Harbour v. Colorado State Racing Commission, 72--117

• Decision Date: 09 January 1973
• Docket Number: No. 72--117,72--117
• Citation: 32 Colo.App. 1,505 P.2d 22
• Parties: Delmer HARBOUR, Plaintiff-Appellant, v. The COLORADO STATE RACING COMMISSION, Defendant-Appellee, F. Richard Hite et al., Defendants. . I
• Court: Colorado Court of Appeals

Page 22

505 P.2d 22

32 Colo.App. 1

Delmer HARBOUR, Plaintiff-Appellant, v. The COLORADO STATE RACING COMMISSION, Defendant-Appellee F. Richard Hite et al., Defendants.

No. 72--117.

Colorado Court of Appeals, Div. I.

Jan. 9, 1973.

Vranesic & Right, Paul E. Vranesic, Ben Klein, Denver, for plaintiff-appellant.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., J. K. Kreutz, Asst. Atty. Gen., Denver, for defendant-appellee Colorado State Racing Commission.

COYTE, Judge.

Plaintiff, holder of an owner and trainer license issued by the Colorado Racing Commission, appeals a judgment of the district court affirming a ruling of the Colorado Racing Commission whereby plaintiff's license was suspended for a period of twelve months. Plaintiff's horse, 'Snazzy Man,' was the winner of the tenth race at the Rocky Mountain Quarter Racing Association on October 18, 1969. An analysis of a urine sample taken from the horse following the race was found to contain apomorphine, a drug which is a narcotic and a stimulant. The State Veterinarian testified that apomorphine is a drug which may not be administered to horses racing in the state of Colorado and that its use was contrary to the rules and regulations of the Colorado Racing Commission. The Commission found that the horse 'Snazzy Man' had been stimulated with a forbidden narcotic, and that because there was no evidence indicating that plaintiff was without fault or blameless in the administration of the drug, plaintiff was in violation of Rules 11.14 and 11.15, as adopted by the Colorado Racing Commission. These rules are as follows:

'11.14--Should the laboratory analysis of saliva, urine, or other sample taken from a horse indicate the presence of a forbidden narcotic, stimulant, depressant or local anesthetic, such shall be deemed evidence that the trainer of the horse is responsible for the administration of said drug. When the results of a positive analysis are received from the State Chemist the Stewards or their representatives shall immediately conduct a thorough investigation of the incident so as to determine who is responsible for the administration of said drug. Pending the Stewards formal hearing the Stewards may make such temporary order with regard to suspension of trainer, groom, owner or other persons as will protect the public. Said order shall be effective for a period not to exceed three days. Within three days of the receipt of a positive from the State Chemist, the Stewards shall hold a formal hearing to establish responsibility for the administration of said drug. At said hearing and any hearing before the commission the trainer of said horse shall be deemed responsible as set forth herein. Unless other evidence of sufficient credibility and weight is presented, the Stewards may make a finding in accordance with said evidence. If the Stewards or Commissioners are of the opinion that the evidence proves the trainer is without fault and is blameless in connection with the administration of said drug, the Stewards or Commissioners shall exonerate the trainer completely. The Stewards or Commissioners shall make such order or orders suspending or fining, or both, the person or persons found responsible, after the formal hearing, for the administration of said drug. The owner of such horse shall not participate in the purse distribution of that race.'

'11.15--The owner, trainer, groom or any other person having charge, custody or care of the horse is obligated to protect the horse properly and guard it against such administration or attempted administration, and if the Stewards shall find that any such person has failed to show proper protection and guarding of the horse, or if the Stewards find that any owner or trainer is guilty of negligence with respect thereto, they shall impose such punishment and take such other action as they deem proper under any of the rules including reference to the Commission.'

Plaintiff contends that the Racing Comsion failed to comply with certain provisions of the Administrative Code and that Rules 11.14 and 11.15 of the Racing Commission are unconstitutional delegations of power. Plaintiff concludes that therefore the Commission was without authority to suspend his license. We disagree, and affirm the judgment of the district court.

The plaintiff asserts several alleged violations of the Administrative Code. He complains of the absence of a sworn complaint setting forth the details of the charges against the plaintiff. 1969 Perm.Supp., C.R.S.1963, 3--16--3(5), provides that proceedings for the suspension of a license may be commenced by the agency upon its own motion or by the filing of a written complaint with the agency. The Racing Commission was authorized to proceed by ordering a hearing solely on its own motion. Colorado Racing Commission v. Conner, 30 Colo.App. 72, 490 P.2d 75.

The hearing before the Racing Commission was subsequent to hearing before the Board of Stewards wherein plaintiff appeared and was apprised of the charges. The Board of Stewards suspended plaintiff, and plaintiff, by his attorney, requested a hearing 'at as early a date as possible concerning said suspension' before the Racing Commission. That request was granted and plaintiff's attorney was notified of the time, date and place of the hearing as well as the rules of the Racing Commission which plaintiff was charged with violating. The plaintiff had adequate notice of the hearing and its purpose. Since the promptness of the...