Could Kentucky’s horse racing commission enforce a medication protocol before adopting it as an administrative regulation?

Plain-English summary

The Kentucky Attorney General concluded in 2014 that the Horse Racing Commission could not enforce a proposed race medication protocol before adopting it as an administrative regulation under KRS Chapter 13A. The commission had broad power over racing, but the AG said it remained subject to the state’s rulemaking procedure.

The proposal addressed furosemide use before a race, let racing associations require compliance as a condition of a race, and set penalties. The AG reasoned that those terms affected licensees’ rights and practices, so they were not merely internal agency management.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the commission put the proposed medication protocol into force through a committee discussion?

The AG said no. It concluded that the protocol had to go through Chapter 13A rulemaking before the commission could enforce it.

Did the commission’s broad racing authority exempt it from state rulemaking law?

No. The opinion treated the commission as an administrative body under KRS Chapter 13A, despite its broad statutory authority over horse racing.

Why was this protocol an administrative regulation?

The AG said it affected the rights and practices of commission licensees. It was not confined to the agency’s internal management.

Background and statutory framework

The Kentucky Horsemen’s Benevolent and Protective Association asked about a proposed “International medication protocol as a condition of race.” The AG relied on KRS 13A.350(1) for Chapter 13A’s reach, KRS 13A.100(1) for policies requiring promulgation, and KRS 13A.330(1) for when a filed regulation became effective. It cited Bowling v. Kentucky Dept. of Corrections, 301 S.W.3d 478, 489 (Ky. 2009), for the distinction between public-facing rules and internal management.

Citations and references

Statutes: KRS 13A.350(1); KRS 13A.100(1); KRS 13A.330(1).

Case cited: Bowling v. Kentucky Dept. of Corrections, 301 S.W.3d 478, 489 (Ky. 2009).

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Pages/Opinions.aspx
• Original Word document: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG14-004.doc

Original opinion text

OAG 14-004

October 31, 2014

Subject: Whether the Kentucky Horse Racing Commission is required to promulgate its administrative regulations in accordance with KRS Chapter 13A

Requested by: Martin Maline, Executive Director

Kentucky Horsemen’s Benevolent and Protective Association, Inc.

Written by: Matt James

Syllabus: The Kentucky Horse Racing Commission is required to promulgate its administrative regulations in accordance with KRS Chapter 13A. The Kentucky Horse Racing Commission may not enforce its administrative regulations until they have been adopted under the procedures of KRS Chapter 13A.

Statutes construed: KRS 13A.010, KRS 13A.350, KRS 230.215, KRS 230.225, KRS 230.360

Opinion of the Attorney General

Martin Maline, Executive Director of the Kentucky Horsemen’s Benevolent and Protective Association, Inc., has requested an opinion of this office on whether the Kentucky Horse Racing Commission (“KHRC”) is required to promulgate its administrative regulations in accordance with KRS Chapter 13A. We advise that KHRC is required to promulgate its administrative regulations in accordance with KRS Chapter 13A. KHRC may not enforce its administrative regulations until they have been adopted under the procedures of KRS Chapter 13A.

On Aug. 27, 2014, KHRC’s Rules Committee held a meeting to discuss a proposed regulation. The regulation is entitled “International medication protocol as a condition of race.” It defines “International Medication Protocol” as forbidding the administration of furosemide less than twenty-four (24) hours prior to a race, allows racing associations to require compliance with the International medication protocol as a condition of a race, and establishes penalties for violations. The Rules Committee took no action regarding the proposed regulation, but discussed whether it could be made effective for the Keeneland season in October of 2014. At issue is whether KHRC is required to submit this proposed regulation as an administrative regulation in compliance with KRS Chapter 13A.

