Lussier v. Maryland Racing Commission

MOTZ, Judge. This case involves a claim by a racehorse owner that the Maryland Racing Commission improperly fined him for violations of its regulations. (i) In April, 1991, appellant Frank P. Lussier, a Vermont resident and owner of several automobile dealerships, purchased three two-year-old thoroughbred racehorses at the Ocala Breeders’ Sale. Lussier’s reason for buying the horses was, in his words, “to make some money with these horses.” As he explained, “my contention was take these horses and I want to bet these horses and I want to make some money with these horses.

I’m not in this for nothing.” He further explained that, since he knew little about horses, he hired Michael Downing, a New England trainer, with what another witness characterized as a “very good reputation in the racing community,” to train the horses. The agreement between Lussier and Downing was that Downing would be responsible for all bills related to training and maintaining the horses and would receive sixty percent of the horses’ earnings, while Lussier, who had purchased the horses, would receive only forty percent of those earnings. On September 6, 1991, the three horses purchased by Lussier at Ocala—Perfect Reign, The Manager, and High Passer—were tattooed for identification purposes at Rocking-ham Park in Salem, New Hampshire. The tatoo branding ¹⁹⁴ report for each horse listed their owner as Capital Racing Stable, the stable name used by Lussier, and their trainer as Michael Downing.

Less than three months later, during a single five week period, each of the horses was shipped from New Hampshire to Laurel Race Course in Maryland to race in separate $12,000 claiming races for two-year-old maidens. 1 Shortly thereafter, beginning in February, 1992, appellee, the Maryland Racing Commission and the Thoroughbred Racing Protective Bureau engaged in a joint investigation to determine whether during the Maryland races the true owner or trainer of the horses had been concealed and whether falsified workout reports for the horses had been published. That investigation led to a Commission hearing in which there was evidence as to the following facts. Perfect Reign raced at Laurel on November 26, 1991. Six days earlier in New Hampshire, Michael Downing (Lussier’s trainer) had approached Woodard Tuttle, a hot walker, groom, and trainer, and asked if Tuttle would be interested in buying a young horse.

Downing told Tuttle that the horse had a “little ability” and “might last 20 starts [or] ... a couple starts.” Tuttle agreed to purchase the horse for $5,000 and purportedly gave Downing $5,000 in cash. Although Lussier himself did not negotiate the sale price, he testified that he had authorized the sale of Perfect Reign because Michael Downing had told him that the horse had problems and so Downing thought he could only “get a race, maybe two, out of the horse.” When Perfect Reign arrived at Laurel, Tuttle was listed as the owner and trainer on the entry form; Tuttle was also listed as Perfect Reign’s owner and trainer in the Daily Racing Form and the track program published on the day of the race. Tuttle applied for and was granted an owner and trainer license; the license application asked Tuttle “to list all ¹⁹⁵ horses owned by you, wholly or in part” and Tuttle listed only Perfect Reign. Because Perfect Reign had never raced before, there were no performance times from previous races available to be printed in the Daily Racing Form or the track program.

Instead, as permitted by the regulations (COMAR 09.10.01.-19YY), the horse’s purported workout results were printed. The results attributed to Perfect Reign were for workouts at Delaware Park on October 29, 1991, November 6, 1991, and November 18, 1991. The Daily Racing Form’s sole docker at Delaware Park, however, told an investigator that he had no knowledge of these workouts (or of the workouts of The Manager or High Passer described within). The docker said that it had become his practice to accept workout information given to him at the track even though he knew that the information was often false. 2 On the day of Perfect Reign’s race, even though they assertedly no longer had any owner or trainer relationship with the horse, Lussier and Michael Downing were present at Laurel.

Lussier bet heavily (approximately $5,400) on Perfect Reign; he bet $1,200 to win, place, or show and, in addition, “wheeled the horses back and forth in all the exactas.” (Thus, he bet Perfect Reign to win in combination with each of the other horses in the race to finish second.). This betting had an effect on the odds, which opened at 30-1 and closed at 15-1. The Racing Commission asked Lussier why he had bet $5,400 on a horse that he had sold because his trainer had told him that the horse “had maybe one or two races [left]” and “wasn’t in such good shape.” Lussier responded that it was because “I needed to get out [i.e., get the return of his purchase money for the horse].” Lussier explained that he expected to do this because, ¹⁹⁶ A. ... I got the horse in a race that if she didn’t fall down she was going to win.

