2006 Alabama Code - Section 11-65-10 — Powers and duties of commission.

When authorized by one or more elections as provided in Section 11-65-4, a commission shall have the powers and duties necessary to license, regulate and supervise horse racing and pari-mutuel wagering thereon and greyhound racing and pari-mutuel wagering thereon within the commission municipal jurisdiction, including, without limiting the generality of the foregoing, the powers and duties hereinafter set forth in this section or in other sections of this chapter.

(1) A commission shall have succession in perpetuity, subject only to the provisions of this chapter as it may be amended from time to time.

(2) A commission shall have the power to sue and be sued in its own name in civil suits and actions and to defend suits against it.

(3) A commission shall have the power to adopt and make use of an official seal and to alter the same at pleasure.

(4) A commission shall have the power to adopt, alter and repeal bylaws, regulations and rules, not inconsistent with the provisions of this chapter, for the regulation and conduct of its affairs and business.

(5) A commission shall have the power to make, execute and perform such contracts, agreements and other instruments and to take such other actions as may be necessary or convenient to accomplish its purposes and perform its duties under the provisions of this chapter, including, without limiting the generality of the foregoing, the power to enter into a contract, on such terms as it shall deem desirable, to grant a license to own, or to have the use of, a horse racing facility, a license to conduct horse racing and pari-mutuel wagering thereon, a license to conduct greyhound racing and pari-mutuel wagering thereon, or any other license or permit to a person meeting the qualifications prescribed by this chapter for such license or permit. Any contract of a commission shall be valid and enforceable with respect to any action which may at any time be authorized by law, even if the authority to perform such action was authorized by a law enacted after the making of such contract.

(6) A commission shall have the power

a. to borrow money from any source, including the sponsoring municipality (which is hereby authorized to lend such money to its related commission), for the purpose of paying expenses that may be reasonably incurred in carrying out its duties in advance of the receipt of fees, commissions and other moneys payable to it under the provisions of this chapter and

b. to pledge as security for the payment of the principal of and interest on the money so borrowed all or any of such fees, commissions and other moneys, which pledge shall be prior to any and all claims to such fees, commissions and other moneys from any intended recipients of breeding fund fees pursuant to Section 11-65-34 hereof or from any intended recipients of the net commission revenues pursuant to Section 11-65-36 hereof; provided, however, that no commission shall be entitled, pursuant to this subdivision, to borrow, or to allow to remain outstanding at any time, a principal amount in excess of (i) $500,000.00 or (ii) the amount which the commission estimates will be its total operating expenses for the next three years, whichever of such amounts is the lesser.

(7) A commission shall establish and maintain a general business office within the commission municipal jurisdiction for the transaction of its business at a place to be determined by such commission. A commission shall meet at such times and places within its sponsoring municipality as it shall determine.

(8) A commission shall be vested with supervision and authority over all horse racing and pari-mutuel wagering thereon and all greyhound racing and pari-mutuel wagering thereon that it shall license under the provisions of this chapter and over all persons conducting, participating in or attending such licensed activities. A commission shall employ such persons to be present at all occasions when licensed activities are conducted and to exercise such duties of surveillance and control as shall be necessary to ensure that they are conducted with order and the highest degree of integrity. A commission may eject or exclude from any racing facility where licensed activities are being conducted, or from any part thereof, any person, whether or not possessing a permit from the commission, whose conduct or reputation is such that his or her presence may, in the reasonable opinion of the commission or its agents, pose a threat to, interfere with or reflect adversely upon, the order and integrity of such licensed activities. By the act of giving any operator a license to conduct activities regulated under this chapter, a commission shall be deemed to have authorized and directed the operator to maintain and enforce, subject to compliance with the rules and regulations of the commission, the same degree of order and integrity which it is the right and duty of the commission to maintain and enforce, including the same right as that of the commission to eject or exclude from the racing facility covered by such license, or from any part thereof, any person, whether or not possessing a permit from the commission, whose conduct or reputation is such that his or her presence may, in the reasonable opinion of the operator or its agents, pose a threat to, interfere with or reflect adversely upon, the order and integrity of the licensed activities conducted by the operator; provided, however, that the commission shall have no liability for any actions taken by an operator or its agents with respect to maintaining and enforcing the order and integrity of the licensed activities conducted by such operator.

