W. Va. Code R. § 178-1-24
Current through Register Vol. XLI, No. 24, June 14, 2024
Section 178-1-24 - [Effective until 7/21/2024] General Provisions Applicable to All Permit Applicants and Permit Holders24.1. Permit Required. The following provisions apply to permit requirements: 24.1.a. Racing participants and personnel; racing officials (excluding those employed by the Racing Commission); and, persons employed by the association or employed by a person or concern contracting with or approved by the association or Commission to provide a service or commodity on association grounds, shall have a valid occupational permit issued by the Racing Commission, unless otherwise specifically exempted from this requirement.24.1.b. Applicants for occupational permits shall file a completed application on a form prescribed by the Racing Commission with the license clerk stationed at the racetrack. Applications shall be reviewed by the stewards who may issue or deny the permit; hold the application for further investigation; or, refer it to the Racing Commission for a determination.24.1.c. The Racing Commission may designate categories of permit applications that require a determination of issuance or denial by the Commission and not the stewards. The Racing Commission may require, however, that the stewards provide a recommendation as to the issuance or denial of any such permit application.24.1.d. Applicants for occupational permits may be required to provide fingerprints for examination by the West Virginia State Police Criminal Investigation Bureau and the Federal Bureau of Investigation. If the applicant has been fingerprinted by the Racing Commission or another racing jurisdiction within the previous thirty-six (36) months, then the Commission may accept the previous fingerprints or require new fingerprints. If fingerprints are required to be provided by an applicant, the applicant shall provide a signed authorization for the release of information by the examining agencies. The costs of fingerprinting and fingerprint analysis shall be paid by the applicant.24.1.e. The Commission may issue permits to persons holding valid permanent (not temporary) permits/licenses issued by racing jurisdictions in North America. The applicant must be in good standing in each jurisdiction where he or she holds or has held a racing permit/license; have cleared a Federal Bureau of Investigation or Royal Canadian Mounted Police fingerprint check within the previous thirty-six (36) months, or such other period as may required by the Racing Commission; file an application; and, pay the required applicable fees prior to participating in racing.24.1.f. The fees that shall be paid to the Racing Commission for occupational permits issued effective for calendar year 2012 and thereafter are set forth in table 178-1A at the end of this rule.24.1.g. The Commission may assess an applicant or permit holder a credit card transaction fee in connection with the payment by credit card of any fees/costs under this subsection.24.1.h. An occupational permit is neither transferable nor assignable to any other person.24.1.i. The Racing Commission shall not grant an occupational permit to anyone under eighteen (18) years of age. Provided, except that an occupational permit may be granted at sixteen (16) years of age for the children and grandchildren of licensed permit holders; licensed permit holders being defined for the purposes of this subdivision as owners, breeders, trainers, jockeys and veterinarians. An applicant may be required to submit a certified copy of his or her birth certificate in connection with his or her application for a permit.24.1.j. The filing of an application for a permit shall authorize the Racing Commission to investigate criminal and employment records, to engage in interviews to determine the applicant's character and qualifications and to verify information provided by the applicant.24.1.k. The filing of an application for a permit shall authorize the Racing Commission to examine and determine the immigration status of the applicant through the United States Department of Homeland Security, United States Citizenship and Immigration Services, or their successors.24.2. Consent to Search and Seizure. The following provisions apply to permit holders' consent to search and seizure as a condition of holding a permit: 24.2.a. Members of the Racing Commission, the stewards, the Racing Commission veterinarian(s), the Racing Commission security officer, Racing Commission investigators, or persons authorized by them, have the right to inspect and search any person on association grounds who has been granted an occupational permit by the Racing Commission, as well as any stables, rooms, trailers, vehicles or other places or things within the association grounds.24.2.b. Members of the Racing Commission, the stewards, the Racing Commission veterinarian(s), the Racing Commission security officer and Racing Commission investigators have the right to seize any prohibited medication, drugs, paraphernalia or devices.24.2.c. By accepting an occupational permit, all permit holders are deemed to consent to the search and seizure provided for by this subsection.24.3. Substance Abuse/Addiction. 