That was the way it was presented to me. But if you see the film you’ll maybe understand. Q. Oh, the horse won by eight lengths. A. Okay.

Right. Q. With no workouts that show anything of value. A. You know, exactly. I know nothing about those workouts and that’s the true, [sic] After this exchange, a racing commissioner asked: Q. I’m really puzzled ... you were told by the trainer that the horse was really—maybe had a race or two in him, was lame and you sold the horse before the race.

I don’t think—if you thought the horse had a couple good races in it, I don’t know why you would sell the horse and then you bet $5400 on him. Lussier’s only response to this question was to point out that he had volunteered that he had bet on Perfect Reign and that “[t]he only horse they had me on was The Manager, the bet.” (In fact, that is not entirely accurate; a mutuel clerk at Laurel identified Lussier from a photograph as the person who bet wheeling exactas on Perfect Reign.). Perfect Reign won the race at Laurel and Lussier collected more than $15,000 in -winnings. Although Tuttle was listed as the owner and trainer, in the photograph of Perfect Reign in the winner’s circle, Tuttle stood off to the side while Lussier appeared prominently in the center of the winner’s circle.

Immediately after the race, Michael Downing approached Tuttle and said that Lussier had demanded that he repurchase Perfect Reign. Lussier testified that when Perfect Reign won the race, he thought he might have been tricked C‘[t]he horse business is a tricky business”), and he “want[ed] that horse back.” Tuttle agreed to sell the horse back to Lussier assertedly because Perfect Reign’s ankle was a bit swollen and she was not “cooling out” well. Tuttle testified that it was then agreed that he would be paid $6,000 for a horse that had just won Lussier $15,000. ¹⁹⁷ Although Tuttle told investigators that the bills of sale were on file at Rockingham evidencing the sale and resale of Perfect Reign, their investigation revealed that no such bills of sale were on file. At the Commission hearing, Tuttle’s attorney did have admitted into evidence bills of sale evidencing the sale and resale.

The document evidencing the resale of the horse to Lussier from Tuttle, is dated December 20, 1991, almost a month after the date of the Maryland race and Tuttle’s oral agreement to resell the horse. When Perfect Reign next raced, at Aqueduct in New York on January 5, 1992, Lussier was listed as the owner and Michael Downing as the trainer; in this $27,000 allowance race, the horse finished third. The second horse, The Manager, raced at Laurel on December 29,1991. Three days earlier on December 26, Lussier had asked Jody Marsh, a groom employed by Michael Downing and whom Lussier had only known for a few months, if she would like to train The Manager for the race.

Lussier testified that he asked Marsh to train the horse because Michael Downing would be out of the country in Venezuela on a prepaid vacation at the time of the Maryland race. Marsh agreed to train The Manager without ever discussing with Lussier her salary or any other compensation for her services. Indeed, Marsh testified that she did not know where The Manager was stabled, had never seen the horse work out, and did not know about any prior workouts or even whether the horse was fast or slow. According to Marsh, all she knew when she agreed to train The Manager was that the horse was “a two year old filly, first time starter, and that was about it.” The Manager was shipped to Laurel on December 26, 1991, with Michael Downing listed on the horse transportation company’s records as the person responsible for the payment of transportation costs.

Marsh did not arrive at Laurel until December 28. At that time, she applied for an original trainer’s license in which she indicated that she was not licensed as a trainer in any other jurisdiction. Marsh testified that she “took care of [The Manager], got her to the race ¹⁹⁸ track, took care of her, fed her.” She did not gallop the horse herself, see the horse work out, or provide racing instructions to the jockey, all of which are the usual duties of a trainer. Marsh explained that she was accompanied at Laurel by Michael Downing’s brother, William (“Radio”) Downing, who “knew the horse a little better than me,” and Radio told the jockey “a little bit about the horse.” Marsh (not Michael or Radio Downing) was listed in the Daily Racing Form and on the track program as The Manager’s trainer and Lussier, who had obtained a Maryland owner’s license from the Racing Commission on December 29, was listed as the horse’s owner.

