MARYLAND RACING COMMISSION v. Belotti

MARVIN H. SMITH, Judge (Retired, Specially Assigned). The Maryland Racing Commission (the Commission) appeals the decision of the Circuit Court for Baltimore City that reversed the Commission’s disqualification of a horse owned by Barbara Belotti, appellee, and resultant redistribution of purse monies. For our review, the Commission presents the following questions, which we have rephrased slightly: I. Did the circuit court err in reversing the decision of the Maryland Racing Commission to disqualify a horse from its first place finish after the horse participated in the race while carrying an impermissible drug in its body?

II

Was it reversible error not to provide notice of a Stewards’ 1 hearing to the owner of the horse? ²⁷ This case concerns the Commission’s response to the presence of an impermissible drug, Lasix, found in a post-race urine sample taken from a horse who had won its race at Laurel Park. We reverse the circuit court because the decision to disqualify the horse lay squarely within the discretion of the Commission. The Maryland Racing Commission and its Control of the Administration of Drugs to Horses in Thoroughbred Racing The Commission is provided for in title 11 of the Business Regulation Article of the Maryland Code. Subtitle 2 establishes the Commission, provides for its membership and staff, and sets forth its general powers.

The powers of the Commission are not particularized; instead, section 11-210 authorizes the Commission to “adopt regulations and conditions to govern racing and betting on racing in the State[.]” In Jacobson v. Maryland Racing Comm’n, 261 Md. 180 , 274 A.2d 102 (1971), the Court of Appeals discussed the broad powers delegated to the Commission: Horse racing is an endeavor and undertaking that necessarily must be the subject of intensive, extensive and minute regulation. It exists only because it is financed by the receipts from controlled legalized gambling which must be kept as far above suspicion as possible, not only to sustain and profit the racing fraternity but to feed substantial ... millions to the State’s revenues. Not surprisingly the legislature has given the Commission full power to control racing. Id. at 183 , 274 A.2d 102 (citation omitted). “The Legislature’s purpose in granting to the Racing Commission the authority to promulgate rules was to assure that horse races in Maryland are ‘conducted fairly, decently and clean[ly].’ ” Heft v. Maryland Racing Comm’n, 323 Md. 257, 263-64 , 592 A.2d 1110 (1991) (quoting Mahoney v. Byers, 187 Md. 81, 84 , 48 A.2d 600 (1946)). “The statute combined with the Commission’s rules and regulations provide a comprehensive scheme for the regulation ²⁸ of horse racing in Maryland.” Silbert v. Ramsey, 301 Md. 96, 105 , 482 A.2d 147 (1984).

The regulations of the Commission are more than merely helpful hints to those engaged in the horse racing industry. They are also precise rubrics, intended to ensure the integrity of the industry and to protect the public against fraud and corruption. They do this, in part, by establishing certain specific procedures to be followed in the running of races, by requiring nearly everyone participating in the conduct of racing to be licensed, and by placing specific responsibility on the various licensees to follow the mandated procedures. Sanders v. Rowan, 61 Md.App. 40, 58 , 484 A.2d 1023 (1984).

See also Maryland Racing Comm’n v. Castrenze, 335 Md. 284, 294 , 643 A.2d 412 (1994) (“[T]he Commission performs an active role of policy formation in order to ensure the integrity of horse racing in this State”). The extensive regulations promulgated by the Commission address the administration of drugs to horses racing in Maryland. In general, the administration of a drug 2 to a horse prior to a race is not permitted. COMAR 09.10.03.03A(19) & ²⁹ .04A-B. 3 Indeed, COMAR 09.10.03.04B flatly states, “A horse participating in a race may not carry a drug in its body.” To enforce the drug prohibition, the Stewards may order the “[p]ost-race taking of urine, blood, or other samples for testing purposes from any horse which participated in a race[J” COMAR 09.10.03.04E(l)(a).

The presence of a drug in the post-race urine, blood, or other sample taken from a horse is prima facie evidence that the: (1) Horse was administered a drug and carried the drug in its body during the race; and (2) Drug was administered by the person or persons having control, care, or custody of the horse. COMAR 09.10.03.04C. In addition, the “trainer is the absolute insurer of, and responsible for, the condition of each horse the trainer enters in a race, regardless of the acts of third parties.” COMAR 09.10.03.04D. This is so as “[tjrainers having charge, custody, or care of horses are obligated to protect properly the horses and guard against any violation of the Corrupt Practices Rules.” COMAR 09.10.01.57Q.

