Brunk v. NEBRASKA STATE RACING COM'N, No. S-03-698
| Citation | 700 N.W.2d 594,270 Neb. 186 |
| Decision Date | 22 July 2005 |
| Docket Number | No. S-03-699., No. S-03-698 |
| Parties | Douglas L. BRUNK, appellee and cross-appellant, v. NEBRASKA STATE RACING COMMISSION and Dennis Oelschlager, executive secretary of Nebraska State Racing Commission, appellants and cross-appellees. Stacy Lane Van Horn, appellee and cross-appellant, v. Nebraska State Racing Commission and Dennis Oelschlager, executive secretary of Nebraska State Racing Commission, appellants and cross-appellees. |
| Court | Supreme Court of Nebraska |
Patrick T. O'Brien, of Butler, Galter, O'Brien & Boehm, and Timothy R. Engler and Christopher R. Heinrich, of Harding, Shultz & Downs, Lincoln, for appellants.
David T. Schroeder, Grand Island, for appellee Douglas L. Brunk.
O. William VonSeggern, Grand Island, for appellee Stacy Lane Van Horn.
These consolidated appeals involve disciplinary actions brought by the Nebraska State Racing Commission (Commission) against equine veterinarians Douglas L. Brunk and Stacy Lane Van Horn. Following a hearing, the Commission made findings that Brunk and Van Horn had violated Commission rules pertaining to the administration of medications to racehorses and assessed disciplinary penalties. Brunk and Van Horn filed a petition for review in the district court for Lancaster County against the Commission and its executive secretary, Dennis Oelschlager. The district court determined that the evidence did not support some of the Commission's findings and accordingly modified the penalties assessed by the Commission. The Commission and Oelschlager appealed, and Brunk and Van Horn cross-appealed. We consolidated the appeals and now affirm the judgments of the district court, with one modification.
Neb.Rev.Stat. § 2-1201.01 (Reissue 1997) requires the Commission "to provide statewide regulation of horseracing in order to prevent and eliminate corrupt practices and fraudulent behavior, and thereby maintain a high level of integrity and honesty in the horseracing industry of Nebraska." The Commission served separate complaints on Brunk and Van Horn, alleging that each violated the rules and regulations of the Commission while licensed and serving as veterinarians during 2001 race meets held at Fonner Park in Grand Island, Nebraska. In January 2002, Brunk and Van Horn each filed objections and motions to dismiss the complaints, alleging that the Commission lacked jurisdiction to proceed because neither Brunk nor Van Horn were at that time licensed "racing industry participants" within the meaning of Neb.Rev.Stat. § 2-1203 (Reissue 1997). The Commission deferred ruling on these objections and motions until the hearing scheduled on the complaints.
The Commission conducted the combined evidentiary hearing on both complaints on September 23 and 24, October 22, and November 25, 2002. Evidence adduced at the hearing disclosed that during the 2001 Fonner Park meets, the Commission utilized Industrial Laboratories Company, Inc. (Industrial Laboratories), of Denver, Colorado, to conduct drug testing on the blood and urine of racehorses. Gas chromatography mass spectrometry tests performed by Industrial Laboratories revealed the presence of "Clonidine," a human blood pressure medication, in 10 horses, 1 of which tested positive for Clonidine on two occasions. The tests conducted by Industrial Laboratories did not include a quantitative analysis of the Clonidine present in the tested blood and urine samples. Veterinarians are permitted to prescribe Clonidine for administration to horses on an "off-label" basis to reduce high blood pressure, as a bronchial dilator to open a horse's airway, or as a medication for nervousness and bleeding in the lungs. Although veterinarians are permitted to prescribe Clonidine for racehorses, it is classified as a "Class 3" drug by the Association of Racing Commissioners International, Inc., and as such, may not be administered to or present in a horse on a day when it races.
The horses that tested positive for Clonidine at Fonner Park were all treated by either Brunk or Van Horn, both of Equine Veterinary Associates, P.C. (Clinic), a veterinary clinic located near the racetrack. Brunk prescribed Clonidine for eight of the horses, including Rust Ridge Range, Coronary Clare, Personal Trick, Trinity River, Pago, Jana's Fantasy, Cure the Devil, and High Dice. Van Horn prescribed the drug for the other two horses, Hesaluckycat and Vengeful Vicky.
