J. Vazquez v. PA State Horse Racing Comm. ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Juan Vazquez, :
Petitioner :
:
v. : No. 1169 C.D. 2022
: Submitted: May 12, 2023
Pennsylvania State Horse :
Racing Commission, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: June 29, 2023
Juan Vazquez (Petitioner) petitions for review of the September 27, 2022
Adjudication and Order (Adjudication) of the Pennsylvania State Horse Racing
Commission (Commission) that affirmed the decision of the Board of Stewards
(Stewards) at Parx Racetrack (Parx) suspending Petitioner’s Commission-issued
owner and trainer licenses for the remainder of their terms. The suspension arose
out of the Stewards’ conclusions that Petitioner shipped a horse he was training,
Shining Colors, from Belmont Park (Belmont) in New York to Parx in Bensalem,
Pennsylvania, on January 6, 2022, while the horse “was suffering from [a] severe
chronic condition and should never have been shipped” and had been “grossly
negligent, cruel and abusive” in violation of Sections 185.2, 185.7(b), 303.15(5), and
401.62 of the Commission’s Regulations (Regulations), 7 Pa. Code §§ 185.2,
185.7(b), 303.15(5), and 401.62. (Adjudication at 2 & n.1 (quoting the Stewards’
Decision, Reproduced Record (R.R.) at 279a).) Based on the evidence presented at
a hearing before the full Commission, the Commission agreed with the Stewards that
Petitioner violated these provisions and upheld the suspension. On appeal, Petitioner
argues the Commission’s findings and conclusions are not supported by substantial
evidence, are legally erroneous, and are inconsistent with a decision made by the
race stewards of New York. Because the testimony credited by the Commission,
including all reasonable inferences derived therefrom, support the Commission’s
findings and determinations, and we discern no error in the Commission’s
Adjudication, we affirm.
I. BACKGROUND
Petitioner holds an owner’s license, issued on January 26, 2022, and running
through January 26, 2025, and a trainer’s license, issued on January 26, 2022, and
running through January 26, 2023. (Adjudication, Findings of Fact (FOF) ¶¶ 1, 4.)
Petitioner has held an owner’s license since 2004 and a trainer’s license since 2008.
(Id. ¶¶ 3, 6.) Petitioner has been a horse trainer for about 25 years and was the trainer
for Shining Colors since July 2021. (Id. ¶¶ 9-10.) On January 6, 2022, Petitioner
decided to ship Shining Colors, along with a second horse, from Belmont to Parx;
Petitioner drove the horse trailer himself. (Id. ¶¶ 18-19, 21.) Shining Colors was
housed at the stables at Parx from January 6 until January 9, 2022, during which time
the horse received no veterinary care. (Id. ¶¶ 67-69.) On January 9, 2022, Dr.
Gabrielle Baiman (Dr. Baiman), a veterinarian at Parx, was called to Shining Colors’
stall because the horse “was ‘not doing very well.’” (Id. ¶ 49.) Following an
examination and x-rays, Dr. Baiman euthanized Shining Colors with Petitioner’s
permission due to a severe case of laminitis. (Id. ¶¶ 40, 53-54, 62, 71-75.) As
2
discussed more fully below, a necropsy was performed on Shining Colors on January
10, 2022, by Dr. Julie Engiles (Dr. Engiles). Dr. Engiles’ necropsy report was sent,
with all of the identifying information redacted, to Dr. E. Scott McAllister (Dr.
McAllister), for his independent review.
A. Proceedings Before the Stewards
The Commission implemented an investigation of Shining Colors’ shipment
to Parx and treatment thereafter to determine whether any conduct had occurred that
was detrimental to the best interests of racing, which culminated in a June 23, 2022
hearing before the Stewards. (R.R. at 279a.) At the hearing, the Commission’s
Director of Racing Enforcement, Jason Klouser (Director Klouser), described his
investigation and read into the record relevant portions of Dr. Baiman’s and Dr.
McAllister’s reports, which Dr. Baiman and Dr. McAllister confirmed at the hearing.
(Id. at 307a-14a.) Dr. Baiman’s report reflected her treatment of Shining Colors on
January 9, 2022, including that when she arrived at the horse’s stall, Shining Colors
was in severe discomfort, could not stand on its own, was extremely cellulitic in its
right forelimb, and suffered from severe laminitis in the left front foot to the point
that its coffin bone was only one or two millimeters from bursting through the foot.
(Id. at 308a-10a.) Per their reports and testimony, Dr. Baiman and Dr. McAllister
opined: Shining Colors’ conditions were severe, chronic, had not occurred
overnight, and had been present for a long time or weeks; Shining Colors had been
in severe pain and would have been in that pain during shipment; and Shining Colors
should not have been shipped and doing so would be inhumane and/or negligent.
(Id. at 310a-13a, 325a-26a.) Dr. McAllister called Shining Colors’ condition
“catastrophic” and justified euthanasia, and noted the severity of Shining Colors’
3
condition would have been known prior to its shipment from Belmont to Parx. (Id.
at 312a-13a.)