If a horse is found to have carried a drug in its body, the stewards may order the ... “[d]enial, forfeiture, and prompt return of a ³⁰ purse ... received by the owner....” COMAR 09.10.03.04E(l)(b). The stewards may also order “Redistribution of the items denied, forfeited, and returned, resulting from the disqualification of a horse found to have carried a drug in its body during a race, to those owners whose horses were advanced ' by the disqualification.” COMAR 09.10.03.04E(l)(c). One exception to the drug prohibition is provided for “bleeders” — horses that suffer from exercise induced pulmonary hemorrhaging (EIPH). 4 Lasix may be administered to a horse, ie., a “bleeder,” only if the horse has qualified for its use. 5 COMAR 09.10.03.08A. To qualify for the use of Lasix, any one of three conditions must be satisfied: (1) the horse has been observed to have bled from at least one nostril during or after a race or workout; (2) the horse has exhibited exercise induced pulmonary hemorrhaging resulting in a clear ³¹ flow of blood in the lumen of the respiratory tract; and (3) the horse has qualified for the use of Lasix in another jurisdiction in accordance with criteria comparable to that required by the Commission.

COMAR 09.10.03.08B. 6 Only a veterinarian licensed by the Commission may administer Lasix to a horse qualified to receive the drug. COMAR 09.10.03.08G(1). In addition, “[t]he veterinarian who administers Lasix to a horse scheduled to race shall prepare a written certification indicating that Lasix was administered.” CO-MAR 09.10.03.08G(3)(a). “The written certification shall be in the possession of a designated Commission representative at least 1 hour before the horse is scheduled to race.” COMAR 09.10.03.08G(3)(b). “The stewards ... shall order a horse scratched if the written certification is not received in a timely manner.” COMAR 09.10.03.08G(3)(c). Any horse racing on Lasix shall be so denoted in the official program, which must ³² also include a specific indication that a horse is racing on Lasix for the first time.

COMAR 09.10.03.081(1). “When the official program contains past performance lines, those past performance lines shall indicate when a horse raced on Lasix.” COMAR 09.10.03.081(2). Finally, a post-race quantification limits the amount of Lasix a horse may carry in its body during a race. COMAR 09.10.03.08G(2). Factual Background “La Beau,” “Northern Nights,” and “Mocefis” were three horses trained by James Lawrence, II.

On July 30, 1997, Mr. Lawrence telephoned Laurel Park and entered the horses in three different races that were to be run on August 2, 1997. The entry blanks for “La Beau,” who is owned by Barbara Belotti, and “Northern Nights” indicated that they were qualified to receive Lasix prior to running in their respective races. The third horse, “Mocefis,” was not listed as being Lasix qualified. When Mr. Lawrence had called to enter the horses, however, he indicated that “La Beau” should not be given Lasix.

The night before the race in question, Dr. David Zipf, a state veterinarian, reviewed the list of horses scheduled to race the following day to determine their eligibility to receive Lasix. “La Beau” was designated to receive Lasix, but he was not Lasix qualified. 7 Dr. Zipf wrote “no” alongside the name “La Beau” and informed the Lasix clerk, George Russell, that the horse was not eligible to receive Lasix. On the morning of August 2, 1997, Mr. Lawrence and an assistant, Howard Peyton, prepared the horses for their races. While at Mr. Lawrence’s training center in Cecil County, the horses were fed a commercial feed that contained no additives. The horses were then loaded onto a van and driven by Mr. Peyton to Laurel Park.

Peyton arrived at the Park between 9:00 and 9:30 a.m. and the horses were placed in their respective stalls at the receiving barn. Shortly thereafter, Dr. ³³ Morgan Dove, a veterinarian employed by Mr. Lawrence, met with Mr. Peyton and informed him of the respective times he would return to treat “La Beau” and “Northern Nights” with Lasix. Mr. Peyton questioned the administration of Lasix to “La Beau” and Dr. Dove showed him a slip made out by Racing Commission personnel indicating that “La Beau” was to be treated with Lasix. Mr. Lawrence arrived at Laurel Park at approximately 11:00 a.m. and Mr. Peyton told him of Dr. Dove’s information that “La Beau” was to receive Lasix.

