Request By:
Michael W. Davidson
Director
Kentucky State Racing Commission
P.O. Box 1080
Lexington, Kentucky 40588
Opinion
Opinion By: Steven L. Beshear, Attorney General; Christopher W. Johnson, Assistant Attorney General
You have requested, on behalf of the Commission, if in the opinion of this office the Commission can grant additional racing dates to Latonia in 1981 due to the shortage of stables for Kentucky horsemen at the concurrent Churchill Downs fall meeting. In our opinion the Commission cannot.
The Commission is authorized to award racing dates to licensees pursuant to KRS 230.300(2):
"(2) The Commission shall as soon as practicable, but in no event latter than March 1, in any calendar year award dates for racing in the Commonwealth during the year. In the event scheduled racing is cancelled by reason of flood, fire, or inclement weather, the commission may award after March 1 additional racing dates to make up for those dates cancelled by such flood, fire, or inclement weather. " [Emphasis added].
The plain language of the statute grants the Commission the power to award racing dates during any calendar year, such award to be made no later than March 1 of that year. One exception is provided. In order for the exception to take effect two criteria must be present. First, scheduled racing must be cancelled. Second, that cancellation must occur by reason of fire, flood, or inclement weather. If both criteria are present the Commission has the limited, discretionary power to award additional dates to make up for those dates cancelled.
It is clear that the legislature intended the deadline to be absolute except in certain limited circumstances. However, the Commission has been granted "plenary power" to regulate racing in such a manner as will "foster and encourage the legitimate business of thoroughbred racing. " KRS 230.215. KRS 230.200(2) is designed to promote orderly procedure and certainty thereby furthering that expressed policy.
Burkshire Downs, Inc. v. State Racing Commission, 350 Mass. 695, 216 N.E.2d 428 (1966).
By establishing an exception to the deadline rule, the legislature recognized that extraordinary circumstances could disrupt the orderly procedure and certainty envisoned by KRS 230.200(2). They granted the commission limited power to correct such disruption in order to maintain racing on the "highest possible plane."
The question now becomes whether the disruption in the orderly procedure of the racing industry caused by the extraordinary circumstance of Churchill Downs actions is of the type which the legislature intended to except from the deadline requirement. The language of the statute limits the exception to three specific situations: flood, fire, or inclement weather. The statute says "In no event . . ." shall additional racing dates be awarded unless these specific circumstances are present. All three circumstances seem to fall in one class - natural disasters.
In contrast to a natural disaster, which is by definition unforeseeable and harmful, the actions of Churchill Downs are reasonably foreseeable and would seem to be a good-faith attempt to improve racing at Churchill Downs. If such is the case, these actions would hardly seem to be in the same class of situations which the legislature intended to except from the March 1 deadline. The actions of Churchill Downs have not caused previously scheduled racing dates to be cancelled, the second criteria necessary for the exception.
We must conclude that it is not within the scope of authority of the Kentucky State Racing Commission to award additional racing dates to Latonia in absence of the cancellation of previously scheduled dates due to flood, fire, or inclement weather or an extraordinary disruption of the orderly conduct of business amounting to the same crisis level as a natural disaster. The change in policy of a stable allocation by Churchill Downs, although possibly creating a disruption in the orderly conduct of business, is not such an unforeseeable, harmful circumstance as is excepted from the deadline in KRS 230.300(2).