Goldman v. Maryland Racing Commission

WILNER, Chief Judge. Appellants Goldman and Capuano are trainers of thoroughbred horses and are licensed as such by the Maryland Racing Commission. In a consolidated proceeding, the Commission found that they had violated certain regulations proscribing the administration of drugs to horses entered in races and suspended their respective licenses for 15 days. The Circuit Court for Prince George’s County upheld the Commission’s action whereupon they have brought this appeal complaining that (1) the regulations are unconstitutional both facially and as applied to them and (2) the findings of the Commission are not supported by substantial evidence.

We find no merit in either complaint and therefore shall affirm. The Regulations and Their Implementation The Maryland Racing Commission was created by the General Assembly and vested with “full power to prescribe rules, regulations and conditions under which all horse races shall be conducted within the State of Maryland.” Art. 78B, § 11(a). Among the regulations promulgated by ⁵⁴⁶ the Commission pursuant to this authority are those codified as COMAR 09.10.01.11, captioned “Corrupt Practices.” Paragraph B of that section deals with drugs and provides, in relevant part, that: (1) “A horse participating in any race may not carry in its body any drug.” Id. B(l).

(2) Phenylbutazone, sometimes called “bute,” in an amount less than two micrograms per milliliter (jug/ml) of plasma is not regarded as a drug for purpose of the regulation, but any greater amount of that substance is regarded as a drug. Id. B(2). (3) “A person may not administer, or cause to be administered, or participate, or attempt to participate in any way in the administration of any drug to a horse entered to race.” Id.

B(3). (4) “The presence of a drug in the post-race saliva, urine, or other sample taken from the horse shall be prima facie evidence that the horse had been administered and carried the drug in its body during the race.” Id. B(4). (5) “Whenever the post-race sample taken from a horse discloses the presence of a drug, it shall be presumed that the drug was administered by the person or persons having control, care, or custody of the horse.

The presence of any drug in a post-race sample is prohibited____” Id. B(5). (6) “Every trainer has the duty to be familiar with these drug rules and to be familiar with the substances that are administered to his horse.” Id. B(6).

(7) “The trainer shall be the absolute insurer of, and responsible for, the condition of each horse he enters in a race, regardless of the acts of third parties. A trainer may not start a horse or permit a horse in his custody to be started if he knows, or if by the exercise of reasonable care he might have known or have cause to believe, that the horse has received any drug that could result in a positive test. Every trainer shall guard or cause to be guarded each horse trained by him in such manner and for such period as to prevent any person from administering a drug to the ⁵⁴⁷ horse that could result in a positive test. If the post-race test reveals the presence of a drug, the trainer may be disciplined.” Id.

B(7). (8) “The stewards may at any time order the post-race taking of a urine or blood specimen for testing from any horse who participated in a race.” Id. B(9). and (9) “The Commission, in its discretion may fine, suspend, or revoke, or all of the above, the license of any person found to have violated these drug rules.” Id. B(10).

In accordance with these regulations, the Commission requires that blood and urine samples be taken from each horse that finishes a race “in the money.” Those samples— one container of urine and two vials of blood — are delivered to the Detention Barn, where the urine is separated into two containers. Each of the four containers is then tagged with a sample number, assigned by the Commission, that identifies the horse from which the sample was taken. One set — i.e., one container of blood and one container of urine — is sent to the Commission laboratory for testing. The other set is placed in a locked refrigerator in the Detention Barn and retained for three to four days.

The normal procedure of the Commission laboratory is to make an initial test only of the urine. If a chemical other than phenylbutazone is detected, that finding is reported to the Stewards without any testing of the blood. If phenylbutazone is found in the urine, however, the blood sample is tested to determine the quantity of the substance. The blood is tested on High Performance Liquid Chromatography equipment, which the Director of the laboratory described as “more or less state of the art for quantitation.” If the test shows an amount of phenylbutazone in excess of what is allowed, it is repeated twice more to confirm the result, but only the lowest reading (if the results differ) is reported to the Stewards.

Although under the Regulation (09.10.01.11 B(2)), any quantity of phenylbutazone greater than 2 yg/ml of plasma qualifies as a drug, in fact the ⁵⁴⁸ Laboratory did not, at the time relevant to this case, report quantities less than 2.5 jug/ml. We shall comment fur ther on this later. If the Commission laboratory reports the presence of a drug, including a prohibited amount of phenylbutazone, the trainer is given the opportunity to have the samples retained in the Detention Barn tested by an independent laboratory. That, indeed, is the sole purpose for which they are retained.

