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Plaintiff Belcher is a licensed horse trainer. One of his horses tested positive for lasix, a drug that inhibits pulmonary bleeding during racing. It is not illegal to race a horse with lasix, but the use of lasix must be reported to the track and reflected in the program. This use of lasix was not reported.
The Racing Commission fined Belcher and suspended him for 30 days. On appeal from a trial court decision upholding that order, the Court of Appeals says that Belcher is liable for the presence of lasix in his horse under the trainer absolute insurer rule. Under that rule, it doesn’t matter if the drug was administered by a veterinarian by mistake and without Belcher’s knowledge—he is still responsible because he is the horse’s trainer. Therefore, the court upholds the Commission’s order.
Text of Opinion
Appellant, Robert E.
Belcher, appeals from a judgment of the Franklin County Court of Common Pleas
affirming an order of appellee, the Ohio State Racing Commission, sanctioning
appellant after one of his horses tested positive for a prohibited substance.
For the following reasons, we affirm that judgment.
Appellant is a licensed horse trainer in the state of Ohio. On May 21, 2001, one of his horses, Sand Stylish Trick, finished second in a race at Northfield Park. After the race, the horse's urine was tested for prohibited substances. The test came back positive for the presence of furosemide, commonly known as lasix. Lasix is a diuretic used in racehorses to combat exercise‑induced pulmonary hemorrhage. Although horses are allowed to race with lasix, they must be programmed to race with lasix in compliance with Ohio Adm.Code 3769‑18‑01(B). Appellant's horse was not programmed to race with lasix on May 21, 2001. Therefore, the judges at Northfield Park fined appellant $1,000, ordered the forfeiture of the $750 purse, and suspended appellant's license for 30 days.
Appellant appealed that ruling to the Ohio State Racing Commission
("Commission"). After a hearing, the Commission's hearing officer issued a
report and recommendation. The hearing officer recommended the adoption of the
track judges' determination that appellant's horse competed with a prohibited
substance in violation of Ohio Adm.Code 3769‑18‑01, as well as Ohio Adm.Code
3769‑18‑02. The hearing officer further recommended the adoption of the imposed
sanctions. The Commission adopted the hearing officer's recommendations and
fined appellant $1,000, suspended his license for 30 days, and assessed costs in
the amount of $250. On further appeal to the Franklin County Court of Common
Pleas, the lower court affirmed the Commission's order, finding the decision to
be supported by reliable, probative and substantial evidence.
Appellant appeals, assigning the following errors:
"1. The trial court erred by failing to reverse the "Finding and Order" of
Appellee Ohio State Racing Commission ("Commission") issued January 22, 2002
("Order") because the Commission lacked reliable, substantial, and probative
evidence to support its findings in that, among other reasons, (1) the
Commission lacked evidence that Belcher was in any way culpable for a
veterinarian's improper administration of Lasix to the horse Sand Stylish Trick,
and (2) the Commission based its decision to sanction Belcher on an assumption
or "suggestion" of negligence, as opposed to evidence of actual negligence, on
Belcher's part.
"2. The trial court erred by failing to reverse the Commission's Order because
the Commission improperly failed to consider Belcher's undisputed mitigating
evidence.
"3. The trial court erred by failing to reverse the Commission's Order because
the Order is unjust, is contrary to law, and is against the manifest weight of
the evidence presented at the adjudication hearing held on or about December 16,
2001 ("Hearing") and contained in the official record of the above‑captioned
matter ("Record").
"4. The trial court erred by refusing to reverse the Commission's Order because,
in light of the facts of this matter and the evidence presented at the Hearing
and contained in the Record, the Commission's sanction against Belcher is
arbitrary and capricious in that the Commission sanctioned Belcher despite,
among other reasons, (1) evidence that Belcher employed safeguard measures above
and beyond what was required to comply with the Commission's rules, and (2) the
Commission based its decision to sanction Belcher solely on an assumption or
"suggestion" of negligence, as opposed to evidence of actual negligence, on
Belcher's part.
"5. The trial court erred by refusing to reverse the Commission's Order because
the Order constitutes an abuse of the Commission's discretion to impose
penalties against licensees because, in light of the facts of this matter and
the evidence presented at the Hearing and contained in the Record, the penalty
imposed against Belcher is unreasonable and excessive."
In an administrative appeal pursuant to R.C. 119.12, the trial court reviews an order to determine whether it is supported by reliable, probative and substantial evidence and is in accordance with the law. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87. Reliable, probative and substantial evidence has been defined as follows:
" * * * (1) 'Reliable' evidence is dependable; that is, it can be confidently
trusted. In order to be reliable, there must be a reasonable probability that
the evidence is true. (2) 'Probative' evidence is evidence that tends to prove
the issue in question; it must be relevant in determining the issue. (3)
'Substantial' evidence is evidence with some weight; it must have importance
and value." Our Place, Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio
St.3d 570, 571.
On appeal to this court, the standard of review is more limited. Unlike the
court of common pleas, a court of appeals does not determine the weight of the
evidence. Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of
Edn. (1992), 63 Ohio St.3d 705, 707. In reviewing the court of common
pleas' determination that the Commission's order was supported by reliable,
probative and substantial evidence, this court's role is limited to determining
whether the court of common pleas abused its discretion. Roy v. Ohio State
Med. Bd. (1992), 80 Ohio App.3d 675, 680. The term "abuse of discretion"
connotes more than an error of law or judgment; it implies that the court's
attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore
(1983), 5 Ohio St.3d 217, 219. However, on the question of whether the
Commission's order was in accordance with the law, this court's review is
plenary. Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp.
