Section 294-7.001 - DISCIPLINARY HEARINGS7.001.01 A person or persons may request review by the Racing Commission when penalized or disciplined under the law or under these rules. 7.001.01A A final appeal in the case of any person penalized or disciplined by the stewards of an association racing under a license issued by the Commission, may be taken to the Commission.7.001.01B Such appeal must be filed in writing at the office of the Commission within five (5) days of the date of said penalty or imposition of said discipline.7.001.01C The request shall be signed by the person making it and must set forth reasons why said hearing should be granted.7.001.01D Any applicant for a hearing will be heard in person or by counsel or the case may be submitted in writing.7.001.01E All complaints and requests to the Commission must be in writing and all papers filed with the Commission shall become the property of the Commission.7.001.01F An appeal from a decision of a racing official to the Commission shall not affect such decision until the appeal has been acted upon by the Commission unless otherwise ordered by a court of competent jurisdiction (See Chapter 12-001.02 and Revised Statutes of Nebraska Chapter 2, Article 12). 7.001.02 The following types of hearings are to be governed by this chapter:7.001.02A Any hearing initiated by the Racing Commission upon its own motion pursuant to any matter within its jurisdiction.7.001.02B Any hearing initiated by any person upon written request received by the Racing Commission pertaining to revocation of any license required by Statute or by the Rules of Racing.7.001.02C Written request for the promulgation, amendment or repeal of any Rule of Racing, or a request for a declaratory ruling that any of the Rules of Racing do or do not apply to any person, property or state of facts.7.001.03 Before any hearing, reasonable notice shall be given to all interested parties. Such notice shall be in writing and shall state the time, place and nature of such hearing and the issues and subject matter to be covered and discussed. 7.001.03A In all contested cases, such written notice shall be given in person or sent to such parties by certified or registered mail to the local and/or permanent address appearing on said party's license application and shall contain a statement of the nature of the charges against such person and shall cite by number the Statutes or Rules allegedly violated.7.001.03B In Rule 7.001.08 appeals from contested cases heard by the stewards pursuant to Rules 6.001 and 6.002 notice shall be achieved in the same fashion prescribed for contested cases except that mailed written notice need neither be certified nor registered.7.001.04 If such notice is required to be given to any entity other than an individual, such notice shall be sent to the principal place of business or to the registered agent of such entity.7.001.05 A contested case shall mean any proceedings before the Racing Commission in which the legal rights, duties or privileges of a specific party are required by law or constitutional right to be determined only after hearing.7.001.06 In the case of a hearing for the promulgation, amendment, or repeal of any rule, or for other than a contested case, such notice shall be sufficient without being mailed as provided herein if such notice be given at least thirty (30) days prior to such hearing by publication in a newspaper having general circulation in the state, PROVIDED THAT, such notice by publication and hearing may be waived by the Governor in writing.7.001.07 There are no prescribed procedural forms for use in practice before the Racing Commission, but all matters shall be submitted in writing unless otherwise provided in Chapter 7.001 through 7.002.05 and where appropriate, may be supported by affidavit, documents, data or similar evidence.7.001.08(1) Unless paragraph (4) applies, any appeal taken from a stewards hearing in which Rule 6.002 procedures were provided shall not be treated as a contested case requiring de novo hearing by the Racing Commission so long as:(a) the penalty imposed was neither license suspension nor revocation;(b) the state steward was one of the stewards who presided at the hearing; and(c) the decision of the stewards was unanimous both as to deciding that the charged person committed a rule violation and on the penalty to be imposed.(2) On appeal of a stewards decision covered by this rule, the Racing Commission shall confine its review to the record and exhibits from the stewards hearing, the written stewards statement, and any briefs that were submitted. The Commission shall permit the filing of briefs and shall allow a reasonable time before hearing an appeal to permit such filing.(a) Opportunity shall be provided to the charged person and the case presenter in person or through counsel to review the recording or transcript of the stewards hearing, but it shall not be necessary to produce a written transcript of the recording or a copy of transcribed stenographic notes unless requested by the charged party, in which case the request shall be made within five (5) days of the decision of the stewards and shall be accompanied by a tender of the costs of preparation. A requested transcript shall be provided within a reasonable time before the appeal is heard by the Racing Commission.