Request By:
Mr. Edward H. Flint
President
Horsemen's Benevolent and
Protective Association
700 Dudley Pike
Edgewood, Kentucky 41017
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Elizabeth E. Blackford, Assistant Attorney General
You have sought reconsideration by this office of the question of the Kentucky State Racing Commission's power to grant Latonia's request for an award of additional racing dates from November 27 - December 31, 1979. The request for these dates was submitted in August of 1979. You have pointed out that Latonia had to cancel seven of its regularly scheduled dates due to inclement weather. Therefore, you wish to know whether the Commission would have the power pursuant to the "make-up award" exception to KRS 230.300(2) to award the requested dates.
KRS 230.300(2) provides in part:
"(2) The commission shall as soon as practicable, but in no event later than March 1 in any calendar year award dates for racing in the Commonwealth during the year. In the event scheduled racing is canceled by reason of flood, fire, or inclement weather, the commission may award after March 1 additional racing dates to make up for those dates canceled by such flood, fire, or inclement weather. "
In seeking a determination of the extent of the Commission's authority under the make-up exception, we must examine the purpose of the March 1 deadline and of the exception thereto, and must examine the evil(s) these provisions severally and jointly are intended to remedy. Cf. Brown v. Hobitzell, Ky., 307 S.W.2d 739 (1958); George v. Alcololic Beverage Control Board, Ky., 421 S.W.2d 569 (1967).
By fixing the March 1 deadline the legislature has clearly demonstrated its intent that the Commission shall decide who shall be awarded what dates by that time, and that, under ordinary circumstances, that decision shall be final. Cf. Burkshire Down, Inc. v. State Racing Commission, 350 Mass. 695 (1966). Obviously, this is designed to prevent ongoing battles for dates. Coversely, it is designed to promote orderly procedure and certainty, thereby serving the overall policy of KRS Chapter 230 that the business of legitimate thoroughbred racing shall be conducted on the highest possible plane. KRS 230.215; Berkshire Downs, Inc., supra. Under ordinary circumstances it is clear that the legislature intended that deadline be absolute.
However, the legislature recognized that this orderly procedure would be disrupted by extraordinary circumstances. By giving the Commission the power to remedy the disruptions in the regularly scheduled racing it recognized and intended that when extraordinary circumstances intervene, orderly procedure must bow to the overall purpose of fostering and encouraging the legitimate business of thoroughbred racing. KRS 230.215.
In order to determine the scope of the Commission's power pursuant to the exception, we must determine what the phrase "additional racing dates to make up for dates cancelled" means. In making this determination we must keep in mind the purpose of the exception and must give a liberal construction to that phrase which will promote the remedy it is intended to achieve under all conceivable facts. Cf. Department of Revenue v. Deerineer, Ky., 399 S.W.2d 482 (1966); Boyd v. Alexander, Ky., 284 S.W.2d 85 (1956); Kentucky Region Eight v. Commonwealth, Ky., 507 S.W.2d 489 (1974).
Under a narrow or strict interpretation, the phrase "additional . . . dates to make up for dates cancelled" could be considered the lexical equivalent of additional dates "equal in number to the dates cancelled. " This would mean that the Commission has the power only to grant seven additional dates, because that equals the number of regularly scheduled dates which were cancelled. If the licensee had another regularly scheduled meet which could be expanded by seven days, recovery of the previously cancelled dates would be economically feasible, and thus the purpose of the exception would be served.
However, if we apply this narrow construction of the Commission's power to the facts presented herein, we will defeat the purpose of the exception and will render the exception meaningless. Only seven days of Latonia's racing were cancelled. Latonia has no other regularly scheduled meet which might be expanded by seven days. Thus, if the Commission only had the power to award seven days under the exception, Latonia would have to hold a seven day meet, a proposition which is not feasible, or forego those seven days. Thus, it is clear that the purpose of the exception, to give the Commission the power to promote and encourage racing despite disruptions in the orderly procedure of scheduled racing, would be defeated. The Commission's power to give the additional dates would be rendered meaningless as a matter of fact. Therefore, we will not adopt the narrow construction. Cf. Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277 (1978).
What then, is the scope of the power granted the Commission under the exception? This office is of the opinion that the Commission may award as many additional racing dates, above and beyond the number of dates cancelled, as are necessary to make recovery of the cancelled dates, and of the loss to the industry and the state which resulted from the cancellations, feasible. Only then would the additional dates "make up for" the dates lost.
Thus, upon reconsideration, it is the opinion of this office that the Commission has the power to award as many dates as it, in its discretion and expertise, deems necessary to generate a viable meet which would in fact make up for the dates of regularly scheduled racing which were lost. Thereunder, it may grant as many or all of the dates as it deems necessary.
However, we would reiterate that the purpose of such an award is to make up for dates lost and that the number of dates awarded should reflect that fact. The exception in no way vests the Commission with the power to authorize an entirely new meet. Consequently, it is a power which should be used with caution. For, if the Commission were to award dates which were obviously unrelated to the purpose of making up for regular scheduled dates which were cancelled, Latonia would be potentially liable not only for maintaining a public nuisance and for promoting illegal gambling activity, but there is also authority to the effect that Latonia would be civilly liable to patrons for the amount of bets placed and lost if it was in fact operating under a license which is invalid under the statute. KRS 230.215; KRS Chapter 528; Landers v. Eastern Racing Association, Inc., 372 Mass. 32 (1951).