Horsemen seek to undo agreement

CHARLES TOWN – Members of the Charles Town Horsemen’s Benevolent and Protective Association have gone to court aiming to undo a pact between the state’s Racing Commission and its Lottery Commission.

[cleeng_content id="435416199" description="Read it now!" price="0.49" t="article"]David Hammer, who is representing the HBPA, has described the new agreement as “the takeover of the Racing Commission by the Lottery Commission.”

The HBPA on Monday filed a writ of mandamus with the West Virginia Supreme Court of Appeals, asking that the interagency agreement be thrown out.

David Hammer

David Hammer

“This interagency agreement takes from the Racing Commission not only the ability to promulgate regulations and provide interpretation of regulations,” Hammer said, “but shifts all that work away from the Attorney General and over to in-house counsel at the Lottery Commission.”

Citing the litigation, both Racing and Lottery Commission officials declined to comment for this story.

Last month, Racing Commission member Bill Phillips of Elkins told Tom LaMarra of BloodHorse Magazine that the interagency agreement was not a takeover by the Lottery Commission.

He said the agreement had been designed to preserve the independence of the Racing Commission, and only allowed it to seek technical assistance from the Lottery Commission.

“That’s a key issue for the horsemen,” Hammer explained. “The Racing Commission controls every aspect of the horsemen’s business.”

Because the Racing Commission exerts enormous influence over horsemen’s lives, Hammer explained, the horsemen have a large stake in the fairness of its proceedings.

“The county is full of small businesses – farmers and trainers – that train horses for the track, and they have to have occupational permits for everything that they do,” Hammer said. “If they lose an occupational license or permit through disciplinary action, they lose it not only here but everywhere. They can’t race anywhere in the country.”

“They have the right to enter your business unannounced without a warrant, inspect, check your animals, etc. So it is critical to the horsemen that those functions are performed fairly, with due process and in a neutral way with no tilt toward one person or another person.”

Hammer said the agreement cuts the Attorney General’s Office out of a process of which it has long been a part.

“The ‘no tilt’ comes from the fact that the Attorney General is the legal representative of the horsemen and has been for a very long time,” he said. “The Attorney General will have to be involved one way or another, and I really expect that they will come out on the same side as us on this issue.”

Attorney General Patrick Morrisey’s media representative said the office is reviewing the case but is not yet prepared to comment.

Hammer argues that the agreement violates the state Constitution.

“We think it is a violation of the separation of power clause for the executive to take activities designated by the Legislature and give them to someone else,” he said.

“The Legislature decided what the Racing Commission’s function is, and likewise the Legislature has decided what the Lottery Commission’s function is,” he said, pointing out that the Lottery Commission deals primarily with slots, table games and other lottery games while the Racing Commission oversees horse and dog racing. “Those two functions don’t overlap.”

Hammer says there is reason to believe that proceedings could not be more fair if overseen by the Lottery Commission. “There is a long history of (investigations and disciplinary actions already) being done fairly and cooperatively for the benefit of horse racing,” he said. “It makes sure that the integrity of racing is protected and makes sure things are handled fairly.”

Horsemen say they fear that a perceived close relationship between the Lottery Commission and Hollywood Casino at Charles Town Races, owned by Penn National Gaming Inc., could taint that process.

“The Lottery Commission, through whatever influences and whatever interests it has – and they are very close to PNGI – will decide what is to be done in a particular instance with a particular rule,” Hammer said. “They won’t do it publicly. They’ll do it privately. They’ll communicate that through their in-house counsel, who will direct the Racing Commission to do what they say.”

Hammer says he sees a number of concrete situations – including upcoming contract negotiations between the HBPA and the track – in which a changed regulatory regime could harm horsemen.

“Right now the track – PNGI – has announced plans to split into two separate entities. One will own all the real estate at Charles Town (Races),” he said. “The other will hold the gaming licenses.”

“Currently, we have a contract that expires at the end of this year that says the horsemen get 240 free stalls. When that contract goes into negotiations here in a few months, I think what is probably going to happen is the holder of the gaming license is going to say, ‘If you want free stalls, we don’t own them anymore. You’ll have to talk to the real estate investment trust that owns the land.’”

“Then the investment trust will say, ‘Sorry, we don’t want to let you use the land for that purpose. You don’t get your barn area, and we’re not subject to the jurisdiction of the Racing Commission because we don’t own a racing license. We are just the owner of the land. Oh, and, by the way, here is your no-trespassing notice. Get off of our property.’”

Hammer says the regulatory changes should be of concern to the county as a whole.

“This is of enormous importance to many small businesses, because, if racing becomes a part-time activity – say 60 days of racing instead of the current 235 days – then people who have invested their life savings to build up farms and make a go at this business will not be able to do that in Jefferson County.”

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