Like Perfect Reign, The Manager had never raced before, and so her workout, rather than prior race, results were printed in the Daily Racing Form and the track program. Again, these workouts purportedly took place at Delaware Park, although, in fact, Michael Downing told an investigator, that “The Manager had never worked [out] at Delaware Park.” When contacted by the investigator, the Delaware Park docker stated that the workouts were really those for The Manager’s dam, Fairy Isle, and were transferred to The Manager “at another level with[in]” the Daily Racing Form; the docker “did not know how” this was done, but it was being investigated. As he had with Perfect Reign, Lussier bet heavily (he said approximately $6,000) on The Manager and the odds fell from 20-1 to 4-1. Like Perfect Reign, The Manager won the race easily—by three lengths.

Lussier again collected winnings in excess of $15,000. Michael Downing, who according to Lussier was supposed to have been on vacation out of the country during the race, was, in fact, present at Laurel and bet $500 himself on The Manager. Immediately after the race, while standing with Marsh in the winner’s circle at the track, Lussier told Marsh that “he was giving the horse[ ] back to Mike [Downing].” Lussier did not pay Marsh the usual trainer’s percentage of the purse monies earned by the horse; his only payment to her for training the horse was $200, given with the advice to “go out and have fun.” Instead, Lussier paid the entire trainer’s percentage share of the Laurel purse ¹⁹⁹ monies to Michael Downing. After the race, Marsh went back to New England and worked as a groom for Michael Downing; she stated that she has never again been hired to train a horse.

An investigator testified that Marsh told him that when she saw the odds suddenly drop she knew she had been used and that she confronted Lussier about his bets; he showed her a handful of tickets and said he had bet $7000. At the hearing before the Commission, however, Marsh testified that although she saw the odds suddenly drop and so “observed somebody must have liked her [The Manager] and bet a lot,” she did not speak with Lussier about his betting. An investigator also testified that Michael Downing said Lussier “bet a bundle on The Manager.” During the drive back to New Hampshire after the Laurel races, Downing purportedly told Lussier that “someone might notice the large bets made on the horse but as the weeks passed both he and Lussier felt that they were pretty safe.” Lussier did not directly deny this conversation, but did testify that he flew directly from Dulles Airport to Florida after the Laurel races on December 31. The Manager next raced at Suffolk Downs in Massachusetts on January 25, 1992; Lussier was the listed owner and Downing the trainer.

The horse won this $10,000 allowance race by 4| lengths. The third horse, High Passer, raced at Laurel on December 31, 1991; the horse was shipped to Laurel from New England ■with The Manager on December 26. On that same day or the next, Radio Downing asked Carlisle Wisecarver, an outrider at the Laurel Race Course, if he would like to purchase High Passer. Radio told Wisecarver that the horse might have a problem with his left knee.

Wisecarver galloped High Passer and then met for the first time with Lussier the next day. They orally agreed that Wisecarver would buy High Passer for $10,000; there was no down payment, rather the entire purchase price was to be paid in monthly installments of $1,000 per month beginning at the end of January, 1992. In ²⁰⁰ addition, it was agreed that because of the horse’s possible left knee problem, Wisecarver could cancel the deal after High Passer raced. Although Lussier assertedly signed the foal paper on High Passer over to Wisecarver, no written agreement, bill of sale, or loan documents evidencing this transaction were signed or even prepared.

On his application for licensure, Wisecarver indicated that High Passer was the only horse owned by him. When High Passer raced, Wisecarver was listed in the Daily Racing Form, and the track program as the horse’s owner and trainer. Once again, workout rather than race times were published for High Passer because this was the horse’s first race. Again, the workout results were from Delaware Park, although High Passer had never worked out there; in fact, on one of the purported workout dates (December 28,1991), High Passer was already at the Laurel Racecourse.

Again, although Lussier purportedly had no ownership interest in High Passer, he was present at Laurel for the horse’s race and, he testified, made bets on High Passer, similar to those made on Perfect Reign and The Manager. Because High Passer finished third, one length behind the winner, Lussier did not cash any of his tickets. Wisecarver collected the third place purse money of $730. During the race High Passer was assertedly injured because of being “clipped” on the right leg (not the left leg, on which there was an alleged pre-race problem).

Because of this injury and because the horse was not “cooling out well” Wisecarver rescinded the sale and Lussier agreed to take back the horse. When High Passer next raced at Philadelphia Park on February 2, Lussier’s stable was listed as the owner and Downing as the trainer; the horse finished fifth. A few months later the horse finished first. Both Lussier and the Commission subpoenaed Michael Downing to testify at the Racing Commission hearing; he did not respond to the subpoena.