24.3.a. All permit holders shall be deemed to be exercising the privileges of their permit, and shall be subject to the requirements of this subsection when engaged in activities that could affect the outcome of a race or diminish the conditions of safety or decorum required in restricted areas or other areas of the association grounds.24.3.b. It shall be a violation to exercise the privileges granted by a permit issued by the Racing Commission if the permit holder:24.3.b.1. Is engaged in the illegal sale or distribution of alcohol or a controlled substance;24.3.b.2. Possesses, without a valid prescription, a controlled substance;24.3.b.3. Is addicted, having been determined to be so by a professional evaluation, to alcohol or other drugs and is not engaged in an abstinence-based program of recovery acceptable to the Racing Commission;24.3.b.4. Has in his or her possession on association grounds any equipment, products or materials of any kind which are used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled dangerous substance;24.3.b.5. Refuses to submit to urine or drug testing, when notified that such testing is based on a random drug testing procedure; is based on reasonable suspicion that the person is using drugs or alcohol; or, is based on the permit holder's acting as if in an impaired condition; or24.3.b.6. Presently has drugs (controlled substances) or alcohol in his or her body. With regard to alcohol, the results of a breathalyzer test showing a reading of more than .05 percent of alcohol in the blood shall be the criterion for a finding of alcohol present in the body. With regard to other controlled substances, the presence of the drug in any quantity measured by the testing instrument establishes the presence of the drug for purposes of this paragraph.24.3.c. At their discretion, the Racing Commission, the Executive Director, and/or the stewards may conduct random drug testing, as well as testing based on reasonable suspicion, in order to ensure safety on the racetrack.24.3.d. Random and reasonable suspicion drug testing of permit holders shall be accomplished by the taking of urine specimens. However, the Racing Commission, the Executive Director and/or the stewards retain the right to direct a permit holder to submit to a drug test by methods, including, but not limited to, blood, hair follicle, or skin.24.3.e. When conducted, random drug testing shall apply, equally, to all permit holders who are, at the time of the random testing, exercising the privileges of their permit in such ways as may affect the outcome of a race or diminish the conditions of safety or decorum required in restricted areas or other areas of the association grounds.24.3.f. No notice need be given as to the onset or cessation of random testing.24.3.g. Random drug testing shall be conducted at the direction of the Racing Commission, the Executive Director and/or the stewards on an unannounced basis before or after the beginning of a racing card. The names of all permit holders who are performing duties at the track on the date the random drug testing is conducted shall be placed in a secure container which shall be in the custody of a Racing Commission security officer or investigator. The Racing Commission security officer or investigator shall draw a designated number of names from the secure container. Representatives of any racing trade organizations representing permit holders on the racetrack may attend and witness the random selection of names.24.3.h. For race meetings with a duration of less than five (5) months, random drug testing shall occur at least once during the course of the meeting. For race meetings with a duration of six months or more, random drug testing shall occur at least twice during the meeting.24.3.i. If possible, each urine sample received from a permit holder shall be divided into two (2) separate parts. One part shall be designated as the "official permit holder test sample" and shall be tested by a Commission approved laboratory. The remaining part of the specimen shall be known as the "permit holder split sample" and shall be available for testing at a Commission approved independent laboratory upon the request of the permit holder who provided the specimen sample. All specimens taken by Commission representatives are under the jurisdiction of and shall remain the property of the Commission at all times.24.3.j. In the event that a permit holder is physically unable to provide a urine sample or enough of a urine sample to divide for a split sample, the Racing Commission, the Executive Director and/or the stewards may allow the permit holder to submit to another method of drug testing, including, but not limited to, blood, hair follicle, or skin, if any of such alternative methods are feasible.24.3.k. If the urine sample obtained from the permit holder is insufficient for division for a split sample, but sufficient for an official permit holder test sample to be tested by a Commission approved laboratory, then the results of tests performed on such official sample shall be considered prima facie evidence of the condition of the permit holder.24.3.l. Each sample or specimen collected from a permit holder shall be tested, at a minimum, for marijuana metabolites, cocaine metabolites, amphetamines, opiate metabolites, and phencyclidine (PCP). In certain reasonable suspicion scenarios or when it is otherwise determined that additional testing is necessary, permit holders may be required to produce additional samples that may be analyzed using additional screening panels.24.3.m. All costs of initial testing under this subsection shall be at the expense of the racing association. However, should the results of a test come back positive, the costs of the test may be assessed against the permit holder, upon approval by the stewards. All costs for the testing of a specimen or split sample portion made available for the permit holder shall be the financial responsibility of the requesting person.24.3.n. If a permit holder refuses to submit to urine or drug testing under this subsection or if a permit holder tests positive, his or her permit may be summarily suspended at the discretion of the stewards and/or may be subject to other disciplinary action in accordance with this rule. Physical inability to produce a urine sample shall not be considered to be a