Plaintiff Baxter is the owner and trainer of harness race horses. Two purses were forfeited by the defendant racing commission for the presence of a dewormer in the horses after they finished first in two races. Total purses of $11,000 were ordered to be forfeited.
At the time the substance was discovered in the horses, the applicable regulations characterized it as not being either a performance enhancer or a drug that would make more difficult the detection of a performance enhancing drug.
Accordingly, the court in this opinion sets aside the purse forfeitures.
This 19th day of January, 2001, upon consideration of the parties' briefs and the record below, it appears that:
(1) John Baxter ("Baxter") appeals from the decision of the Delaware Harness Racing Commission ("DHRC") finding that Baxter violated DHRC rules when his horses, Big Apple Mac and Mr. Dance Time, tested positive for the dewormer Tetramisole in post-race tests. For this offense, the Commission imposed upon Baxter the loss of purse winnings totaling $11,000.
(2) Baxter is the owner and trainer of Big Apple Mac which finished first at the sixth race at Dover Downs on December 29, 1999 winning $5,500. Baxter is also the owner and trainer of Mr. Dance Time, which finished first at the eleventh race at Dover Downs on January 3, 2000 winning $5,500. The State Steward held a joint hearing for Big Apple Mac and Mr. Dance Time on February 6, 2000. The Steward determined that pursuant to a battery of blood and urine tests taken postrace, both horses had Tetramisole present in their system at the time of their respective races. The Steward further found that Tetramisole was a "prohibited" substance pursuant to DHRC rules and imposed loss of purse winnings. Baxter appealed this decision to the DHRC, which affirmed the Steward's decision upon a de novo hearing. The plaintiff now appeals from June 28, 2000 decision of the DHRC imposing upon plaintiff the loss of purse winnings from the two races at Dover Downs.
(3) The parties agree that Tetramisole is not a performance enhancing drug. However, the parties dispute whether Tetramisole is a "prohibited substance" within the DHRC rules. Plaintiff submits that the Uniform Classification Guidelines for Foreign Substances adopted by the DHRC ("Guidelines") indicates that Tetramisole, which is an anthelmintic, has absolutely "no effect on the performance of the horse or drug detectability." In response, the defendant argues that DHRC was justified in relying on the state chemist's testimony that Tetramisole interferes with drug detectability, and in fact, high enough levels of Tetramisole were present in both horses to "prevent the proper testing of post-race samples for foreign substances."
(4) The function of this Court is to determine whether the agency's decision is supported by substantial evidence and free from legal error. Generally, this Court does not weigh the evidence, determine questions of credibility, or make its own factual findings . It merely determines if the evidence is legally adequate to support the agency's factual findings. Even so, "where, as here, the issue is one of construction of statutory law and the application of the law to undisputed facts, the court's review is plenary." A review of the DHRC's decision in this regard is made pursuant to 3 Del. C. § 10026.
(5) Under DHRC Rule 22.214.171.124.4, "[p]rohibited substances include ... substances foreign to a horse at levels that cause interference with testing procedures." DHRC Rule 8.5.1 further states that a positive test for a prohibited substance is prima facie evidence of a rule violation, for which the trainer shall be responsible absent substantial evidence to the contrary. It is undisputed that both horses tested positive for Tetramisole. The issue before this Court is whether Tetramisole is a "prohibited substance."
(6) The Guidelines, adopted by the DHRC, lists various drugs relevant to the horse racing community, and discusses the classification criteria of such drugs (Category I-V) according to their effect on a horse's physiology. The Guidelines establishes that "substances that are considered to have no effect on the physiology of a racing animal except to improve nutrition or treat or prevent infections or parasite infestations are not classified." The Guidelines further specifically identifies Tetramisole (an anthelmintic drug) as an example of such an unclassified drug. Further, the Guidelines denotes that such drugs as anthelmintics, "have no effect on the performance of the horse or drug detectability." Based on the language of the Guidelines, Baxter was not placed on notice that Tetramisole was a prohibited substance within the meaning of the DHRC rules. In fact, Baxter and all other licensees were on notice from the DHRC's adoption of the Guidelines that Tetramisole was not a prohibited substance, and that it did not effect the "performance of the horse or drug detectability." The post-race statements of the state chemist in this case are directly contradicted by the published Guidelines accepted by the Commission and relied upon by its licensees in adopting their conduct prior to the races.
If an agency rule is designed to afford "due process of law by providing safeguards against essentially unfair procedures, the action which results from the violation of that rule is invalid." Because the Guidelines in effect at the time of the race establish anthelmintic drugs (including Tetramisole) as drugs which do not interfere with performance of a horse or drug detectability, the DHRC erred when it sanctioned Baxter in this case.
Accordingly, the Commission's decision is REVERSED.
IT IS SO ORDERED.
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