If the Commission laboratory report is negative or the trainer opts not to have the retained samples tested, they are routinely discarded. This Case On December 4, 1988, Libra Queen, a horse trained by appellant Capuano, won the fifth race at Laurel Race Course. The blood and urine samples taken after the race were assigned the number 0829. On December 6, Smarterilla, also trained by Capuano, finished second in the second race at Laurel.

The samples taken from him were given the number 0204. The ninth race at Laurel on December 6 was won by Baca D’Or, trained by appellant Goldman. His samples were numbered 0133. In accordance with the procedures noted above, one set of these samples was sent to the Commission laboratory and one set was retained in the Detention Barn.

The laboratory tested the samples on December 8, 1988. The urine samples were subjected to an acid urine test and a thin-layer chromographic test, each of which verified the presence of phenylbutazone. The blood samples were then subjected to three separate high performance liquid chromographic tests to determine the quantity of the substance. The test results for Libra Queen (0829) ranged from 2.9829 to 3.3805 jug/ml of phenylbutazone.

The results for Smarterilla (0204) ranged from 3.1829 to 3.4102; those for Baca D’Or ranged from 2.9589 to 3.4847. As the lowest reading for each horse exceeded 2.5 pg/ml, those results were reported to the Stewards. On being informed of the laboratory findings, appellants elected to have the retained samples ⁵⁴⁹ tested by an independent laboratory, in this case the New York State College of Veterinary Medicine. That laboratory reported findings of: (1) for 0829 (Libra Queen), 1.5 /xg/ml; (2) for 0204 (Smarterilla), 2.2 /xg/ml; and (3) for 0133 (Baca D’Or), 2.8 /xg/ml.

Unfortunately, there were two particular problems with sample 0829. At the Commission laboratory, the blood sample first tested was temporarily mislabeled. Eventually, the mislabeling was discovered and the second two tests correctly revealed the origin of the sample. More significant, the blood and urine samples retained in the Detention Barn were discarded prior to December 8, and thus before the positive finding was reported by the Commission laboratory.

Testimony before the Commission indicated that, normally, the retained samples are kept for three to four days after the race. The supervisor of the Barn then calls the laboratory to see if it is all right to discard the samples. If permission is given, the samples are thrown in the dumpster near the Barn. Libra Queen, as noted, raced on December 4, but the laboratory did not get around to testing her blood until the evening of December 8.

Inadvertently, however, the supervisor threw the retained samples in the dumpster before receiving word from the laboratory. He retrieved them from the dumpster the next day when he learned that the specimens sent to the Commission laboratory had tested positive. Although, by the time of the hearing before the Commission, the supervisor could not remember which sample number was involved, he recalled that he retrieved the one sample he was told to retrieve. The Commission’s chief investigator testified that he examined the item recovered from the dumpster and noticed that it contained the number 0829.

Notwithstanding the mishandling of the retained specimen 0829, the Stewards, after a hearing, concluded that Libra Queen, as well as Smarterilla and Baca D’Or, had been administered drugs in violation of the Commission regulation and that appellants Capuano and Goldman were ⁵⁵⁰ responsible for that administration with respect to the horse(s) under their care. Sanctions appropriate to those findings were imposed, whereupon the trainers appealed to the Commission. In light of the difficulties raised by the improper discarding of retained specimen 0829, the Commission, as its first order of business, dismissed the charge against Capuano with respect to Libra Queen. After a full evidentiary hearing, however, it concluded that Smarterilla and Baca D’Or had been drugged and that Capuano and Goldman were responsible.

Accordingly, the Commission ordered that the two horses be disqualified, that the purses be redistributed, and that the trainers each be suspended for 15 days. As we observed, the Circuit Court for Prince George’s County sustained the Commission’s order; hence, this appeal. The Regulations At oral argument, appellants acknowledged that they had, indeed, administered phenylbutazone to their respective horses and that there was evidence before the Commission of that fact. Notwithstanding that concession, they make three attacks on the regulations applied in this case.

They contend first that COMAR 09.10.01.11 B(7) — the provision declaring the trainer to be the “absolute insurer” of the condition of the