refusal to submit to drug testing.24.3.o. Upon completion of testing, the Commission approved laboratory shall make a confidential written report to the Executive Director and the stewards of any positive finding.24.3.p. Upon receipt of a written report containing a positive finding, the Executive Director or the stewards shall notify the permit holder. At that time, the permit holder shall also be notified of her or her right to request a split sample test within seventy-two (72) hours of such notification.24.3.q. If a permit holder elects to have split sample testing, he or she shall comply with the following: 24.3.q.1. The request shall be submitted in writing within seventy-two (72) hours of notification on a form prescribed by the Racing Commission.24.3.q.2. The permit holder shall be responsible for all charges and costs incurred in shipping, transporting and testing the split sample.24.3.r. A permit holder who fails to adhere to the requirements of subdivision 24.3.q. shall be deemed to have waived his or her right to have a split sample tested.24.3.s. The Racing Commission, the Executive Director, and/or the stewards shall provide for a secure chain of custody for the original sample and the split sample, if any, to be made available upon request to the permit holder.24.3.t. If the findings of the Commission approved independent laboratory fail to confirm the findings of the Commission approved laboratory, no action shall be taken against the permit holder.24.3.u. Unless or until the Commission and/or the stewards proceed to take action against a permit holder's permit for a positive test, the test results for the original sample and the split sample shall remain confidential and shall not be released.24.3.v. If a permit holder tests positive for a medication for which he or she has a valid prescription or it is otherwise learned by the Commission, the Executive Director or the stewards that a permit holder is taking a prescribed medication, the Commission, the Executive Director or the stewards may, in their discretion, require that the permit holder provide a statement from his or her prescribing physician as to whether the permit holder can safely perform the duties under his or her permit while taking the prescribed medication.24.3.w. A permit holder who is a first time violator under this subsection shall be required to undergo a professional assessment before the stewards and/or the Racing Commission determine whether or not the permit holder's condition is such that he or she may hold a permit and participate in racing. In the discretion of the stewards and/or the Racing Commission, a first time violator may be required to produce a negative test result; may be required to submit to further testing; and/or may be required to successfully complete a certified drug/alcohol rehabilitation program as a condition of holding a permit and participating in racing.24.3.x. A permit holder who is a second time violator under this subsection shall be subject to suspension. The permit holder may not apply for reinstatement of his or her permit until such time as he or she has successfully completed a certified drug/alcohol rehabilitation program and has otherwise satisfied the Racing Commission and/or the stewards that he or she is fit to hold a permit.24.3.y. A permit holder who is a third time violator under this subsection may be subject to revocation and may be deemed ineligible to apply for reinstatement of his or her permit for a period of time determined by the stewards and/or the Racing Commission. The Racing Commission and/or the stewards may determine what, if any, conditions a third time violator is required to meet in order to be considered for reinstatement of his or her permit.24.4. Employer Responsibility. The following provisions apply to the responsibility of employers who are occupational permit holders: 24.4.a. The responsibility of obtaining an occupational permit for an employee rests with the employer. Employment of an individual without reporting the employment to the stewards and immediately obtaining an occupational permit for the employee may subject the employer's occupational permit to fine, suspension or other discipline.24.4.b. No occupational permit holder may have in his or her employment, in any capacity, any employee less than eighteen (18) years of age, except where the employee has been issued a permit at age sixteen (16) pursuant to the exception specified in subdivision 24.1.i. of this rule.24.5. Workers' Compensation. The following provisions apply to workers' compensation coverage for occupational permit holders who are employers: 24.5.a. All occupational permit holders who are employers shall carry workers' compensation insurance covering their employees, unless exempted by state law.24.5.b. Occupational permit holders shall produce proof of coverage in the state of West Virginia or, if applicable, a letter of exemption from the West Virginia Insurance Commissioner or a notarized affidavit attesting that they have no employees, at the time of application for an occupational permit and may be required to produce proof of coverage or a letter of exemption or affidavit upon the request of the association or the stewards.24.6. Financial Responsibility. The following provisions apply to the financial responsibility of occupational permit holders:24.6.a. Applicants for occupational permits may be required to submit satisfactory evidence of financial responsibility.24.6.b. After an occupational permit has been issued, the applicant shall maintain a record of financial responsibility during the period for which an occupational permit is issued.24.7. Duration of Permit. The following provisions apply to the duration of occupational permits:24.7.a. Each occupational permit is for