Request By:
Mr. Carl B. Larsen
Deputy Commissioner
Kentucky Harness Racing Commission
369 Waller Avenue
Lexington, Kentucky 40504
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: James S. Goldberg, Assistant Attorney General
This letter is in response to your correspondence of May 20, 1977, in which you have asked this office for an opinion concerning a wagering problem that has arisen at the Midwest Harness Raceway. Specifically, you state that on the evening of May 17, 1977, the racing program at the Raceway included double perfecta wagering on the eighth and ninth races, commonly known as the "Big M." "The double perfecta is a form of pari-mutuel wagering in which the bettor selects the two (2) hourses that will finish first and second in each of two (2) consecutive races in the exact order as officially posted." 811 KAR 1:125, section 9 (1). The actual results of the two races that evening were a 7 & 2 finish in the eighth race and a 2 & 1 finish in the ninth race. However, at the conclusion of the ninth race, it was determined that there were no tickets exchanged on the winning combination of #2 and #1 and that there were none on the horse finishing first and that all tickets which included the #1 horse which finished second would share in the net pool. That announcement was made by the announcer over the public address system.
One of the mutuel ticket sellers by the name of James Meyers who operates the exchange ticket window in the mezzanine, switched the Big "M" exchange machine to a perfecta selling machine without informing the totalizator operator. Therefore, the Big "M" tickets which he exchanged went into the perfecta counters and the winning Big "M" ticket went into the perfecta pool so that it did not register as a Big "M" exchange. A check was immediately made of the printed take off sheets and it was discovered that a winning combination had been exchanged by James Meyers, the seller.
Immediately after the error was discovered, an announcement was made over the public address system that there was an exchange ticket in the winning combination of #2 and #1 and that the pay-off in the amount of $4068.60 would be made. That amount was paid to the holder of the winning ticket by the name of Benjamin Crider, 129 N. Main Street, Marion, Ky., who identified himself with proper identification and Social Security No. 400-30-0412.
It was not until the next day that anyone tried to collect on the All and #1 combination, which made it apparent that the announcement of the correct Big "M" had been heard. The incorrect All and #1 combination was not shown on the infield totalizator board. Consequently, you have asked this Office to determine, for pay-off purposes, the winning combination in the above-described incident.
In that regard, we first observe that neither the Kentucky statutes nor the regulations of the Commission on harness racing address themselves to the present situation. However, under 811 KAR 1:190, "[a]ny situation not covered by the rules and regulations of this commission shall be referred to the commission for disposition." Therefore, the Commission clearly has the authority to determine the outcome of this situation.
Under 811 KAR 1:125, section 5 (1), "[p]ayments due on all wagers shall be made in conformity with well established practice of the parimutuel system." In that regard, we note that "[a]lthough complete uniformity of rules of racing has not yet been attained throughout the racing states," Professor Wendell M. Basye, in his treatise entitled Racing Law, Volume III, pp. 42, 58 (1973), has provided a sample of racing rules that is "illustrative of the subject and scope of existing states' racing rules." Specifically, section 112 of Professor Basye's sample racing rules states:
"When the result is 'Official' that word shall be flashed on the result board and shall signify that the placing of the horses at that time by the judges is final insofar as the pay-off is concerned. If any change be made in the order of finish of a race after the result is so declared 'Official,' it shall not affect the pay-off. . . ."
We would, therefore, conclude that, for pay-off purposes on the double perfecta wagering, the "official" winner was the holder of the ticket with the 7-2-2-1 combination.
We hope that this opinion will satisfactorily answer all your questions. If we can be of any further service, please do not hesitate to call upon us.