RICHARD E. HUGHES v. KENTUCKY HORSE RACING AUTHORITY, Successor to the KENTUCKY RACING COMMISSION
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RENDERED: August 6, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001479-MR
RICHARD E. HUGHES
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 01-CI-00436
KENTUCKY HORSE RACING AUTHORITY,
Successor to the KENTUCKY RACING
COMMISSION1
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE:
BARBER, SCHRODER, AND VANMETER, JUDGES.
SCHRODER, JUDGE.
Richard E. Hughes (Hughes) appeals the
decision of the Franklin Circuit Court that upheld the decision
of the Kentucky Racing Commission (Commission) to suspend and
1
The Kentucky Racing Commission was abolished, recreated,
restructured, and renamed the Kentucky Horse Racing Authority by
Executive Order 2004-030, dated January 6, 2004.
revoke his license as a Racing License Inspector.2
We affirm in
part, reverse in part, and remand.
This is a case of bad tempers which demonstrates how
juvenile supposedly mature adults can act.
On August 6, 2002:3
2. Richard Hughes was a licensed employee
of the Commission who worked as a race
license inspector at the various racetracks
in Kentucky. 3. Gerald O’Brien was
licensed by the Commission as a trainer. 4.
On the morning of August 6, 2000, O’Brien
was exercising one of his horses at Ellis
Park. Hughes was standing at the rail
talking with another trainer, Elvis Cobb.
5. Apparently, O’Brien was having a
difficult time with his horse, and as he
passed by Hughes to take the horse back to
the stable, Hughes stated to him something
to the effect that he should smile more.
O’Brien responded with the comment that
Hughes was doing all right if his biggest
worry was whether O’Brien was smiling or
not.
The hearing officer found nothing else was said between the two,
although Hughes, who is African-American, testified he heard
O’Brien address him as “nigger”.
After a brief exchange of
words,
O’Brien proceeded back to the barn. Hughes
and Cobb also then parted company, and
neither commented on O’Brien’s statement.
2
Hughes was also terminated from his merit position of Racing
License Inspector as a result of the same conduct. The
termination was modified to a thirty-day suspension by the
Kentucky Personnel Board and the Commission’s appeal of the
modification is currently before the Supreme Court in Case No.
2004-SC-000410-D.
3
These facts are per the Commission’s Hearing Officer’s
findings from the October 9, 2000, hearing.
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7. O’Brien and Hughes had no more than a
passing acquaintance and had no previous
confrontations or disagreements. 8. An
hour or two later, Hughes saw O’Brien in the
parking lot and approached him as he entered
his automobile. 9. Hughes told O’Brien
that he had embarrassed Hughes in front of
his client. O’Brien responded by stating,
“Why don’t you take care of your business,
and I’ll take care of mine.” Seeing that
Hughes was very agitated, O’Brien then drove
away. 10. As he did, Hughes banged on hood
of the car and shouted, “I’ll kill you, you
mother f___r.” 11. That was the last
direct confrontation between the two, and
Hughes was not scheduled to work the next
two days since the track was closed.
Hughes returned to Ellis Park on the morning of
Wednesday, August 9, 2000.
While there, he talked to David
Paulus, a trainer, about O’Brien who Hughes mistakenly thought
worked for Paulus as an exercise boy.
Hughes repeated the
threat to Paulus, but there was a question as to whether the
threat was being given again or was being revealed to Paulus.
The hearing officer found “Hughes went on to state that if
O’Brien wanted to mess with him, he would get his gun out of his
car and blow his head off.”
Paulus relayed the message to
O’Brien who told his girlfriend who called the Commission which
instructed the Director of Security (Jim Cain) for the
Commission to investigate the threat.
Per the hearing officer:
18. That same day Cain interviewed O’Brien
and then Hughes. O’Brien confirmed the
confrontation at the car but denied making
any racial remarks. Hughes stated that
O’Brien had “smarted off” and had made some
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type of racial remark. Hughes, however,
could not recall the specific remark which
had made him so angry. 19. Hughes did
acknowledge that he had threatened to kill
O’Brien while confronting him at the car,
and in fact, Hughes reiterated that same
intent in the discussion with Cain, stating
that he was 70 years old, was “not going to
take any crap off anybody,” and would kill
O’Brien. 20. Cain then asked whether
Hughes had a gun on the property at Ellis
Park. He stated that he had an automatic
pistol locked in the trunk of his car. 21.
Upon concluding the interview, Cain
accompanied Hughes to his car to inspect the
gun. Hughes opened the driver’s side door
and removed a loaded pistol from the door
panel or from next to the seat. 22. Cain
unloaded the shells from the gun and asked
Hughes to secure the gun in the truck and
shells in the glove compartment. Cain then
directed Hughes to leave Ellis Park and not
to bring the gun back. 23. Hughes has a
permit to carry a concealed weapon, but in
addition to the Commission’s regulation
prohibiting weapons at a track, Ellis Park
has signs at the entry to the track stating
that firearms were prohibited on the
property.
The Commission issued a “Notice of Hearing” against
Hughes charging that the August 6 and 9, 2000, threats
constituted disorderly conduct in violation of 810 KAR 1:025,
Section 3(9), and the possession of a firearm was a violation of
810 KAR 1:025, Section 3(12)(a).
On August 23, 2000, the
stewards found Hughes guilty as charged and suspended Hughes’s
license through December
31, 2000.
suspension to the Commission.
Hughes appealed his
A hearing officer conducted an
administrative hearing on October 9, 2000, and after making
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extensive findings, recommended the Commission affirm the
suspension through December 31, 2000.