one (1) year unless otherwise approved by the stewards or the Racing Commission. Each permit shall be renewed according to the following schedule: Permits issued to persons whose date of birth is January 1 through and including April 30 shall be renewed no later than April 30 of each year; permits issued to persons whose date of birth is May 1 through and including August 31 shall be renewed no later than August 31 of each year; and permits issued to persons whose date of birth is September 1 through and including December 31 shall be renewed no later than December 31 of each year.24.7.b. An occupational permit holder who has been suspended and subsequently reinstated after the expiration of his or her occupational permit may not pursue his or her vocation until the stewards or the Racing Commission grants a new occupational permit.24.8. Conflict of Interest. The stewards or the Racing Commission may deny, suspend or revoke an occupational permit if a conflict of interest exists or could exist as a result of the issuance or holding of the permit.24.9. Permit Restrictions, Limitations and Conditions. The stewards or the Racing Commission may restrict, limit or impose any condition or conditions on an occupational permit that they consider necessary in their discretion to protect the best interests and integrity of racing.24.10. Permit Denial. When the denial of an occupational permit has been ordered by the Racing Commission, the Racing Commission shall report the reasons for the denial to the applicant and shall further report the denial to the Association of Racing Commissioners International, Inc., so that other racing jurisdictions may be informed of the denial.24.11. Grounds for Denial, Suspension or Revocation of Permit. The Racing Commission and/or the stewards may, in their discretion, refuse to issue or renew an occupational permit to an applicant, or may in their discretion suspend, revoke, or impose other disciplinary measures upon an occupational permit issued pursuant to this rule, if the applicant or permit holder:24.11.a. has been convicted of a crime in any jurisdiction. In considering the conviction, the Racing Commission and/or the stewards shall examine: 24.11.a.1. the nexus, or relationship, between the crime committed and the qualifications, functions or duties necessary to engage in an occupation in the racing industry;24.11.a.2. the nature and seriousness of the conduct;24.11.a.3. the individual's conduct since the events leading to the conviction;24.11.a.4. the individual's age and maturity at the time of the offense;24.11.a.5. the amount of time that has elapsed since the conviction;24.11.a.6. whether the conviction represented an isolated event;24.11.a.7. whether the individual demonstrates any consciousness of wrongdoing or remorse regarding the wrongfulness of his or her conduct; and24.11.a.8. any other factor the Racing Commission deems relevant to its inquiry.24.11.b. has engaged in bookmaking and/or touting;24.11.c. has demonstrated financial irresponsibility by having a judgment issued against him or her for failure to pay a debt owed as a result of obtaining feed, shelter, drugs, transportation, services for horses, veterinary services or supplies for himself or herself or others;24.11.d. has engaged in any fraud or misrepresentation in connection with racing, breeding and/or pari-mutuel wagering;24.11.e. has violated, attempted to violate, or knowingly aided and abetted the violation of any law, rule, ruling or order with respect to racing in West Virginia or any other jurisdiction;24.11.f. has disturbed the peace on association grounds;24.11.g. has used profane, indecent or vulgar language to any racing official;24.11.h. has written, issued, made or presented a check in payment for a permit fee, fine, nomination, entry or other racing fee, assessment, service or supply when the individual knew or should have known that the check would be refused for payment by the bank upon which it was written, or that the account upon which the check was written did not contain sufficient funds for payment of the check, or that the check was written on a closed account or nonexistent account;24.11.i. has allowed another to use his or her occupational permit or other racing credential for the purpose of transferring any of the benefits pertaining to the permit or credential;24.11.j. has had an occupational permit refused, denied, suspended, revoked or otherwise disciplined by any other racing jurisdiction;24.11.k. has failed to disclose or has falsely stated any information required in the application for a permit;24.11.l. is unqualified to perform the duties required by the holding of the permit;24.11.m. is ineligible for employment pursuant to federal or state law because of age or citizenship or is otherwise ineligible pursuant to the provisions of this rule;24.11.n. accepts or offers, directly or indirectly, any bribe, gift or gratuity in any form, which may influence the result of a race, or fails to report knowledge of this kind of activity immediately to the stewards or the Racing Commission;24.11.o. has violated any provision of this rule and/or the provisions of W. Va. Code § 19-23-1et seq.;24.11.p. has knowingly, or without conducting proper due diligence, sold a horse for slaughter, directly. "Due diligence: as used in this subdivision, shall mean the care and prudence that a reasonable racing permit holder should exercise to avoid selling a horse to a person or persons who may cause a horse to be conveyed to slaughter;24.11.q. has abandoned, mistreated, abused, neglected or engaged in an act of cruelty to a horse or any other livestock or domestic animals kept on association grounds, or has been convicted of animal cruelty in a court of competent jurisdiction;24.11.r. has caused, attempted