(b) Opportunity to present oral argument shall be afforded to the case presenter either in person or through counsel appointed by the Racing Commission and the charged person either in person or through retained counsel or other personal representative, except that the Racing Commission shall not appoint counsel for the case presenter in any case in which the charged person is unrepresented by counsel.(c) The Racing Commission shall reverse or modify a decision of or penalty imposed by the stewards only if it decides that such decision was unsupported by substantial evidence in the record or was clearly erroneous or arbitrary and capricious. The Racing Commission shall prepare and sign a written statement of its findings, including a record of the vote.(3) If an appeal is filed from a decision of the Racing Commission rendered under this rule, the Racing Commission shall prepare an official record that shall include the record of the stewards hearing and any exhibits that were introduced as well as the written statement of the stewards and the written decision of the Racing Commission, but it shall not be necessary to produce a written transcript of any recording of the stewards hearing or additional copies of the transcribed stenographic notes unless requested by the charged party, in which case such request shall be requested not more than five (5) days after the final decision of the Racing Commission and shall be accompanied by a tender of the costs of preparation.(4) Notwithstanding paragraphs (1), (2), and (3), a Commission review hearing may be held de novo when:(a) the Racing Commission on an independent review of the record decides that the record is inadequate to permit reasoned review;(b) a charged person makes a substantiated claim of bias against one or more of the stewards presiding at the hearing;(c) a charged person makes a credible claim that a witness did not testify because his presence was available only through Commission subpoena and makes a substantiated case regarding the necessity of the witness;(d) a charged person makes a credible claim that a witness who testified against him at the stewards hearing was one whose testimony should have been excluded under a claim of privilege recognized under the Nebraska Rules of Evidence as vesting a right to demand such exclusion in a party to a hearing.(e) new evidence is available that was not reasonably available at the time the stewards hearing was held.7.001.09 Any person, except persons other than the charged person and case presenter described in Rule 7.001.08, appearing at any hearing held pursuant to these rules has the right to appear personally and to be represented by counsel or may, in the alternative, appear by and through such counsel or other personal representative.7.001.10 Except for appeals of stewards decisions covered by Rule 7.001.08, at any hearing held pursuant to these rules, opportunity shall be afforded all parties to present evidence and argument with respect to the issues and subject matter of the hearing. The Racing Commission shall prepare an official record which shall include testimony and exhibits in a contested case, but it shall not be necessary to transcribe shorthand notes unless requested for the purpose of appeal, in which event such transcript shall be requested not more than five (5) days after the final decision of the Racing Commission and such request shall be accompanied by a tender of the costs of preparation. Informal disposition may also be made of any contested case by stipulation, agreed settlement, consent order or default. 7.001.10A(1) At hearings held pursuant to Rule 7.001.10 the Racing Commission may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs. It shall give effect to the rules of privilege recognized by law. It may exclude incompetent, irrelevant, immaterial and duly repetitious evidence, PROVIDED, that any party to a formal hearing, from which a decision may be appealed to the courts of this state, may request that the Racing Commission be bound by the rules of evidence applicable in District Court by delivering to the Racing Commission at least three (3) days prior to the holding of such hearing a written request therefore, such request to include the requesting party's agreement to be liable for the payment of costs incurred thereby and upon any appeal or review thereof, including the cost of court reporting services which the requesting party shall procure for the hearing. All costs of a formal hearing shall be paid by the party or parties against whom a final decision is rendered.