Mr. Lawrence went to the Lasix Office where he informed Mr. Russell that “La Beau” was not to receive Lasix. Russell told Lawrence that only Dr. Zipf was authorized to take a horse off the Lasix list. Mr. Lawrence then located Dr. Zipf, who stated that he had already told Mr. Russell that “La Beau” was not a Lasix horse. Lawrence returned to Russell, informed him of his conversation with Zipf, and Russell stated that he would take care of the matter.

Lawrence and Peyton then prepared “Mocefis” for the third race and led the horse to the paddock. An unidentified groom, who spoke little English, was left with “La Beau” and “Northern Nights” to hold “Northern Nights” when Dr. Dove came to treat the horse with Lasix. In the meantime, Dr. Dove was informed by Dr. Peacock, another state veterinarian, that “La Beau” was not to receive Lasix, so Dove squirted out the syringe of Lasix he had intended to give “La Beau.” Dr. Dove was also called to the Lasix office, where he was again informed that “La Beau” was not to receive Lasix. At that time, Dr. Dove’s assistant, Joshua Shofrogh, crumpled up the Lasix slip for “La Beau” and threw it in the trash.

Later, Dr. Dove and Mr. Shofrogh returned to the barn to treat “Northern Nights,” who was running in the ninth race. Dr. Dove read the horse’s lip tatoo 8 while Shofrogh matched it ³⁴ to the number written on the Lasix slip. Dr. Dove then treated “Northern Nights” with Lasix. “La Beau” ran in the eighth race and finished first in a field of nine, earning $22,000 in purse monies. Following the race, a urine sample was collected from “La Beau.” Five days later, the analysis was returned from the Commission laboratory.

It revealed the presence of the drug furosemide (Lasix) and/or a derivative thereof. “Northern Nights” ran in the ninth race, but finished out of the money so no testing was done on that horse. On August 8, 1997, the Stewards notified Mr. Lawrence by telephone of the positive test. Mr. Lawrence declined his right to have the split sample tested. 9 A Stewards’ hearing was held on August 20, 1997. Following the hearing, the Stewards found that: (1) “La Beau” was not qualified for the use of Lasix under COMAR 09.10.03.08A; (2) the presence of Lasix in “La Beau’s” post-race urine sample constituted a violation of COMAR 09.10.03.04B & C; and (3) Mr. Lawrence, as the trainer, was responsible for this violation under CO-MAR 09.10.03.04C(2) & .04D.

In light of those findings, the Stewards ordered that: (1) Mr. Lawrence pay a fine of $500; (2) “La Beau” be disqualified from all purse monies; and (3) the purse from the eighth race be redistributed. Mrs. Belotti received no notice of the Stewards’ hearing and was not in attendance. Mr. Lawrence and Mrs. Belotti appealed the Stewards’ decision to the Commission. In its written memorandum and order, the Commission made the following conclusions of law: 1. “La Beau” was not qualified for the use of Lasix as required under COMAR 09.10.03.08(A). ³⁵ 2. “La Beau” participated in the eighth race at Laurel Park on August 2, 1997 while carrying a drug (Lasix) in its body in violation of COMAR 09.10.03.04(B). 3.

Although it is unclear as to the method or means by which Lasix was in the body of “La Beau”, James L. Lawrence II, as the trainer of the horse, is the absolute insurer of, and was responsible for, the condition of the horse, regardless of the acts of third parties. COMAR 09.10.03.04(D). 4. Considering that “La Beau” participated in the race while carrying a drug in its body, the horse should be disqualified from its first place finish and placed last. 5. Considering the extenuating circumstances attendant to this matter, the absence of bad faith, and the licensing history of trainer Lawrence, the imposition of a fine is not warranted.

The Commission then ordered that “La Beau” be disqualified and the purse monies distributed accordingly, but that no other sanction be imposed upon the trainer, Mr. Lawrence. Mrs. Belotti appealed to the circuit court. It reversed the Commission’s decision and ordered that the first place purse be distributed to her. The court’s decision was based on two grounds.

