Lussier v. Maryland Racing Com'n

• Decision Date: 01 September 1993
• Docket Number: No. 1461,1461
• Parties: Frank P. LUSSIER v. MARYLAND RACING COMMISSION. ,
• Court: Court of Special Appeals of Maryland

Page 190

100 Md.App. 190

640 A.2d 259

Frank P. LUSSIER v. MARYLAND RACING COMMISSION.

No. 1461, Sept. Term, 1993.

Court of Special Appeals of Maryland.

April 29, 1994.

Glenn E. Bushel (Brocato, Price & Bushel, P.A., on the brief), Baltimore, for appellant.

Bruce C. Spizler, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.

Before WILNER, C.J., and MOTZ and MURPHY, JJ.

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 Rockingham Park in Salem, New Hampshire. The tatoo branding 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 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 clocker 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 clocker 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 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 ("[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. 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 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...