(2) A person charged with a rule violation may not be compelled to provide information at a de novo hearing conducted by the Racing Commission but silence by such licensee may be used to draw inferences adverse to the charged person regarding whether he committed the rule violation with which he is charged.7.001.10B At hearings held pursuant to Rule 7.001.10 -the Racing Commission may administer oaths, issue subpoenas, compel the attendance of witnesses and the production of any papers, books, accounts, documents, and the testimony and cause the depositions of witnesses residing either within or without the state to be taken in the manner prescribed by law for taking depositions in civil actions in the District Court. Any depositions so taken may be used as in civil cases in the District Court. Any party in a contested case shall have the right to obtain from the Commission a subpoena for any witnesses which may be desired at such hearing.7.001.10C At hearings held pursuant to Rule 7.001.10 the evidence, including records, documents and the like in the possession of the Racing Commission of which it desires to avail itself, shall be offered and made a part of the record in the case. No other factual information or evidence shall be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts or by incorporation by reference.7.001.10D At hearings held pursuant to Rule 7.001.10 every party may cross examine any witness who testifies against him, except that his right of cross examination does not prevent hearsay testimony and evidence that is otherwise admissible under Rule 7.001.10 A. Every party shall have the right to cross-examine witnesses who testify and shall have the right to submit rebuttal evidence.7.001.10E At hearings held pursuant to Rule 7.001.10 the Racing Commission may take notice of judicially cognizable facts and in addition may take notice of general, technical, or scientific facts within its specialized knowledge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material so noticed. There shall be afforded an opportunity to contest the facts so noticed. The Racing Commission may utilize its experience, technical competence and specialized knowledge in the evaluation of the evidence presented to it.7.001.10F At hearings held pursuant to Rule 7.001.10 the Racing Commission may require the submission of briefs to aid it in the determination of any issue at a hearing. Any party desiring to submit such a brief may do so by indicating to the Commission before or during such a hearing and obtaining leave to file such a brief. The time in which such briefs shall be filed shall be fixed at the time of the Commission's request for such briefs, or upon the granting of a party's request to so file.7.001.10G At hearings held pursuant to Rule 7.001.10 the Racing Commission shall render its final decision stating its findings of fact and conclusions of law pursuant to Chapter 7.001.15 not later than ten (10) days after the hearing in any contested case.7.001.11 Every decision and order adverse to a party to the proceeding rendered by the Racing Commission in a contested case shall be in writing or stated in the records and shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the conclusions upon each contested issue of fact. Parties to the proceeding shall be notified of the decision and order in person or by registered or certified mail, return receipt requested. A copy of the decision and order and accompanying findings and conclusions of law shall be delivered or mailed upon request to each party or the attorney of record. The date of notification shall be the date such party is notified in person or the date mailed notice so received, as evidence by the return receipt, whichever is applicable. PROVIDED THAT such mailed notice shall be effective from the date of mailing if sent to the last known address of such party in the possession of the Racing Commission if such mailed notice be returned undelivered for any reason. In Rule 7.001.08 appeals from contested cases heard by the stewards pursuant to Rules 6.001 and 6.002 notice of the decision and order and the effect of such notice shall be handled in the same fashion prescribed for contested cases under this rule.
7.001.12 Any party desiring a continuance shall, either upon receipt of a notice of hearing or as soon thereafter as possible, notify the Racing Commission in writing of such desire and shall set forth the reasons why such a continuance should be granted. Granting of a continuance lies within the sound discretion of the Racing Commission and shall be granted only for good cause shown, PROVIDED THAT the Racing Commission may at any time order continuances on its own motion.7.001.13 The Racing Commission may designate any person or persons to make such investigations as they deem necessary to assist with the determination of any matter within its jurisdiction. In a contested case, all parties shall receive written notice that such investigation has been ordered by the Commission. Such notice shall state the name or names of the person or persons designated to conduct such investigation, and a general statement of the nature and purpose of such investigation. Any findings or exhibits resulting from such an investigation may be included and become a part of the evidence on record of any hearing pursuant to Chapter 7.001.10 and 7.001.17. The results shall be made available to any party upon written request. 