First, the court concluded that although the Commission claimed that the absolute insurer rule did not apply to Mrs. Belotti, that was precisely the rule applied by the Commission. The court concluded that the rule could only be applied to a “concededly innocent owner” through the doctrine of respondeat superior. The court explained that if the Commission’s unstated reason was that the trainer is the absolute insurer of the horse and the horse was disqualified irrespective of the lack of culpability of the trainer and owner, then the absolute insurer rule would create an irrebuttable presumption, which, in light of Mahoney v. Byers, 187 Md. 81 , 48 A.2d 600 (1946), was unconstitutional. The court determined that “[t]he Racing Commission may not sanction a trainer or forfeit the purse of an owner without some evidence ³⁶ in the record that they were in some degree culpable, no matter how slight that degree might be.” Second, the court determined that reversal was required as the hearing before the Stewards was conducted without notice to Mrs. Belotti and, thus, without her presence.

The court wrote: “For the Stewards to forfeit an owner’s purse without notifying the owner of the right to be present at a hearing, is clearly violative of due process.” Standard of Review In reviewing the decision of the Racing Commission, our role is the same as that of the circuit court. Department of Health and Mental Hygiene v. Shrieves, 100 Md.App. 283, 303-304 , 641 A.2d 899 (1994). As such, we do not directly review the decision of the lower court and, instead, review the administrative decision itself. Public Serv.

Comm’n of Md. v. Baltimore Gas & Elec. Co., 273 Md. 357, 362 , 329 A.2d 691 (1974). See also Consumer Protection Div. v. Consumer Publishing Co., 304 Md. 731, 749 , 501 A.2d 48 (1985) (“Generally, in reviewing agency action ... a court may only consider the record made before the administrative agency.”); United Steelworkers v. Bethlehem Steel, 298 Md. 665, 679 , 472 A.2d 62 (1984) (“in judicial review of agency action the court may not uphold the agency order unless it is sustainable on the agency’s findings and for the reasons stated by the agency.”) Under Maryland Code (1974, 1999 Repl.Vol.), § 10-222(h) of the State Government Article, a reviewing court may (1) remand the case for further proceedings; (2) affirm the' final decision; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the final decision maker; (iii) results from an unlawful procedure; (iv) is affected by any other error of law; ³⁷ (v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or (vi) is arbitrary or capricious. The test for reviewing the factual findings of administrative agencies is that of “substantial evidence,” which has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Supervisor v. Group Health Ass’n, 308 Md. 151, 159 , 517 A.2d 1076 (1986). “The scope of review ‘is limited “to whether a reasoning mind reasonably could have reached the factual conclusion the agency reaehed[.]” ’ ” Bulluck v. Pelham Wood Apts., 283 Md. 505, 512 , 390 A.2d 1119 (1978) (quoting Dickinson-Tidewater v. Supervisor, 273 Md. 245, 256 , 329 A.2d 18 (1974)).

See also Liberty Nursing Ctr. v. Department of Health and Mental Hygiene, 330 Md. 433, 443 , 624 A.2d 941 (1993) (“if reasoning minds could reasonably reach the conclusion reached by the agency from the facts in the record, then it is based upon substantial evidence, and the court has no power to reject that conclusion”). In applying the substantial evidence test, the reviewing court must not substitute its expertise for that of the agency. State Admin. Bd. of Election Laws v. Billhimer, 314 Md. 46, 58 , 548 A.2d 819 (1988), cert. denied, 490 U.S. 1007 , 109 S.Ct. 1644 , 104 L.Ed.2d 159 (1989).

See also Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 398 , 396 A.2d 1080 (1979) (substantial evidence review “should hot consist of judicial fact-finding or a substitution of judicial judgment for agency judgment”). Moreover, the court “must review the agency’s decision in the light most favorable to the agency, since decisions of administrative agencies are prima facie correct and carry with them the presumption of validity.” Baltimore Lutheran High School Ass’n v. Employment Sec. Admin., 302 Md. 649, 662-63 , 490 A.2d 701 (1985). In contrast to the agency’s findings of fact, when “the issue before the agency for resolution is one solely of law, ordinarily no deference is appropriate and the reviewing court may substitute its judgment for that of the agency.” Liberty ³⁸ Nursing Ctr., 330 Md. at 443 , 624 A.2d 941 . “[A] reviewing court is under no constraints in reversing an administrative decision which is premised solely upon an erroneous conclusion of law.” People’s Counsel for Baltimore County v. Maryland Marine Mfg., 316 Md. 491, 497 , 560 A.2d 32 (1989). “A challenge as to a regulatory interpretation is, of course, a legal issue.” Department of Human Resources v. Thompson, 103 Md.App. 175, 191 , 652 A.2d 1183 (1995). “In brief, so long as the agency’s decision is not predicated solely on an error of law, we will not overturn it if a reasoning mind could reasonably have reached the conclusion reached by the agency.” Billhimer, 314 Md. at 59 , 548 A.2d 819 . Discussion I. The Commission alleges that this matter originally involved two- parties, Mrs. Belotti and Mr. Lawrence, “La Beau’s” owner and trainer, respectively, and that separate issues applied to each party.