At the time of the hearing, Downing was still Lussier’s trainer for two horses; neverthe ²⁰¹ less, Lussier conceded that he did not personally request that Downing attend the hearing, nor did he even talk with Downing in the two weeks prior to the Racing Commission hearing. In an informal interview, Downing told an investigator that he was “concerned with the aftermath of what could happen if he did agree to be interviewed [formally] and told the ‘whole’ story as to how the false works [sic] appeared in Delaware and how easy this type of thing could happen and is happening every day across the country going unnoticed.” He told the investigator falsified workouts “happen” frequently and easily. He explained, “ ‘Big scores,’ ... are common, especially when nobody checks to see if the horse presented to the docker is really the ‘right’ horse.” Eight witnesses testified at the Racing Commission hearing on this matter. Among these witnesses, in addition to two investigators, were Lussier, Marsh, Tuttle, and Wisecarver, all of whom were charged with violations of Racing Commission regulations.

The hearing transcript exceeds 600 pages; the Commission also considered numerous exhibits. The Commission found that Lussier “directly, or through his agents,” (1) “ostensibly” sold Perfect Reign to Tuttle “in order to effectively conceal the identity of the true owner and trainer of the horse”; (2) had Marsh “pose as the trainer of ‘The Manager’ ... in order to effectively conceal the identity of the true trainer”; (3) “ostensibly” sold High Passer to Wisecarver “to effectively conceal the identity of the true owner and trainer of the horse”; (4) “effectuated the publication of three falsified mediocre workouts” for each horse “shortly before each horse raced in Maryland”; and (5) after “[hjaving effectively concealed ... the true identity” of the owner of Perfect Reign and High Passer and the trainer of all three horses and “having effectively misinformed the betting public as to the true speed of these horses ... wagered large sums of money on each horse” and collected winnings in excess of $30,000. A majority of the Commission sustained all but one of the charges against Lussier and none of the charges against the others. Specifically, the Commission concluded that Lussier had: participated in improper acts in relation to racing in ²⁰² violation of COMAR .09.10.01.11(A)(3); transferred Perfect Reign and High Passer from himself to the name of another person for a purpose other than the legitimate sale of a horse in violation of COMAR .09.10.01.11(A)(14); and perpetrated dishonest acts in connection with his activities, responsibilities, and duties on the race track, and engaged in conduct detrimental to racing in violation of COMAR .09.10.01.25(B)(8).

The Commission penalized Lussier by ordering him to pay a fíne of $5,000. Lussier appealed to the Circuit Court for Baltimore County, which, after conducting a hearing, affirmed the decision of the Commission in an opinion and order dated July 12, 1993. Appellant presents four questions for our review: 1. In the absence of statutory authorization to do so, may the Maryland Racing Commission “fine” licensed horse owners? 2.

Did the Maryland Racing Commission effectively charge the appellant with wrongdoing, and were the Commission’s principal factual and legal conclusions supported by competent, material, and substantial evidence, in light of the applicable burdens of proof? 3. Were the COMAR provisions invoked against the appellant unconstitutionally vague, and therefore void? 4. May the Stewards or the Maryland Racing Commission subpoena individuals beyond Maryland’s borders? (Ü) Lussier maintains that the Commission is “without statutory authority to ‘fine’ licensed horse owners” because there is no express authority to fine in the statute creating and empowering the Commission.

An administrative agency is, of course, a “creature of statute, [which] has no inherent powers and its authority thus does not reach beyond the warrant provided it by statute.” Holy Cross Hosp. of Silver Spring, Inc. v. Health Servs. Cost Review Comm’n, 283 Md. 677, 683 , 393 A.2d 181 (1978). The power to impose penalties belongs to the legislature; however, the legislature may dele ²⁰³ gate that power to an agency. County Council v. Investors Funding Corp., 270 Md. 403, 441 , 312 A.2d 225 (1973).