The Commission's investigation revealed that the Clinic ordered 400 Clonidine pills on September 25, 2000, and 500 pills on March 29, 2001. The second order took place after the positive test results were reported. Between August 23 and September 29, 2000, the Clinic ordered 3,000 milliliters of liquid Clonidine at a .2 milligram concentration, and between October 2, 2000, and March 12, 2001, it ordered 2,800 milliliters of liquid Clonidine at a .8 milligram concentration.
Commission investigators found Clonidine pills in the possession of the trainers of 6 of the 10 horses. Two other trainers had also received Clonidine pills from one of the veterinarians. Four trainers were granted immunity in exchange for their truthfulness during interviews regarding the investigation. All but one of the trainers whose horses were prescribed Clonidine testified that Brunk or Van Horn told them that they could not administer the drug within 48 hours of a race. The other trainer testified that he had not received Clonidine and had no knowledge of its use. Some trainers testified that the veterinarians had given nonprohibited injections of "Bute" or "Lasix" within 24 hours of a race, but no trainer ever indicated that the veterinarians had administered injectible doses of Clonidine. All of the trainers whose horses tested positive for Clonidine were disciplined pursuant to 294 Neb. Admin. Code, ch. 18, § 18.011 (2001).
Van Horn's treatment records indicated that in 59 of 60 cases, he had given Clonidine for treatment of a horse the day after it had raced. However, in several instances, the treatment time reported was at a time that the horse had already left the park. Brunk's medication reports also contained irregularities when compared with the bills provided by the Clinic, and some prescriptions that trainers had reportedly received from Brunk or Van Horn did not appear on the medication reports of either veterinarian.
Following the hearing, the Commission entered orders finding that Brunk and Van Horn had violated various rules of the Commission and assessed discipline. The Commission determined that Brunk had violated 294 Neb. Admin. Code, ch. 14, § 14.005.06 (2001), by causing Clonidine to be administered to eight horses on race days on nine occasions and that he was responsible for the presence of Clonidine in those horses in violation of § 18.011.01. It further determined that Van Horn caused Clonidine to be administered to two horses on a race day and was responsible for the presence of the drug in those horses. The Commission also determined that Van Horn had violated Commission rules by administering "Dex" and estrogen to horses on race days without permission and that Brunk had violated a rule requiring persons licensed by the Commission to cooperate in its investigation of alleged rule violations. In addition, the Commission found that each veterinarian had violated the Commission's rules regarding drug handling, packaging, and reporting. It determined that each veterinarian would be ineligible for licensing by the Commission, be denied access to all areas under its jurisdiction until January 1, 2006, and be assessed fines in the amount of $2,000.
Brunk and Van Horn appealed to the district court pursuant to the Administrative Procedure Act. The court rejected their contention that the Commission lacked jurisdiction to assess discipline after their licenses had expired at the end of 2001. Based upon a de novo review, the district court affirmed the findings of the Commission that Brunk failed to properly handle, package, and report medications given to horses and that he failed to file reports in a timely fashion. However, it determined that there was insufficient evidence to support the Commission's determination that Brunk had failed to cooperate with the Commission during its investigation. The court also determined that there was insufficient evidence to establish that Brunk caused Clonidine to be administered to any horses on race days or that he was responsible for such administration. With respect to Van Horn, the district court affirmed the Commission's finding that he had violated rules regarding drug handling, packaging, and reporting, but found the evidence insufficient to establish other charges, including those pertaining to unlawful administration of Clonidine and two other drugs. The district court also found the evidence insufficient to support the Commission's findings that Van Horn had administered Dex and estrogen in violation of Commission rules. On the basis of these findings, the court did not modify the fines assessed by the Commission but did modify the penalties assessed by shortening Brunk's period of disqualification from licensure to July 1, 2004, and Van Horn's to July 1, 2003. The Commission and Oelschlager perfected these timely appeals and moved for consolidation, which was granted. On our own motion, we moved the consolidated appeals to our docket pursuant to our authority to regulate the caseloads of the appellate courts of this state. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).
The Commission and Oelschlager assign, regrouped and restated, that the district court erred (1) in finding the evidence insufficient to establish that Brunk and Van Horn were responsible for the presence of Clonidine in horses on race days; (2) in finding the evidence insufficient to establish that Brunk and Van Horn had...
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