As to Mrs. Belotti, the question was whether “La Beau” raced with an impermissible drug in its body and the resultant redistribution of purse monies after the horse was disqualified. The question regarding Mr. Lawrence was what, if any, sanction should be imposed as he was responsible for the horse’s participating in the race while carrying the impermissible drug. The Commission alleges that the absolute insurer rule does not apply to Mrs. Belotti, that it did not apply the rule to her, and that the circuit court erred in determining that the Commission had, in actuality, applied the rule through the doctrine of respondeat superior, thus creating an irrebuttable presumption violative of Mahoney v. Byers, 187 Md. 81 , 48 A.2d 600 (1946). The Commission also alleges that the circuit court misstated the facts of the case in its decision, including: (1) that Lasix is not a performance enhancing drug; (2) that “La Beau” was qualified to receive Lasix subsequent to the incident in question; and (3) that the Commission was responsible for “a ³⁹ virtual comedy of errors” that allegedly resulted in the erroneous administration of Lasix to “La Beau.” We agree with the Commission that it did not apply the absolute insurer rule to Mrs. Belotti and that it could disqualify “La Beau” and deny Mrs. Belotti the purse monies since the horse raced with an impermissible drug in its body, regardless of how the drug was administered to the horse.

We first note that although the actions regarding Mrs. Belotti and Mr. Lawrence were based on separate COMAR regulations, they both arose from the presence of Lasix in “La Beau’s” body as discovered by the post-race urinalysis. From that point, the application of the regulations diverged with different consequences for the two parties. We stress, however, that Mr. Lawrence is not a party to this appeal and we do not discuss the Commission’s decision as it affected Mr. Lawrence. In Mahoney v. Byers, 187 Md. 81 , 48 A.2d 600 (1946), Benzedrine was found in the post-race saliva sample taken from a horse and the Commission suspended the trainer’s license for one year.

The applicable section of the Commission’s rules provided: (a) No person shall administer, or knowingly or carelessly permit to be administered to any horse entered for a race, any drug in any way within forty-eight (48) hours before the time of the race. >■< % % $ # (d) If the Commission finds from analysis of the saliva or urine, or blood taken from a horse on the day of a race in which the horse ran, or from other competent evidence, that any drug has been administered to the horse within forty-eight (48) hours before the race, the trainer shall be subject to the penalties prescribed in subsection (e) hereof, whether or not he administered the drug, or knowingly or carelessly permitted it to be administered. The fact that the analysis shows the presence of a drug shall be conclusive evidence either that there was knowledge of the fact on the part of the trainer or that he was guilty of carelessness in permitting it to be administered. [Emphasis added.] ⁴⁰ The Court of Appeals held that the irrebuttable presumption established in the above quoted rule was unconstitutional. 187 Md. at 87 , 48 A.2d 600 . The Court commented: From the fact that benzedrine was found in the saliva taken from the horse after the race, this irrebuttable presumption is substituted for facts necessary to find the appellee guilty under paragraph (d) of the rule. No facts or circumstances surrounding the stabling, care and attention given the horse after it arrived at Pimlico is to be considered.

The appel-lee’s reputation as a clean, straight, decent jockey and trainer, which he has borne among the racing world for years, and which was attested to by many witnesses of high standing, is not to be considered in determining his guilt or innocence. In fact, the Commission attested to appellee’s fine record, as will appear from the remarks made by its chairman, contained in the record. All this, like so much chaff, is to be blown away as waste in the operation of the machinery set up under this paragraph. This irrebuttable presumption destroyed the right of appellee to offer evidence to establish his innocence.

If this is “just,” then the term “unjust” is without meaning. The Commission is a creature of the Legislature and the Legislature does not possess the power under the State Constitution to prevent one from making a defense to a charge brought against him by substituting an irrebuttable presumption for facts. Such a law would be arbitrary, illegal, capricious and hence unconstitutional. “That the trial of facts, where they arise, is one of the greatest securities of the lives, liberties and estate of the People.” Art. 20, Md. Declaration of Rights. This rule prevents the trial of facts and calls for the revocation of the license without cause shown. 187 Md. at 86-87 , 48 A.2d 600 .