(9) From the fees, commissions, fines and other moneys available for the payment of a commission's expenses, the commission shall pay all salaries and other employment expenses of its employees and agents, in whatever capacity or for whatever purpose employed, and whether employed in connection with the regulation and conduct of horse racing, greyhound racing or pari-mutuel wagering, and the commission shall not have the right, whether attempted to be implemented by regulation, order or contract, to require a licensed operator under its jurisdiction to pay, or to reimburse the commission for the payment of, any of the salaries or other employment expenses of the commission's employees and agents; provided, however, that the requirements and limitations of this subdivision shall not be interpreted to diminish the authority of the commission to require any licensed operator to employ, at the expense of the operator, such qualified personnel (the selection and determination of the qualifications of such personnel to be mutually acceptable to the operator and the commission) as shall be reasonably necessary to ensure that all licensed activities conducted by the operator are conducted with order, security and the highest degree of integrity in accordance with the provisions of this chapter and the rules and regulations of the commission.

(10) A commission shall have the power to compel a horse racing facility licensee or an operator to file with the commission such periodic reports, in form and content prescribed by duly adopted rules and regulations of the commission, as shall be reasonably necessary for the enforcement of the provisions of this chapter and the performance of the commission's duties. A commission and its representatives and employees shall visit, investigate and have free access to the office, track, facilities or other place of business of an operator, and may compel the production of any of an operator's books, documents or records to the extent that such materials are relevant to a determination that such operator is faithfully complying with the provisions of this chapter and the commission's rules and regulations. By duly adopted rules and regulations or by specific order entered after appropriate hearings and findings, a commission may require that it be provided the following information or materials:

a. An operator shall provide financial reports, verified by the sworn statement of the operator's chief executive officer or chief financial officer, for such periods as the commission may require showing

1. the horse racing handle and the commission horse wagering fee for such period,

2. the payments, by appropriate categories of wagers, to winning participants in pari-mutuel pools for horse racing during such period, including accounting for unclaimed, uncashed or abandoned pari-mutuel tickets,

3. the purses paid for horse racing during such period,

4. the breeding fund fee payable for such period,

5. the greyhound racing handle and the commission greyhound wagering fee for such period,

6. the payments, by appropriate categories of wagers, to winning participants in pari-mutuel pools for greyhound racing during such period, including accounting for unclaimed, uncashed or abandoned pari-mutuel tickets,

7. the proceeds of the admission tax levied pursuant to Section 11-65-33 and remitted to the sponsoring municipality, and

8. such other information concerning the revenues and disbursements of the operator as shall be necessary to verify compliance with the provisions of this chapter concerning horse racing, greyhound racing and pari-mutuel wagering thereon;

provided that the operator shall file with the commission, not less than 90 days after the end of each calendar year, a financial report covering the foregoing information for such year which shall be audited and certified by an independent accounting firm selected by the operator and approved by the commission. Neither a horse racing facility licensee nor an operator shall be required to furnish the commission complete financial statements that disclose the net worth of such licensee or operator, its net income for any period or other confidential information, unless for good cause it can be shown that such information is necessary to enforce compliance with the provisions of this chapter. Any financial information disclosing the net worth or net income of a horse racing facility licensee or an operator, or making it possible to compute the same, which comes into the possession of a commission shall not be public information and shall be protected against public disclosure to the same extent that the tax returns of any taxpayer are protected against public disclosure by the provisions of Section 40-2A-10.

b. In order to enable the commission to monitor and enforce the provisions of this chapter prohibiting the ownership by any disqualified person of an interest in any horse racing facility licensee or an operator, the commission may require such licensee or operator (i) to provide a list of all persons owning any interest therein and identifying those who own more than five percent of the total ownership interest and those, if any, who own more than fifty percent of such ownership interest and (ii) to update such list with changes in ownership at reasonable intervals to be determined by the commission, taking into account whether such ownership interests are publicly owned and traded or whether they are closely held; provided, however, that neither a horse racing facility licensee nor an operator shall be required to disclose the exact percentage of ownership interest in such licensee or operator held by any person to any extent other than that such interest is five percent or less, more than five percent but less than or equal to fifty percent, or greater than fifty percent.

c. The names and addresses of all persons from which an operator shall obtain goods and services of any kind having an aggregate value of more than $10,000 in any single calendar year, together with copies of all written contracts that involve more than a single transaction or the delivery of goods or the performance of services over a period of time.

In any case where a horse racing facility licensee or an operator, pursuant to demand or order of the commission, shall file with the commission, whether voluntarily or under protest, information that such licensee or operator asserts is confidential in a written statement submitted to the commission with such information, then, in such case, if such information is not expressly required to be furnished as public information to the commission by any provision of this chapter, the commission shall protect such information against public disclosure to the same extent that the tax returns of any taxpayer are protected against public disclosure by the provisions of Section 40-2A-10. In no event shall the commission make or allow public disclosure of any information asserted to be confidential by a horse racing facility licensee or an operator, unless such public disclosure shall be ordered by the circuit court of the host county after a hearing in which such licensee or operator shall have had the opportunity to present reasons why it is entitled to a protective order prohibiting or limiting such public disclosure. Nothing contained in this chapter shall be construed to deny access to any information which would otherwise be available to the Attorney General, the district attorney or any other law enforcement official in connection with a criminal investigation or prosecution.

