Seely v. Oklahoma Horse Racing Com'n

• Decision Date: 25 August 1987
• Docket Number: No. 64123,No. 3,64123,3
• Citation: 1987 OK CIV APP 61,743 P.2d 685
• Parties: 1987 OK CIV APP 61 W.C. "Dub" SEELY, Appellant, v. OKLAHOMA HORSE RACING COMMISSION, Appellee. of Appeals of Oklahoma, Division Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 685

743 P.2d 685

1987 OK CIV APP 61

W.C. "Dub" SEELY, Appellant, v. OKLAHOMA HORSE RACING COMMISSION, Appellee.

No. 64123.

Released for Publication by Order of the Court

of Appeals of Oklahoma, Division No. 3.

Court of Appeals of Oklahoma Division No. 3.

Aug. 25, 1987.

S. Daniel George, Sallisaw, for appellant.

Michael C. Turpen, Atty. Gen. by F. Andrew Fugitt, Asst. Atty. Gen., Oklahoma City, for appellee.

BAILEY, Judge:

This case comes on for review of the denial of Appellant's petition for review of the Oklahoma Horse Racing Commission's (Appellee or Commission) imposition of fines and suspension of Appellant W.C. "Dub" Seely (Appellant or Seely). Seely was the trainer of two horses, Tree Lark and Shawnee Native, which ran in races at Blue Ribbon Downs on November 22nd and 29th of 1984, respectively. Each horse won its respective event and underwent urine testing immediately after the races. Urinalysis revealed that each horse had been administered the chemical substance, Lasix. Lasix is a drug used in horses denominated as "bleeders," and which may be used with permission of the Commission. However, no such permission was granted for either horse in question. The results of the testing were forwarded to the Commission, which issued a Notice of Hearing to Appellant.

At the hearing before the Stewards, it was established that urine from the two horses was taken and sealed, and transmitted out-of-state for blind testing. No evidence was introduced to show that the samples were in any way tampered with or tainted, which may have affected the results. The results of those tests revealed Lasix. Pursuant to rule, a "split sample" was submitted to another laboratory, which confirmed the presence of Lasix in the samples. At the hearing before the Stewards, and again before the Commission, Appellant, representing himself pro se, did not object to the testing procedure, or to the admission of the test results. The Stewards found that Appellant had violated the Oklahoma Horse Racing Commission Rules of Racing (hereinafter OHRC Rules of Racing), fined Appellant $1,500 per occurrence, and suspended Appellant for 120 days, the suspension to run concurrently for each violation. On appeal to the Commission, the Stewards' actions were affirmed. The Rule violated provides:

Rule 604. Drugs or Medication. Except as authorized by the provisions of this Article, no drug or medication shall be administered to any horse prior to or during any race. Presence of any drug or its metabolites or analogs, or any substance foreign to the natural horse found in the testing sample of a horse participating in a Commission-sanctioned race shall result in disqualification by the Stewards. When a horse is disqualified because of an infraction of this Rule, the owner or owners of such horse shall not participate in any portion of the purse or stakes; and any trophy or other award shall be returned. Oklahoma Horse Racing Commission, Rules of Racing, (Pari-Mutuel Edition), Rule 604, (June, 1986).

The Rules of Racing impose liability on the trainer of any horse testing positive for prohibited substances by establishing that a positive test is prima facie evidence that the drug was administered by or with the knowledge of the trainer, and the Rules establish permissible sanctions therefor:

Rule 902. Trainer Responsibility. The trainer is presumed to know the Rules of Racing and is responsible for the condition, soundness, and eligibility of the horses he enters in a race. Should the chemical analysis, urine or otherwise, taken from a horse under his supervision show the presence of any drug or medication of any kind or substance, whether drug or otherwise, regardless of the time it may have been administered, it shall be taken as prima facie evidence that the same was administered by or with the knowledge of the trainer or person or persons under his supervision having care or custody of such horse. At the discretion of the Stewards or Commission, the trainer and all other persons shown to have had care or custody of such horse may be fined or suspended or both. OHRC Rules of Racing supra, Rule 902.

From the imposition of fines and suspension, Appellant sought District Court review of the administrative sanctions by petition under the Administrative Procedures Act. At hearing on Appellant's petition, Appellant, now represented by counsel, sought to introduce evidence purporting to show that the procedure for the taking of urine samples and submission of samples for analysis had not been followed, arguing that the irregularities in the testing procedure invalidated the test results. The Trial Court refused to allow introduction of the proffered evidence, as outside the record of the administrative proceedings on review, and affirmed the Commission's rulings as supported by sufficient evidence. Appellant now seeks review before this Court.