Years later, the Court of Appeals was confronted with the validity of a similar rule in Maryland Racing Comm’n v. McGee, 212 Md. 69 , 128 A.2d 419 (1957). There, a horse won the sixth race at Bowie, but a post-race urinalysis showed a ⁴¹ drug in the nature of caffeine, which could embrace amphetamine, benzedrine, cocaine, and morphine. Id. at 71 , 128 A.2d 419 . The rule in question stated: No person shall administer, or cause or knowingly permit to be administered, or connive at the administration of, any drug to any horse entered for a race.

Every owner, trainer, or groom must guard, or cause to be guarded, each horse owned, trained or attended by him in such manner as to prevent any person or persons from administering to the horse, by any method, any drug prior to the time of the start of the race which is of such character as to affect the racing condition of the horse. Relying on this rule, the Commission suspended the trainer’s license for six months. The Court of Appeals determined that the evidence presented to the Commission demonstrated that the trainer had engaged a night watchman to guard his many horses, including the horse in question. Nonetheless, the horses were housed in separate barns, the watchman had to travel between the barns to feed the horse, and the lighting conditions were inadequate in the barn where the horse in question was kept.

In addition, the watchman was aged and was prevented from spending the night in the barn due to extreme weather. The trainer was also aware that a former employee, who the trainer had barred from the track and refused a day’s pay, was working in the barn where the horse in question was stabled. Id. at 73 , 128 A.2d 419 . As a result, there was ample evidence before the Commission that the trainer had failed to adequately guard the horse in question.

Id. at 73, 79 , 128 A.2d 419 . The trainer argued that the rule “makes the trainer the insurer of the fact that the horse has not been given drugs before a race, because if drugs have been given, it follows that the trainer either gave them himself or was derelict in his duty under the Rule in preventing someone else from giving them, and that so construed, the Rule is unconstitutional and void under the holding of this Court in Mahoney v. Byers, 187 Md. 81 [ 48 A.2d 600 ].” 212 Md. at 74 , 128 A.2d 419 . The Court rejected that argument. It stated that Byers had held ⁴² “that an irrebuttable presumption was substituted for proof of the fact that the trainer administered the drug or was careless in allowing it to be administered and that the substitution of an irrebuttable presumption for the facts was arbitrary and unconstitutional.” 212 Md. at 75 , 128 A.2d 419 .

The Court commented that cases from other jurisdictions had held “that a rule making a trainer of race horses an insurer of the fact that the horse has not been given a drug before a race, is a valid rule which the authorities in charge of regulation of racing can make without affront to the constitutional rights of the trainer.” Id. at 75 , 128 A.2d 419 (citing Sandstrom v. California Horse Racing Bd., 31 Cal.2d 401 , 189 P.2d 17 , cert. denied, 335 U.S. 814 , 69 S.Ct. 31 , 93 L.Ed. 369 (1948), and State v. West Virginia Racing Comm’n, 133 W.Va. 179 , 55 S.E.2d 263 ). The Court of Appeals noted that those decisions “find support in many instances where responsibility or liability without fault has been held not to infringe constitutional rights.” 212 Md. at 76 , 128 A.2d 419 . The Court concluded that the rule imposing a duty on the trainer to guard the horse against administration of drugs was valid. Id. at 78 , 128 A.2d 419 .

The Court then distinguished Byers: The Byers case rejected the argument that failure to guard was carelessness within the meaning of the rule then before the Court because the Commission at that time imposed no specific requirement to guard. The Byers decision permits the inference that the Court felt such a requirement would not be unreasonable. Here there was evidence permitting the Commission to find that McGee failed to guard the horse adequately under the circumstances, and that, as a result, a drug could have been given the horse. For this reason, we see no necessity to decide whether the rule could be validly applied to a case where the trainer proved that he had taken every possible precaution and, nevertheless, a drug was detected in the system of the horse.

Id. at 78, 128 A.2d 419 . The most recent case involving the absolute insurer rule is Goldman v. Maryland Racing Comm’n, 85 Md.App. 544 , 584 ⁴³ A.2d 709 (1991). The incantation of the rule in effect at that time provided: (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. (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.... (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 horse that could result in a positive test.