(11) Any contract proposed to be entered into by an operator that involves consideration having an aggregate value of $10,000 or more and that involves more than a single transaction or the delivery of goods or the performance of services over a period of time shall be submitted to the commission before the execution thereof by the operator or within five business days after such execution and shall be subject to the approval of the commission licensing such operator before such contract shall have permanent effect. In approving any contract the commission shall not inquire into or make any judgment regarding the commercial terms of such contract, and its power to disapprove a contract shall be limited to those cases in which it determines that a party to the contract is a disqualified person. Any contract not approved within 30 days of its submission to the commission shall be deemed approved, unless prior to the expiration of such 30-day period the commission shall adopt a resolution stating that it disapproves the contract because it has reasonable cause for believing that a party to the contract is a disqualified person. A certified copy of such resolution shall be promptly furnished to the operator and to the contracting party whom the commission believes to be a disqualified person, whereupon either the operator or such contracting party, or both, shall have the option of terminating the contract or appealing the action of the commission to the circuit court pursuant to Section 11-65-12. In the event that the disapproval of any contract by the commission is not ultimately set aside by the circuit court pursuant to an appeal, the contract shall be valid and lawful for that portion thereof which is performed during the cumulative period, not exceeding 60 days, allowed for the commission's review and disapproval and the operator's appeal of the commission's action.

(12) A commission shall adopt and publish reasonable rules, regulations and conditions under which all types of racing subject to its jurisdiction and pari-mutuel wagering thereon shall be conducted in the sponsoring municipality, and such other reasonable regulations as it deems necessary and appropriate to carry out the purposes and provisions of this chapter; provided, however, that no commission shall promulgate rules and regulations which require the disclosure of confidential information concerning the financial affairs and ownership of a horse racing facility licensee or an operator that is not required to be disclosed by the express provisions of this chapter. Such rules and regulations may include reasonable penalties for violations which shall be in the nature of civil and not criminal penalties.

(13) A commission may issue subpoenas for the attendance of witnesses before it, administer oaths and compel production of records or other documents and testimony of such witnesses whenever such commission finds it necessary and appropriate so to do in order to carry out its duties under this chapter or to enforce the provisions of this chapter or rules or regulations adopted pursuant hereto.

(14) A commission shall be the primary, but not exclusive, law enforcement agency to enforce the provisions of this chapter, shall investigate all violations of the provisions of this chapter coming to its attention, shall report its investigative findings of all criminal violations of the provisions of this chapter to the district attorney of the host county or to the Attorney General of the state when appropriate, and shall have the power to enter into arrangements with any governmental or nongovernmental agency or association for the purposes of exchanging information, establishing security forces or performing or facilitating any other action to ensure the proper conduct of licensed activities under this chapter. The commission shall have the power and duty to maintain the confidentiality of information obtained in its own investigations or received from other law enforcement agencies, all to the extent required by law or agreement with such agencies or as may be deemed necessary or desirable by the commission.

(15) A commission shall have the power to demand and obtain for its files the fingerprints of the following persons, which fingerprints may be taken by a representative of a law-enforcement agency of the county, state or federal government, by inspectors of such commission or by such qualified private security agency as such commission may designate:

a. All members, officers and employees of such commission;

b. Every person who is an officer, director, partner or other principal of a corporation, partnership or other entity which holds a license from the commission, and every employee of such a licensee whose duties relate to the businesses of horse racing or greyhound racing in the sponsoring municipality;

c. All owners of horses, owners of greyhounds, trainers, jockeys, apprentices, stable or kennel employees, managers, agents, blacksmiths, veterinarians and other persons who actively participate in the racing activities of any operator; and

d. All other persons whose relationship to horse racing or greyhound racing or wagering activities under the jurisdiction of the commission is of such nature that the commission, in the exercise of reasonable judgment, believes that it would be prudent to obtain the fingerprints of such persons.

(16) A commission shall report annually to the governing body of its sponsoring municipality and to such state and federal authorities as shall be required by law.

(17) Except as otherwise provided in subdivisions (10) and (12), all books, records, maps, documents and papers of a commission, including those filed with such commission as well as those prepared by or for it, shall at all times be open for the personal inspection of any officer of the state, the sponsoring municipality or the host county or any official investigative body or committee of any thereof, and no person having charge or custody thereof shall refuse this right to any officer or investigative body or committee, and it shall be the express duty of such person to assist such officer or committee in locating records or information. If any member of a commission violates the provisions of this subdivision, he or she shall be subject to removal from office.