The cases upon which Lussier relies, Eastern Diversified Properties, Inc. v. Montgomery County, 319 Md. 45 , 570 A.2d 850 (1990); Holy Cross Hosp.; Gutwein v. Easton Publishing Co., 272 Md. 563 , 325 A.2d 740 (1974), cert. denied, 420 U.S. 991 , 95 S.Ct. 1427 , 43 L.Ed.2d 673 (1975) and Wielepski v. Harford County, 98 Md.App. 721 , 635 A.2d 43 (1994), do not support his theory that an agency can impose civil penalties only when its enabling statute expressly so provides. Indeed, none of these cases even involves civil penalties. Holy Cross Hosp. held that an agency could not regulate the fees charged by certain medical specialists under the agency’s authority to set rates for hospital costs. 283 Md. at 679 , 393 A.2d 181 . Eastern Diversified and Wielepski determined that a county’s attempt to impose certain fees were actually the imposition of general taxes in violation of the State Constitution.

Eastern Diversified, 319 Md. at 55 , 570 A.2d 850 ; Wielepski, 98 Md.App. at 731 , 635 A.2d 43 . Gutwein held that the Human Relations Commission did not have authority to order an employer to pay an employee compensatory damages. 272 Md. at 576-77 , 325 A.2d 740 . Moreover, in none of these cases did the courts hold that unless the General Assembly expressly grants an agency a power, the agency does not have this power. Not even in the case on which Lussier most strongly relies, Gutwein , did the court so hold.

The Gutwein court did, of course, note that although the enabling statute gave the Human Rights Commission broad powers to take “affirmative action as will effectuate the purposes of the particular subtitle,” it did not expressly grant the agency the power to order money damages. 272 Md. at 568, 576-77 , 325 A.2d 740 . The Gutwein court, however, seemed to give far more weight to the limited purpose of the statute, the restricted way in which the statutory language in similar statutes had been interpreted in other jurisdictions, and the fact that that statute’s legislative history indicated that the General Assembly intended that the Human ²⁰⁴ Relations Commission have only very limited enforcement powers. Id. at 568-76 , 325 A.2d 740 . Thus, the statute’s failure to provide express authorization for the payment of money damages was not, in and of itself, even dispositive on that issue.

In Holy Cross Hosp., Eastern Diversified, and Wielepski , the courts engaged in similar analyses in determining whether an agency had the challenged power. Hence, all these cases indicate that whether a power to impose a certain penalty is expressly conferred upon an agency is not determinative of whether an agency has such power. Rather, a court must examine the purpose of the statute creating the agency, its legislative history, and any relevant case law to determine whether the legislature intended that the agency have the challenged authority. See Eastern Diversified, 319 Md. at 49-55 , 570 A.2d 850 ; Holy Cross Hosp., 283 Md. at 685-90 , 393 A.2d 181 ; Gutwein, 272 Md. at 568-77 , 325 A.2d 740 ; Wielepski, 98 Md.App. at 726-31 , 635 A.2d 43 .

Accordingly, we turn to that examination. The General Assembly first enacted legislation establishing State control over horseracing in 1920. Division of Fiscal Research, Maryland General Assembly, Maryland Horseracing Historical Overview 1 (1989); see also 1920 Md.Laws, chap. 273. 3 There were two objectives to this statute: the regulating of horseracing and the raising of revenue. See 6 Opp.

Att’y Gen. 480 (1921); see also Commission to Study the Racing Laws of the State of Maryland, First Report 1-2 (1946). The legislature dealt with the latter goal in some detail, but it said very little about the regulation of racing. 6 Opp. Att’y Gen. at 480. Thus, although the original statute (as well as the current Act), specifically discusses the regulation of those who hold racing events, it provides little in the way of ²⁰⁵ regulation of jockeys, trainers, and owners.

Id. For example, the Act expressly provides the Commission with the power to license, deny a license, suspend or revoke a license, or impose monetary penalties on those holding “race meetings,” see § 11—101(g) and (h) and § 11-308, but provides the Commission with no express power to license, deny a license, suspend or revoke a license, or impose monetary penalties on jockeys, trainers, and owners. The Act does, however, grant the Racing Commission broad general powers to regulate horse racing and betting: § 11-209 General powers of Commission (a) In general.—Besides its powers under this title, the Commission has the powers necessary or proper to carry out fully all the purposes of this title. § 11-210 Regulatory power of Commission (a) In general.—Except as provided in subsection (b) of this section, the Commission may: (1) adopt regulations and conditions to govern racing and betting on racing in this State Furthermore, the Act expressly prohibits the Commission from adopting certain regulations; regulations permitting the Commission to fíne or penalize owners are not among the regulations expressly prohibited. See § ll-210(b).