If the post-race test reveals the presence of a drug, the trainer may be disciplined. In that case, horses of two trainers finished in the money. Each tested positive for the drug phenylbutazone. At oral argument, the trainers admitted that they had administered the drug to their respective horses.

Nonetheless, they attacked the validity of the provision declaring the trainer to be the “absolute insurer” of the condition of the horse. Relying primarily on Mahoney v. Byers, 187 Md. 81 , 48 A.2d 600 (1946), the trainers argued that the provision was unconstitutional as it created an irrebuttable presumption. In upholding the absolute insurer rule, then Chief Judge Wilner noted for this Court that it was not a free-standing provision. 85 Md.App. at 552 , 584 A.2d 709 . Also included in the absolute insurer provision were the duties “not to allow a horse in his custody to be started if he has reason to believe that the horse ⁴⁴ has received a drug that could result in a positive test and to guard the horse ‘in such manner and for such period of time before racing the horse so as to prevent any person from administering a drug to the horse that could result in a positive test.’ ” Id. at 552-53 , 584 A.2d 709 .

Accordingly, the absolute insurer rule “does not really impose liability without fault[J” Id. at 553 , 584 A.2d 709 . Chief Judge Wilner continued: “[A]bsent some extraordinary circumstances, of which there is no evidence in this case, the presence of a drug in a horse immediately following a race permits a fair inference either that the trainer administered the drug or allowed it to be administered or failed in his mandatory duty to guard the horse.” Id. Byers was not controlling; in fact, it was irrelevant. Id.

McGee was the controlling precedent. Id. Accordingly, this Court concluded that the absolute insurer rule, which reflects the nearly universal rule throughout the country, was a valid regulation. Id.

Based on McGee and Goldman, although the precise wording of the absolute insurer rule has been altered slightly, any challenge to the rule, as applied to a trainer, must fail. However, Mrs. Belotti claims the rule was applied to her, an owner. The “absolute insurer rule,” COMAR 09.10.03.04D, supra, by its very terms applies only to the trainer and imposes responsibility for the condition of the horse only upon the trainer. We can discern no indication from the record before us that the Commission applied this rule to Mrs. Belotti.

Indeed, no responsibility for the presence of Lasix in the horse was imposed upon Mrs. Belotti; that burden rested solely with Mr. Lawrence, albeit without a penalty as the Commission determined that the imposition of a fine was not warranted. Under COMAR 09.10.03.04E(l)(b) & (c), the Stewards may order the forfeiture and redistribution of purse monies awarded to the owner of a horse found to have carried a drug in its body. That section, however, does not assign responsibility to any individual for the presence of the drug in the horse’s body. ⁴⁵ It merely responds to the fact that a drug was present. In the case before us, the presence of Lasix in the post-race urine sample taken from “La Beau” was prima, facie evidence the horse carried the drug in its body during the race.

COMAR 09.10.03.04C(1). The purse monies awarded to Mrs. Belotti were then forfeited and redistributed without any blame or responsibility being imposed upon her. Such action by the Commission was the consequence of “La Beau’s” racing with Lasix in its body. Although this ruling had a great impact on Mrs. Belotti, in light of the broad powers delegated to the Commission to regulate, protect, and ensure the integrity of racing, it is a decision squarely within the expertise and discretion of the Commission.

The patrons at Laurel Park on the date in question had no indication that “La Beau” was racing with Lasix in its body as the race program did not denote “La Beau” as a Lasix horse, nor did the owners, trainers, and jockeys of the other horses in the race. The Commission must also protect the public, the horses, the other owners, and the jockeys. The fact that “La Beau” raced with an impermissible drug in its body has implications beyond those affecting Mrs. Belotti. It is these interests, individuals, and the sport of Thoroughbred racing that the Commission must also consider in its decision.

In such circumstances, a reviewing court should not substitute its judgment for that of the Commission. We decline to do so and the circuit court erred in so doing. Mrs. Belotti’s position is an example of the cases cited in McGee — “where responsibility or liability without fault has been held not to infringe constitutional rights.” 212 Md. at 76-77 , 128 A.2d 419 . See, e.g., Ford v. State, 85 Md. 465, 480-81 , 37 A. 172 (1897) (statute making possession of lottery tickets a crime, without knowledge as to nature of the tickets, upheld); State v. Baltimore & Susquehanna Steam, Co., 13 Md. 181 (1859) (steamship company held liable for illegal