(18) Subject to the provisions of Section 11-65-11, a commission shall appoint an executive secretary, a treasurer (subject, in the case of the treasurer, to the provisions of Section 11-65-9) and such other employees as it deems essential to perform its duties under this chapter. Such employees shall possess such authority and perform such duties as the commission shall prescribe or delegate to them. Such employees may include stewards for horse racing, judges for greyhound racing, chemists, veterinarians, inspectors, accountants, guards and such other employees deemed by the commission to be necessary for the supervision and the proper conducting of horse racing and greyhound racing in accordance with the highest standards. Such employees shall be compensated as provided by the commission.

(19) The executive secretary of a commission, in addition to any other duties prescribed by such commission, shall keep a true and full record of all proceedings of such commission and shall preserve at the commission's general office all books, documents and papers of the commission.

(20) A commission shall have the authority to employ legal counsel of its choice to advise the commission and represent it in all proceedings. The compensation of such counsel shall be paid out of the funds of the commission.

(21) A commission shall have the authority (i) to expend funds to promote tourism and attendance at horse racing and greyhound racing events under its jurisdiction and (ii) to appropriate, pledge and pay funds to the sponsoring municipality or the host county, in a single year or for a term of years, for the reimbursement of costs at any time incurred by the sponsoring municipality or the host county (including an allowance for interest on such costs at the rate of eight percent per annum from the date such costs were incurred to the date of reimbursement) in providing roads, bridges, lighting, drainage, water mains, sewers and other public improvements that, in whole or in part, serve racing facilities under the commission's jurisdiction or, alternatively, the reimbursement of installments of principal of and interest on debt at any time incurred by the sponsoring municipality or the host county to pay the costs of such improvements. As a condition to any agreement or undertaking by a commission to make any appropriation, pledge or payment pursuant to clause (ii) of the preceding sentence, the governing body of the sponsoring municipality or the host county, as the case may be, shall adopt a resolution addressed to such commission requesting the reimbursement of the costs of specified improvements or the reimbursement of debt service on debt incurred to pay the costs of specified improvements, and such resolution shall be submitted to such commission together with a verified statement of the mayor of the sponsoring municipality or the president of the county commission of the host county, as the case may be, showing the costs of the improvements, the dates on which such costs were respectively incurred, and, if reimbursement for debt service is requested, the principal amount of debt in question and the date it was incurred, the principal maturities of such debt, the rate or rates of interest borne by such debt, and any agreements providing for the payment of any portion of such costs or debt service by any other entities, whether public or private. A commission shall determine, in the exercise of its discretion, whether to comply with any such request for reimbursement, in whole or in part, and subject to compliance with the conditions of this subdivision, such commission shall have all necessary authority to enter into such agreements as shall be necessary to assure the performance of such reimbursement obligations as it agrees to undertake. If a private entity has a valid and enforceable obligation to pay any portion of such costs or debt service, a commission shall not reimburse the sponsoring municipality or the host county, as the case may be, for the portion of such costs or debt service for which such private entity shall be obligated, and if a public entity has a valid and enforceable obligation to pay any portion of such costs or debt service, a commission shall make such arrangements as shall assure that any reimbursement to, or for the account of, the sponsoring municipality or the host county for any portion of such costs or debt service paid by such public entity shall be remitted to such public entity in order to avoid duplicate reimbursement of the same amount to the sponsoring municipality or the host county. All expenditures, appropriations and payments made by a commission pursuant to this subdivision shall be deemed to be expenses incurred by such commission in the administration and performance of its duties under this chapter and shall be deducted as a prior charge before determining the net commission revenues of such commission; provided, however, that the total amount of all expenditures, appropriations and payments made by a commission pursuant to this subdivision during any calendar year shall not exceed 25 percent of the aggregate amount of commission horse wagering fees and commission greyhound wagering fees received by such commission during that calendar year.

(22) A commission shall have an independent accounting firm, which is approved by a majority of the members of the commission, and the Chief Examiner of Public Accounts of the state, prepare annual certified financial reports, as of the close of each fiscal year, detailing all income, expenses and disbursements of whatsoever nature without limitation and including all expenditures and disbursements made pursuant to Sections 11-65-7, 11-65-9, 11-65-34 and 11-65-36. Each such report shall be a public record and shall be available during normal business hours for examination and copying by the public. Copies of any such report shall be made available upon request at a cost not exceeding the cost of reproducing such report.

(Acts 1984, No. 84-131, p. 159, §10; Acts 1987, No. 87-615, p. 1069, §2; Acts 1991, No. 91-187, p. 246, §10.)