuel clerk licensed at the track may be required to
abide by any recommendation made by any mediator acting pursuant to
this subsection.
The Racing Commission shall not interfere in the internal
business or internal affairs of any licensee.
(c) All special accounts and funds in this article that were
previously created and maintained in a banking institution of the
Racing Commission's choice shall be reestablished in the State
Treasury by July 1, 2010.
§19-23-15. Investigation by
the commission; suspension or
revocation of license or permit.
(a) The racing commission may conduct an investigation to
determine whether any provisions of this article or any of its
reasonable rules and regulations have been or are about to be
violated by a licensee or permit holder. The racing commission may
suspend or revoke a license or permit if the licensee or permit
holder:, as the case may be:
(1) Is convicted of an offense which, under the law of this
state, of any other state or of the United States of America, any
jurisdiction shall constitute constitutes a felony or a crime
involving moral turpitude;
(2) Is, if a corporation, dissolved under the law of this
state or ceases to be qualified to do business within this state; or
(3) Has a license or permit to which such the licensee or
permit holder is not lawfully entitled.
(b) The racing commission may also suspend or revoke a license
or permit of a licensee or permit holder, as the case may be, if it
finds the existence of any ground upon which the license or permit
could have been refused, or any ground which would be cause for
refusing a license or permit to such the licensee or permit holder
were such the licensee or permit holder then applying for the same.
(c) A majority of the stewards at any horse or dog race
meeting may suspend or revoke a permit for any reason for which the
racing commission may suspend or revoke a permit, as specified in
subsections (a) and (b) of this section, or for any other reason
authorized by reasonable rules and regulations promulgated by the
racing commission.
(d) Whenever a licensee fails to keep the bond required, if
any, under the provisions of section seven of this article in full
force and effect, the license of such the licensee shall
automatically be suspended unless and until a bond or other
security, if required, is furnished to the racing commission, in
which event the suspension shall be vacated.
(e) Any suspension of a license or permit shall continue for
the period specified in the order of suspension, or until the cause
therefor has been eliminated or corrected, as set forth in the order of suspension. Revocation of a license or permit shall may
not preclude application for a new license or permit, which
application shall be processed in the same manner and the
application approved or denied and the license or permit issued or
refused on the same grounds as any other application for a license
or permit is processed, considered and passed upon, except that any
previous suspension and the revocation may be given such the weight
in deciding whether to approve or deny such the application and
issue or refuse such the license or permit as is meet and proper
under all of the circumstances.
§19-23-16. Procedures for hearing; right of appeal.
(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 at any horse or dog
race meeting shall suspend or revoke a permit, such suspension or
revocation shall be effective immediately. The stewards 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 to stay or suspend the
execution of any order suspending or revoking a permit. The
racing commission may require the person demanding such 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 scheduled hearing
may be continued by the racing commission upon its own motion or
for good cause shown by the person demanding the hearing.
(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. For the purpose of conducting any such hearing,
any member of the racing commission shall have the power and
authority to issue subpoenas and subpoenas duces tecum as provided
for 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
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 attorney of record, if any.
(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.
(a) Hearings shall be governed by the provisions of article
five, chapter twenty-nine-a.
(b) The commission may conduct the hearing or elect to have an
administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law
judge, at the conclusion of a hearing he or she shall prepare a
proposed written order containing findings of fact and conclusions
of law. The proposed order may contain proposed disciplinary
actions if the commission so directs. The commission may accept,
reject or modify the decision of the administrative law judge.
(d) Any member of the commission has the authority to
administer oaths, examine any person under oath and issue subpoenas
and subpoenas duces tecum.
(e) If, after a hearing, the commission determines the
licensee has violated any provision of this article or the
commission's rules, a formal written decision shall be prepared
which contains findings of fact, conclusions of law and a specific
description of the disciplinary actions imposed.
§19-23-17. Hearing and judicial review.
Any person adversely affected by a decision of the racing
commission rendered after a hearing held in accordance with the
provisions of section sixteen of this article shall be entitled to
judicial review thereof. All of the pertinent provisions of
section four, article five, chapter twenty-nine-a of this code
shall apply to and govern such judicial review with like effect as
if the provisions of said section four were set forth in this
section, except that execution of a decision of suspension or
revocation of a license shall be stayed or suspended pending a
final judicial determination, and except that execution of a
decision of suspension or revocation of a permit shall not be
stayed or suspended pending a final judicial determination.
The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.
Legal counsel and services for the racing commission in all
appeal proceedings in any circuit court and the supreme court of
appeals shall be provided by the attorney general or his assistants
and in any circuit court by the prosecuting attorney of the county
as well, all 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 appeal proceedings.
Any licensee or permit holder adversely affected by a decision
of the commission entered after a hearing may obtain judicial
review of the decision in accordance with section four, article
five, chapter twenty-nine-a of this code, and may appeal any ruling
resulting from judicial review in accordance with article six,
chapter twenty-nine-a of this code.
NOTE: The purpose of this bill is to expand the membership of
the Racing Commission from three to five members and reorganizes
the administrative functions of the West Virginia Racing Commission
by establishing a State Racing Office and creating the position of
Director of Racing. The Director of Racing will be a gubernatorial
appointee and will be responsible for the daily management of the
authorities and responsibilities of the West Virginia Racing
Commission.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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