Relations Bd. (1992), 63 Ohio St.3d 339, 343.
Appellant's first and third assignments of error will be addressed together, as
they both contest the sufficiency of the evidence supporting the Commission's
order. Appellant contends that there was no evidence demonstrating that he was
culpable in any way for the presence of lasix in his horse. Rather, appellant
argues the uncontested evidence shows that his veterinarian negligently injected
the horse with lasix, notwithstanding the significant safeguards appellant had
in place to prevent mistaken drug injections.
The degree of appellant's culpability in allowing his horse to run with lasix might be relevant if the Commission had only found him in violation of Ohio Adm.Code 3769‑18‑01(B)(1). Under that rule, a prima facie case of negligence is established once a drug test comes back positive for the presence of a prohibited substance. That prima facie evidence of negligence may be rebutted with evidence that appellant was not negligent in the care of his horse. Ohio State Racing Comm. v. Kash (1988), 61 Ohio App.3d 256, 267‑ 268. However, the Commission also found appellant in violation of Ohio Adm.Code 3769‑18‑02(A). That rule, commonly known as the absolute insurer rule, provides that:
"(A) The trainer shall be the absolute insurer of, and responsible for, the
condition of the horse entered in a race, regardless of the acts of third
parties. Should the chemical or other analysis of urine or blood specimens
prove positive, showing the presence of any foreign substance not permitted by
rule 3769‑18‑01 of the Administrative Code, the trainer of the horse, the
foreman in charge of the horse, the groom, and any other person shown to have
had the care or attendance of the horse may, in the discretion of the
commission, be subjected to penalties provided in paragraph (B) of this rule. *
* * "
The absolute insurer rule imposes strict liability on the trainer for the
presence of drugs in a horse. O'Daniel v. Racing Comm. (1974), 37 Ohio
St.2d 87, 90; Wagers v. Ohio State Racing Comm. (Jan. 22, 1992),
Richland App. No. CA‑2885; Sahely v. Ohio State Racing Comm. (Apr. 6,
1993), Franklin App. No. 92AP‑1430. The negligence of a third‑party or
appellant's level of care does not affect appellant's liability for a violation
of the absolute insurer rule. See Dewbre v. Ohio State Racing Comm.
(1984), 16 Ohio App.3d 370, 373 (affirming violation where presence of drug was
directly attributed to persons other than the trainer). Therefore, evidence of
the veterinarian's negligence, or the absence of evidence demonstrating
appellant's negligence, is irrelevant to establish a violation of Ohio Adm.Code
3769‑18‑ 02(A). The only evidence necessary to support a violation of this rule
is a positive test for a prohibited substance. Appellant does not contest the
validity of the test that indicated the presence of lasix. Therefore, the lower
court did not abuse its discretion in finding that the commission's order was
supported by reliable, probative and substantial evidence. Appellant's first
and third assignments of error are overruled.
In his fourth and fifth assignments of error, appellant contends that the
sanctions imposed by the Commission were improper.
Pursuant to Ohio Adm.Code 3769‑18‑02(B), a licensee may be fined an amount not in excess of $1,000 and/or may be suspended for a period of time not longer than one year upon a violation of Ohio Adm.Code 3769‑18‑02(A). Once the Commission determines there is a violation, the Commission has the discretion to impose these sanctions, and its decision cannot be disturbed on appeal if it is supported by reliable, probative and substantial evidence. Cf. FOE Aerie 2177 Greenville v. Ohio State Liquor Control Comm., Franklin App. No. 01AP‑1330, 2002‑Ohio‑4441, at ¶ 28.
Moreover, this court may not modify an authorized sanction if the decision is
supported by reliable, probative and substantial evidence. Henry's Cafe, Inc.
v. Bd. of Liquor Control (1959), 170 Ohio St. 233; cf. Lindner v. Ohio
Liquor Control Comm. (2001), Franklin App. No. 00AP‑1430 (noting that as a
"practical matter, courts have no power to review penalties meted out by the
commission"); McCartney Food Market, Inc. v. Liquor Control Comm. (June
22, 1995), Franklin App. No. 94APE10‑1576 ("when considering appeals from
decisions of the liquor control commission, * * * a court does not have the
authority to modify the penalty or sanction imposed against a licensee if there
is substantial, probative, and reliable evidence of violation of the applicable
statutes").
A violation of Ohio Adm.Code 3769‑18‑02(A) was proven by reliable, probative and
substantial evidence. The sanctions imposed by the Commission were within the
authorized sanctions found in Ohio Adm.Code 3769‑18‑02(B). Therefore, the lower
court did not abuse its discretion in affirming the sanctions imposed on
appellant by the Commission. Appellant's fourth and fifth assignments of error
are overruled.
Finally, appellant contends in his second assignment of error that the
Commission failed to consider appellant's mitigating evidence. However, there
is no evidence that the Commission failed to consider appellant's mitigation
evidence. Appellant could have been suspended for a period of one year. The
fact that the Commission imposed a 30‑day license suspension suggests that
appellant's mitigation evidence was considered. Merely because the Commission
imposed sanctions on appellant does not lead to the conclusion that the
Commission failed to consider appellant's mitigation evidence. Appellant's
second assignment of error is overruled.
Having overruled appellant's five assignments of error, the judgment of the
Franklin County Court of Common Pleas is affirmed.