On appeal, Appellant asserts predominantly two issues: (1) the error of the Trial Court in denying the admission of additional testimony and evidence, not adduced before the Horse Racing Commission previously, purporting to show that testing procedures prescribed by the Rules of Racing were not followed, and that the Trial Court should have remanded the cause to the Horse Racing Commission for the taking of additional evidence necessary for proper disposition of the issue under the Administrative Procedures Act; and (2) that the fines and suspension were unduly harsh, and should be modified. In response, Appellee asserts that Appellant challenged only the fines and suspension as excessive before the Commission, that Appellant therefore failed to preserve the issue of testing irregularity for review, and that the fines and suspension imposed by the Commission were not arbitrary or excessive as supported by competent evidence.

Initially, we note that the Oklahoma Horse Racing Commission is a creature of statute, and "is charged by clear statutory mandate to design, create and maintain a racing program which is free of even a suggestion of corruption or dishonesty." Oklahoma Park, Inc. v. Oklahoma Horse Racing Commission, 716 P.2d 666 (Okl.1986). The Commission is vested with plenary power to promulgate rules and regulations for the forceful control of race meetings in this state. 3A O.S.Supp.1983 § 203.7; OHRC Rules of Racing, supra, Rule 102; Oklahoma Park, Inc., supra. To effect this control, the Commission is also empowered to suspend or revoke licenses issued by it, and/or to impose substantial fines for the violation of the Oklahoma Horse Racing Commission's rules and regulations. 3A O.S.Supp.1983 § 204(A)(17); OHRC Rules of Racing, supra, Rules 104, 309.

Under the OHRC Rules of Racing, the Stewards constitute the first line of enforcement. The Stewards have authority to suspend and/or fine violators of the Rules. OHRC Rules of Racing, supra, Rule 408. Notice of hearing as to any alleged violation, an opportunity to be present, to testify, to present and cross-examine witnesses, and to be represented by legal counsel is accorded to all licensees. Rule 811. A decision of the Stewards may be appealed to the Commission en banc. Rules 820, 821. Decisions of the Stewards or Horse Racing Commission revoking or suspending an occupational license are reviewable under the provisions of the Oklahoma Administrative Procedures Act, 75 O.S.1981 § 301 et seq. 3A O.S.Supp.1983 § 204.3.

Thus, resolution of Appellant's first proposition of error requires that we determine whether, under the Administrative Procedures Act, the District Court of Sequoyah County could properly consider issues and evidence which were not presented to the Commission or the Stewards previously. In that regard, the scope of review under the Oklahoma Administrative Procedures Act is confined to matters of record, except where there has been some procedural irregularity in the conduct of the agency hearing:

The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken by the court. 75 O.S.1981 § 321.

The reviewing court may remand the cause for the taking of additional testimony "if [additional testimony] is deemed essential to a proper disposition of the issue." 75 O.S.1981 § 322(1). The reviewing court is bound to affirm the agency decision and order "if it is found to be valid and the proceedings are free from prejudicial error." 75 O.S.1981 § 322(3). The agency's inferences, conclusions, findings or decisions may be modified or reversed only if one of the requisites of § 322(1)(a)-(g) are met. 75 O.S.1981 § 322(1).

On appeal from the district court review of an agency decision, we must apply the same standards of review for error to the administrative record as does the district court. 75 O.S.1981 § 322(1) ("In any proceeding for review of an agency order, the Supreme Court or the district court, as the case may be ..."); 75 O.S.1981 § 323; Model State Administrative Procedure Act, § 16, 14 Uniform Laws Annotated 501-506 (1971), 282-291 (1987 Supp.). While we have found no Oklahoma cases which have spoken directly to the issue of the appellate standard for appeals from a district court review of an administrative decision, the courts of other jurisdictions which have adopted the Administrative Procedures Act are in agreement that appellate review is made under the same standards as that of the district court, without regard to the lower reviewing court's decision:

"An appellate court accepting an appeal from an agency decision applies the proper standard of review directly to the record of the administrative proceedings and not to the findings and conclusions of the superior court." Devine v. Employment Security Department, 26 Wash.App. 778, 614 P.2d 231 (1980).

See also, Shackford & Gooch, Inc. v. Town of Kennebunk, 486 A.2d 102 (Me.1984); Board of...