The Commission upheld the
hearing officer’s findings and extended the stewards’ suspension
of Hughes’s license one year through December 31, 2001,4 and also
revoked Hughes’s license pursuant to 810 KAR 1:028 Sections 3
and 4.
Hughes appealed to circuit court which upheld the
Commission.
The appeal to our Court followed.
On appeal, Hughes contends that the Commission’s
suspension and revocation of his license is not supported by
substantial evidence.
We have reviewed the record and the
hearing officer’s “Findings Of Fact, Conclusions of Law, and
Recommended Order”.
A court reviewing an administrative
agency’s decision is concerned with whether the agency’s
decision was arbitrary or clearly erroneous; if the agency acted
outside the scope of its authority; if the agency applied an
incorrect rule of law; or if the decision itself was not
supported by substantial evidence in the record.
Kentucky State
Racing Commission v. Fuller, Ky., 481 S.W.2d 298 (1972).
“Clearly erroneous” means not supported by substantial evidence.
Kentucky Bd. of Nursing v. Ward, Ky. App., 890 S.W.2d 641, 642
4
The one-year extension may be a typo as the Commission in its
brief argues Hughes received a 90-day suspension. The circuit
court simply upheld the suspension of the Commission.
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(1994).
“Substantial evidence” is evidence which, when taken
alone or in light of all the evidence, has sufficient probative
value to induce conviction in the minds of reasonable persons.
Bowling v. Natural Resources and Environmental Protection
Cabinet, Ky. App., 891 S.W.2d 406, 409 (1994).
In reviewing whether an agency’s decision is supported
by substantial evidence, the reviewing court must adhere to the
principle that the agency, as fact finder, is afforded great
latitude in its evaluation of the evidence heard and the
credibility of the witnesses appearing before it.
Kentucky
State Racing Commission v. Fuller, Ky., 481 S.W.2d 298 (1972).
In addition to the principles established by case law, the
judicial review process of Kentucky’s Administrative Procedures
Act at KRS 13B.150(2) circumscribe the scope of judicial review
of factual determinations made in an agency’s due process
hearing, as follows:
“The court shall not substitute its
judgment for that of the agency as to the weight of the evidence
on questions of fact.”
In its findings of fact, the Commission adopted the
hearing officer’s findings which were extensive, and even though
there was evidence that, under the circumstances, the threats
were not as serious as they sound, there was substantial
evidence to support the agency’s findings of fact.
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Therefore,
we must defer to those findings of fact.
Kentucky Commission on
Human Rights v. Fraser, Ky., 625 S.W.2d 852 (1981).
The hearing officer determined the threatening
statements on August 6 and 9, 2000, were disorderly conduct in
violation of 8 KAR 1:025, Section 3(9), and that the possession
of a firearm in the car in the parking lot violated 810 KAR
1:025, Section 3(12)(a).
Although we agree with the finding of
disorderly conduct, we disagree with the hearing officer’s
conclusions of law as it relates to the firearm.
We acknowledge
that 810 KAR 1:025, Section 3(12)(a), does prohibit the
“Possession on association grounds, without written permission
from the commission or stewards, of:
(a) Firearms, . . .”
However, KRS 527.020(8) provides in part:
No person or organization, public or
private, shall prohibit a person from
keeping a firearm or ammunition, or both, or
other deadly weapon in a glove compartment
of a vehicle in accordance with the
provisions of this subsection. Any attempt
by a person or organization, public or
private, to violate the provisions of this
subsection may be the subject of an action
for appropriate relief or for damages in a
Circuit Court or District Court of competent
jurisdiction.
There is a conflict between the statute and the administrative
regulation.
“[I]t is axiomatic that the grant of the power to
make regulations does not authorize an administrative agency to
adopt regulations which are contrary to legislative policy as
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expressed in the statutes.”
Kentucky Alcoholic Beverage Control
Board v. Anheuser-Busch, Inc., Ky. App., 574 S.W.2d 344, 345
(1978).
“Administrative regulations of any kind
which have been duly adopted and properly
filed have the full effect of law.” Flying
J Travel Plaza v. Commonwealth,
Transportation Cabinet, Department of
Highways, Ky., 928 S.W.2d 344, 347 (1996).
The regulations, however, “are valid only as
subordinate rules when found to be within
the framework of the policy defined by the
legislation” as an administrative agency’s
authority “is limited to a direct
implementation of the functions assigned to
the agency by the statute.” Id. Any doubts
concerning the existence or extent of an
administrative agency’s power should be
resolved against the agency. [Henry v.
Parrish, 307 Ky. 559, 211 S.W.2d 418, 422
(1948)].
United Sign, Ltd. v. Commonwealth, Ky. App., 44 S.W.3d 794, 798
(2000).
We believe the Commission’s reliance on the
prohibition in 810 KAR 1:025, Section 3(12)(a), against firearms
was in error.
The findings of fact make it very clear that
Hughes had a permit to carry a concealed weapon, that the weapon
was locked in the car in the parking lot of Ellis Park, and that
Hughes did not have the weapon on his person.
To the extent the
regulation contradicts KRS 527.020(8), it is void and should not
have been a consideration by the Commission in its conclusions
of law or disposition.
A reviewing court must determine if the
-8-
agency is applying the correct rule of law to its factual
findings.
Bowling v. Natural Resources and Environmental
Protection Cabinet, Ky. App., 891 S.W.2d 406, 410 (1994).
We
are not saying what the Commission’s disposition should be, only
that it should reconsider its disposition without considering
the firearm in the car.
For the foregoing reasons, the judgment of the
Franklin Circuit Court is affirmed in part, reversed in part,
and remanded for further proceedings consistent with this
opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Herbert L. Segal
Everett C. Hoffman
Louisville, Kentucky
J. Bruce Miller
Louisville, Kentucky
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