From the very beginning, questions arose as to the ability of the Commission to regulate persons other than those who hold the race meetings. In 1921, the Attorney General was asked whether the above quoted general powers permitted the Commission to require that jockeys and trainers be licensed. 6 Opp. Att’y Gen. at 480. In concluding that licensing of jockeys and trainers was within the scope of authority granted the Commission, the Attorney General specifically recognized that “no control over them [was] given the Commission by any express provision in the [Act],” id. at 481, and that very few of the Commission’s express statutory powers dealt with “the regulation of racing itself.” Id. at 480.

The Attorney General noted that the reason for this was that the legislature “realized that the formulation of adequate, practical and satisfacto ²⁰⁶ ry regulations [governing those involved in racing itself] involved a knowledge of racing conditions which the General Assembly did not possess, and which could only be acquired by a careful study of racing, and of the many problems connected therewith.” Id. The Attorney General, citing to the statutory predecessors of §§ 11-209 and 11-210, concluded that even though the Commission was given no express statutory control over, let alone power to license, jockeys and trainers, the General Assembly intended that it have this power. He reasoned: There can be no full and complete control of racing on the part of the Commission, unless it controls those upon whose skill and honesty the outcome of the race so largely depends. All other regulations, rules and conditions prescribed by the Commission for the purpose of securing clean racing and elevating the standards by which racing is to be conducted in Maryland could be nullified by dishonest and purchasable jockeys and trainers....

I do not believe, ... that the Legislature intended that jockeys and trainers, whose probity is so essential a feature of clean racing, should be entirely beyond the control of the Commission .... [The Act was] clearly designed to give the Commission broad and sweeping powers of control and regulation of racing, and I am of the opinion that, in spite of the [limited] authorization expressly conferred therein, the Commission possess practically unlimited power to pass, promulgate and enforce such rules and regulations actually dealing with the control of racing as in the judgment of the Commission appear to be desirable and necessary. Id. at 481-82 (emphasis added). Thus, since the General Assembly had given the Commission “full power” to regulate horseracing, the Attorney General found that the Commission could not do so without the ability to “full[ly] and completely]” control “those upon whose honesty and skill the outcome of races depended.” Id. 480-81. In 1946, the Court of Appeals settled many of the questions regarding the scope of the Commission’s power when it held ²⁰⁷ that the Commission’s statutory authority to regulate included the power to make rules “regulating the conduct of trainers, jockeys, owners, and generally regulate all matters pertaining to horse racing, in order that they may be conducted fairly, decently and cleanly but may not revoke a license except for cause.” Mahoney v. Byers, 187 Md. 81, 84 , 48 A.2d 600 (1946).

See also Commission to Study the Racing Laws of the State of Maryland, Final Report 2 (1946). Although the appellate courts of this State have never addressed the precise question raised here, ie., the authority of the Commission to impose fines on licensed owners, 4 they have repeatedly recognized and reiterated the broad powers conferred on the Racing Commission. See Heft v. Maryland, Racing Comm’n, 323 Md. 257, 263-64 , 592 A.2d 1110 (1991); Silbert v. Ramsey, 301 Md. 96, 105 , 482 A.2d 147 (1984); Jacobson v. Maryland Racing Comm’n, 261 Md. 180, 183 , 274 A.2d 102 (1971); Greenfeld v. Maryland Jockey Club, 190 Md. 96, 104 , 57 A.2d 335 (1948); Brann v. Mahoney, 187 Md. 89, 102-03 , 48 A.2d 605 (1946); Mules v. Maryland Racing Comm’n, 30 Md.App. 533, 546 , 353 A.2d 664 , cert. denied, 278 Md. 729 (1976). See also Lemberos v. Laurel Racecourse, Inc., 489 F.Supp. 1376, 1389 (D.Md. 1980) (holding that Commission’s regulations delegating broad power to the stewards, including the power to fíne, to be reasonable and consistent with the purposes of the Maryland statutes regulating horse racing).

Moreover, in one of these cases, Jacobson v. Maryland Racing Comm’n., the Commission had imposed a $2500 fíne on Mr. Jacobson, a horse owner and trainer. As Lussier points out, Mr. Jacobson specifically did not “appeal from that part of” the Commission order finding that he had violated a regulation and imposing a “money fine.” See Record Extract at 12, Jacobson v. Maryland Racing Comm’n. Accordingly, there is no holding on this issue. Interestingly, however, there is no question in the opinion as to the