KRS 230.225(1) creates the KHRC, providing that “the Kentucky Horse Racing Commission is created as an independent agency of state government to regulate the conduct of horse racing and pari-mutuel wagering on horse racing, and related activities.” KRS 230.215(2) provides, “it is hereby declared the purpose and intent of this chapter . . . to vest in the racing commission forceful control of horse racing in the Commonwealth with plenary power to promulgate administrative regulations prescribing conditions under which all legitimate horse racing and wagering thereon is conducted in the Commonwealth.” KRS 230.260(8) further provides, “the racing commission shall have full authority to prescribe necessary and reasonable administrative regulations and conditions under which horse racing at a horse race meeting shall be conducted in this state.” Various other provisions in KRS Chapter 230 specify matters that are required to be promulgated as administrative regulations, and penalties for violating administrative regulations. “A primary purpose for the existence of the Racing Commission is to assure the probity of every aspect of the enterprise. . . . One can scarcely conceive of a broader statutory grant of regulatory authority.” Compton v. Romans, 869 S.W.2d 24, 27 (Ky. 1993).

KRS 13A.350(1) provides, “the provisions of this chapter shall apply to all grants of authority to promulgate administrative regulations and no administrative regulation shall be promulgated or adopted unless in conformity with the provisions of this chapter.” KRS 13A.010(1) provides, “‘administrative body’ means each state board, bureau, cabinet, commission, department, authority, officer, or other entity . . . authorized by law to promulgate administrative regulations.” KHRC is “an independent agency of state government . . . and the composition of its membership by gubernatorial appointment renders it fully comparable to a cabinet-level department.” Compton, 869 S.W.2d at 27. KHRC is thus an “administrative body” under KRS 13A.010(1), and KRS 13A.350(1) requires that all administrative bodies granted the authority to promulgate administrative regulations must comply with the provisions of KRS Chapter 13A. KHRC is thus required to promulgate its regulations in compliance with the provisions of KRS Chapter 13A.

KRS 13A.100(1) provides that an agency must promulgate into administrative regulations, “each statement of general applicability, policy, procedure, memorandum, or other form of action that implements; interprets; prescribes law or policy; describes the organization, procedure, or practice requirements of any administrative body; or affects private rights or procedures available to the public.” KRS 13A.010(2) similarly defines “administrative regulation,” and lists the exceptions which an agency is not required to promulgate into regulations, including “statements concerning only the internal management of an administrative body and not affecting private rights or procedures available to the public.” KRS 13A.010(2)(a). The test for whether a statement concerns only the internal management of an administrative body is whether it is “an issue ‘purely of concern’ to the Department and its staff” and whether “the Legislature intended that the agency be free to adopt, change, or abrogate the Directive at will, without any public input or legislative review.” Bowling v. Kentucky Dept. of Corrections, 301 S.W.3d 478, 489 (Ky. 2009). The regulation under consideration here is not one that is purely of concern to the agency and its staff, but one that affects the rights and practices of licensees of KHRC, and is not one that the Legislature intended to allow the KHRC to change at will without any review. Accordingly, if KHRC wishes to enforce the regulation concerning the International Medical Protocol, it must promulgate the regulation according to the procedures in KRS Chapter 13A.

KRS 13A.330(1) specifies the conditions under which a filed administrative regulation becomes effective, and the effective date of the administrative regulation. “An administrative rule or regulation is operative and binding on those coming within its terms only from its effective date . . . .” 73 C.J.S. Public Administrative Law and Procedure § 222. Since KHRC is required to comply with KRS Chapter 13A to promulgate the procedures specified in the International Medical Protocol regulation, and those procedures cannot be enforced prior to the effective date specified by KRS 13A.330(1), KHRC cannot enforce the standards specified in the regulation until it has been adopted under the procedures of KRS Chapter 13A.

In summary, KHRC is required to promulgate all statements of general policy that affect private rights or procedures into administrative regulations using the procedures of KRS Chapter 13A. KHRC may not enforce administrative regulations until they have been adopted under the procedures in KRS Chapter 13A.

JACK CONWAY

ATTORNEY GENERAL

Matt James

Assistant Attorney General