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Emergency regulations for historical racing on hold; KHRC must consider Family Foundation complaint

By Tom Latek
Kentucky Today

Action on Tuesday by a legislative committee on emergency administrative regulations proposed by the Kentucky Horse Racing Commission for historic horseracing machines has been postponed after the Commission temporarily withdrew them.

The action was taken after The Family Foundation said it was not an appropriate use of emergency regulations by the Commission that defied the law’s requirement to provide adequate justification for their use and failed to give any consideration to concerns over public health, safety and welfare. It also disregards a unanimous Kentucky Supreme Court decision that The Family Foundation pursued for years, the organization said.

Historical Horse Racing machines at the Red Mile. (Photo from Kentucky Today)

When asked for a response, the Horse Racing Commission said, “In short, the regulation hearing was rescheduled due to procedural rules. After receiving public comments, the KHRC must respond (according to procedural rules) with a statement of consideration. That is a document which addresses and responds to the written comments of a member of the public — in this case The Family Foundation.”

That statement is expected to be issued in a matter of days.

The whole issue of historical horse racing has been the subject of legal action that has lasted for a decade in the Kentucky court system.

In September 2020, the Supreme Court issued an opinion which stated, “Because we hold that the Encore system does not create a wagering pool among patrons such that they are wagering among themselves as required for pari-mutuel wagering, the trial court misapplied the applicable regulation as a matter of law.”

They reversed the lower court ruling and remanded the case back to the Franklin Circuit Court “for entry of a judgment consistent with this opinion.”

The Family Foundation maintains, “The Franklin Circuit Court refused. Instead, the Franklin Circuit Court invited the racetracks to provide input in the judgment. When the judgment was entered by the Franklin Circuit Court on March 17, 2021, the Franklin Circuit Court’s judgment nullified the earlier Supreme Court’s opinion reversing.”

That prompted the Family Foundation to appeal. “Because of the Franklin Circuit Court’s affront to the Kentucky Supreme Court, The Family Foundation seeks again to have the Kentucky Supreme Court adjudge the case. If the Supreme Court accepts the transfer of the appeal, this will be the third time the slot-gaming case will be before the state’s highest court.”

After the high court opinion was handed down, the General Assembly passed legislation to legalize historic horse racing, and it contained an emergency clause. That means instead of taking effect June 29, it became law as soon as Gov. Andy Beshear signed it.

But since the General Assembly can’t pass retroactive legislation, The Family Foundation hopes to have the high court make a determination based on past actions they say were illegal.

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