7.001.13A The Racing Commission shall render its final decision in an appeal under Rule 7.001.08 not later than ten (10) days after hearing oral argument in the appeal, not later than fifteen (15) days after submission of briefs in the event there is no oral argument, and not later than twenty (20) days after receiving written request for an appeal in the event no briefs are to be filed.7.001.14 Any party aggrieved by the final decision of the Commission may request a rehearing within six (6) days after such party shall have been notified of the decision of the Commission pursuant to Chapter 7.001.11. Granting of the motion for rehearing lies within the sound discretion of the Commission, and the Commission shall notify such requesting party within six (6) days of the decision on such motion, PROVIDED THAT the granting of a motion for rehearing shall not stay the enforcement of the decision of the Racing Commission.7.001.15 Any party aggrieved by the decision of the Racing Commission after the hearing, rehearing or denial of a rehearing may appeal to a District Court of the State pursuant to Chapter 84, Article IX, R.R.S., Nebraska 1943, PROVIDED THAT such appeal shall not stay the enforcement of the Racing Commission.7.001.16 In any hearing pursuant to these rules, the Racing Commission may in its discretion appoint a hearing examiner, either one member of the Commission or other qualified individual, to conduct such hearing. Such examiner shall make recommendations in writing to the Commission and such recommendations shall become a part of the record of the case pursuant to Chapter 7.001.10 C and Chapter 7.001.24. For purposes of stewards hearings heard on appeal pursuant to Rule 7.001.08, the stewards are designated herein as hearing examiners in the original stewards hearing.
7.001.17 Any party aggrieved by an action of the stewards pursuant to Chapter 6 of these rules may prosecute an appeal to the Racing Commission pursuant to Chapter 7.001.02 B which appeal must be filed within five (5) days of the date that the penalty was imposed pursuant to Chapter 7. Stewards hearing conducted to consider a decision by an association to exclude a horseracing industry or licensee participant for business judgment reasons pursuant to Rule 6.004 do not constitute hearings in which a party is aggrieved by an action of the stewards; decisions in such hearing are not appealable to the Racing Commission.7.001.18 Such an appeal from an action of the stewards must be signed by the party prosecuting such appeal and shall set forth such party's reasons for believing said party is entitled to relief.7.001.19 Unless a charged person requests more time to file a brief in an appeal held pursuant to Rule 7.001.08, the Racing Commission shall set an appeal from a stewards hearing for hearing before the commission not more than thirty (30) days from the time the request for appeal was received. Notice of such hearing shall be given in accordance with Chapter 7.001.03.7.001.20 An appeal to the Racing Commission from a penalty imposed by the stewards shall not stay the enforcement or effect of the decision of the stewards, unless otherwise ordered by a court of competent jurisdiction or the Commission.7.001.21 Except for appeals held pursuant to Rule 7.001.08 the hearing of all contested cases before the Racing Commission shall be de novo.7.001.22 Any interested party may petition the Racing Commission at any time to request promulgation, amendment or repeal of any rule of the Commission, including those procedural rules set forth in this chapter. Such petition shall set forth a proposed draft of the rules or amendment the petitioner seeks to promulgate or state the exact section of the rules the petitioner desires repealed. In addition, the petitioner shall set forth reasons for requesting the desired action. The Commission shall set such petition for hearing and shall give notice pursuant to Chapter 7.001.03 and Chapter 7.001.06.7.001.23 Except for appeals held pursuant to Rule 7.001.08 in any hearing before the Commission, any interested person or persons may appear personally or by representative to submit their views orally or in writing. Such written presentations may be forwarded to the Commission prior to the date of hearing.7.001.24 Any and all writings, testimony, data, exhibits, records, documents or the like presented to or filed with the Commission shall become the property of the Commission and shall be make a part of its record if the Commission chooses to avail itself of the same. If such material is so availed, or forms any basis of the final decision of the Commission it shall be made a part of the record of the case pursuant to Chapter 7.001.10 C.7.001.25 Any interested person may petition the Racing Commission and request a declaratory ruling with respect to the applicability to any person, property or state of facts or any rule or statute enforceable by the Commission. Said petition shall be in writing and signed by the petitioner and shall set forth the person, property or state of facts or any rule or statute enforceable by the Commission. Said petition shall be in writing and signed by the petitioner and shall set forth the person, property or state of facts upon which the petitioner desires a ruling. The Commission shall set a time and a place for such hearing and shall give notice pursuant to Chapter 7.001.03.294 Neb. Admin. Code, ch. 7, § 294-7.001