Decision Date01 December 1999
Docket NumberNo. 1616,1616
Citation130 Md. App. 23,744 A.2d 558
CourtCourt of Special Appeals of Maryland

744 A.2d 558
130 Md.
App. 23

Barbara J. BELOTTI

No. 1616, Sept. Term, 1998.

Court of Special Appeals of Maryland.

December 1, 1999.

Reconsideration Denied February 10, 2000.

744 A.2d 560
Bruce C. Spizler, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellant

Robert K. Thompkins (Patton Boggs, LLP, on the brief), Washington, DC, James H. Falk, Sr. (The Falk Law Firm, PLC, on the brief), Washington, DC, for appellee.

Argued before THIEME, MARVIN H. SMITH (Retired, Specially Assigned), and J. FREDERICK SHARER (Specially Assigned), JJ.

744 A.2d 559
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?

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
744 A.2d 561
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 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 drug2 to a horse prior to a race is not permitted. COMAR &.04A-B.3 Indeed, COMAR flatly states, "A horse participating in a race may not carry a drug in its body."

744 A.2d 562
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[.]" COMAR
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 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 This is so as "[t]rainers 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 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 purse ... received by the owner...." COMAR The stewards may also order "[r]edistribution 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

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, i.e., a "bleeder," only if the horse has qualified for its use.5 COMAR 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 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

744 A.2d 563
Only a veterinarian licensed by the Commission may administer Lasix to a horse qualified to receive the drug. COMAR In addition, "[t]he veterinarian who administers Lasix to a horse scheduled to race shall prepare a written certification indicating that Lasix was administered." COMAR "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 "The stewards ... shall order a horse scratched if the written certification is not received in a timely manner." COMAR Any horse racing on Lasix shall be so denoted in the official program, which must also include a specific indication that a horse is racing on Lasix for the first time. COMAR "When the official program contains past performance lines, those past performance lines shall indicate when a horse raced on Lasix." COMAR Finally, a post-race quantification limits the amount of Lasix a horse may carry in its body during a race. COMAR

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

744 A.2d 564
and 9:30 a.m. and the horses were placed in their respective stalls at the receiving barn. Shortly thereafter, Dr. 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...

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