to cause, or participated in any way in an attempt to cause the pre-arrangement of a race result, or has failed to report knowledge of this kind of activity immediately to the stewards or the Racing Commission;24.11.s. possesses on association grounds without the permission of the stewards any appliance or device, other than a riding crop allowed by this rule, which could be used to alter the speed of a horse in a race or workout;24.11.t. has violated any of the provisions contained in subsection 24.3. of this rule pertaining to substance abuse/addiction;24.11.u. has failed to return any purse money, trophies, or awards paid in error or ordered redistributed by the stewards and/or the Racing Commission;24.11.v. has made a material misrepresentation in the process of registering, entering or racing a horse as West Virginia owned, West Virginia bred, or West Virginia sired;24.11.w. has failed to pay a required fee, fine or cost;24.11.x. possesses on association grounds a needle, syringe or other injectable except as allowed by subdivision 48.2.c. of this rule;24.11.y. other than a practicing veterinarian, possesses on association grounds a medication, stimulant, sedative, depressant, local anesthetic or any other foreign substance prohibited by this rule;24.11.z. manufactures, attempts to manufacture or possesses a false permit or other racing identification document/badge;24.11.aa. tampers with or alters surveillance and/or security equipment and/or safety alarm/notification systems on association grounds;24.11.bb. has hired a person as an employee who does not have an occupational permit in violation of subsection 24.4.a. and/or has hired a person as an employee who is under the age allowed under subsection 24.4.b. of this rule;24.11.cc. has knowingly failed to disclose the complete ownership or beneficial interest in a horse entered to be raced;24.11.dd. has misrepresented or attempted to misrepresent facts in connection with the sale of a horse or other matter pertaining to the racing or the registration of a thoroughbred;24.11.ee. is a fugitive from justice;24.11.ff. has knowingly filed a false complaint against another permit holder and/or a racing official where the Racing Commission and/or the stewards determine that the complaint was made without reasonable or probable cause and for the purpose of harassment or abuse of the complaint process; or24.11.gg. has engaged in conduct unbecoming or detrimental to the best interests of racing.24.12. Badges. All occupational permit holders shall be issued a badge or credential by the association; shall visibly display their badge or credential at all times in restricted areas; and, are responsible for the safekeeping of their badge or credential. The association shall not issue duplicate badges or credentials except upon payment of a fee of five dollars ($5.00).24.13. Safety Equipment. The following provisions apply to the safety equipment required for occupational permit holders:24.13.a. Any permit holder mounted on a horse or stable pony on association grounds must wear a properly secured safety helmet at all times. The permit holder is responsible for providing sufficient evidence that his/her helmet meets or exceeds one of the following safety standards: American Society for Testing and Materials (ASTM 1163); UK Standards (EN-1384 and PAS-015); or, Australian/New Zealand Standard (AS/NZ 3838).24.13.b. Any person mounted on a horse or stable pony on the association racing surface, all assistant starters and anyone handling a horse in a starting gate must wear a safety vest at all times. The safety vest must comply with or exceed one of the following minimum standards: British Equestrian Trade Association (BETA): 2000 Level 1; Euro Norm (EN) 13158: 2000 Level 1; American Society for Testing and Materials (ASTM) F2681-08; Shoe and Allied Trade Research Association (SATRA) Jockey Vest Document M6 Issue 3; or, Australian Racing Board (ARB) Standard 1.1998.24.14. Knowledge of Rules. The following provisions apply to the responsibility of permit holders to be knowledgeable of the Racing Commission's rules and to report violations of such rules:24.14.a. A permit holder shall be knowledgeable of the rules of the Racing Commission; and by acceptance of a permit, agrees to abide by such rules.24.14.b. A permit holder shall report to the Racing Commission or the stewards any knowledge, or reasonable cause to believe that, he or she has that a violation of the Commission's rules has occurred or may occur. A permit holder failing to do so, or who does not report all material details regarding the violation or potential violation, shall be subject to discipline by the stewards and/or the Racing Commission up to and including revocation of his or her permit.24.15. Duty to Cooperate. By acceptance of a permit, a permit holder has a duty to cooperate with the Racing Commission, its Executive Director, its stewards, its security officers, its investigators and other employees, agents and representatives in any inquiry, investigation, review or proceeding. Cooperation shall include, but is not limited to, being truthful, candid and forthcoming when interviewed or questioned and providing any requested records, items or things in a prompt and timely manner. To prevent even the appearance that a permit holder is withholding pertinent information, he or she should avoid narrowly construing interview questions or requests for records, items or things. A permit holder's response to any inquiry should include any information that may be potentially relevant. Failure to cooperate shall be a violation of this rule and shall subject a permit holder to discipline by the stewards and/or the Racing Commission up to and including revocation of his or her permit.W. Va. Code R. § 178-1-24