Petitioner, appearing pro se before the Stewards, did not question any of the
witnesses but stated Shining Colors was “scratched” from a race on December 11,
2021, had an issue with swelling in its right leg beginning around that time believed
to be the result of a rat bite, and received treatment of its leg from Dr. Luis Perez in
New York, which caused the swelling to go down. (Id. at 316a-19a.) Petitioner
testified Shining Colors was walking fine, Dr. Perez last treated Shining Colors on
January 5, 2022, and Petitioner requested and received a certificate of veterinary
inspection (CVI) from Dr. Perez to ship Shining Colors, which he gave to someone
at Parx. (Id. at 319a-24a, 328a-29a.)
On July 7, 2022, the Stewards issued its decision, finding that the veterinary
evidence presented revealed that “‘Shining Colors’ was suffering from [a] severe
chronic condition and should never have been shipped to Parx . . . by [Petitioner].”
(Id. at 279a.) The Stewards determined, based on the evidence, that Petitioner “was
grossly negligent, cruel and abusive in the shipping of . . . ‘Shining Colors’ from
Belmont [] to Parx [] in violation of” Sections 185.2, 185.7(b), 303.15(5), and 401.62
of the Regulations.1 (Id.) Based on these determinations, the Stewards fined
1
Section 185.2 “Conduct of licensee” provides:
A licensee shall not, alone or in concert with another person, engage in
inappropriate, illegal or unethical conduct which violates the Commission’s rules
and regulations of racing, is inconsistent with the best interests and integrity of
racing or otherwise undermines the general public’s faith, public perception and
confidence in the racing industry.
7 Pa. Code § 185.2. Section 185.7(b) ”Protection of horses” provides:
(Footnote continued on next page…)
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Petitioner $5,000.00 and suspended all of Petitioner’s current licenses for their
remaining terms. (Id.) Petitioner appealed the Stewards’ Decision to the
Commission.2
B. Proceedings Before the Commission
The Commission, sitting en banc, held a de novo hearing on Petitioner’s
appeal. At that hearing, Director Klouser, and Drs. Baiman, Engiles, and McAllister,
(b) No licensee or other person under the jurisdiction of the Commission shall
subject or permit any animal under the licensee’s care, custody, control or
supervision to be subjected to or to incur any form of cruelty, mistreatment, neglect,
abuse or abandonment. No licensee shall injure, maim, kill, administer a noxious
substance to or otherwise deprive any animal of necessary veterinary care,
sustenance or shelter.
7 Pa. Code § 185.7(b). Section 303.15(5) “Other duties and responsibilities of trainers” provides:
In addition to the duties and responsibilities set forth in [Sections] 303.13 and
303.14 (relating to trainer responsibility rule; and responsibilities of trainers), a
trainer shall also be responsible for:
....
(5) Ensuring the adequate care, custody, condition, fitness, health, safety
and security of horses under his/her care, custody, and control[.]
7 Pa. Code § 303.15(5). Section 401.62 “Mistreatment of horses” provides:
A licensee or other person under the jurisdiction of the Commission may not alone
or in concert with another person permit an animal under his control to be subjected
to a form of cruelty, mistreatment, neglect or abuse or abandon, or to injure, maim
or kill or administer a noxious or harmful substance to or deprive an animal of
necessary care, sustenance, shelter or veterinary care.
7 Pa. Code § 401.62.
2
Petitioner requested a stay of the Stewards’ Decision from the Commission, which was
denied. Following the Stewards’ Decision and the Commission’s denial of Petitioner’s requested
stay, and prior to the Commission holding a hearing on and deciding Petitioner’s appeal, Petitioner
sought relief, including a preliminary injunction, from this Court in its original jurisdiction, which
was denied after a hearing. Vazquez v. State Horse Racing Comm’n (Pa. Cmwlth., No. 363 M.D.
2022, filed Aug. 15, 2022).
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all of whom were accepted as experts in veterinary medicine, testified in support of
the Stewards’ Decision. Petitioner presented his own testimony, as well as that of
Angel Herrera and Ana Nieves, both of whom worked for Petitioner at Parx and
were with Shining Colors between January 6 and 9, 2022, and Dr. Joseph Bertone,
who was accepted as an expert in veterinary medicine.
Relevantly, Dr. Baiman testified, consistent with her report and in addition to
the above facts, as follows. Shining Colors was in extreme discomfort and pain on
January 9, 2022, from the severe cellulitis on its right front leg and severe laminitis
in its left front hoof, conditions that did not become so severe overnight and would
have existed on January 6, 7, and 8, 2022, and possibly for at least three weeks prior
to that time. (FOF ¶¶ 51, 55, 58, 60, 65, 81-85.) Shining Colors would have been
in pain on January 6, 7, or 8, 2022, and did not receive any veterinary care at Parx
on those days, even though, in Dr. Baiman’s opinion, the horse would have needed
such care. (Id. ¶¶ 66-68, 70, 80, 86.) After x-rays revealed the severity of Shining
Colors’ left hoof laminitis, which included the sinking and rotation of the coffin
bone, Dr. Baiman called Petitioner to explain the situation and the need for Shining
Colors to be euthanized. (Id. ¶¶ 71-72.) Petitioner reviewed the x-ray and called
Dr. Baiman back after five minutes and agreed to euthanize Shining Colors. (Id.
¶¶ 73-74.) Dr. Baiman learned from Petitioner that Shining Colors’ cellulitis was
preexisting and was being treated at Belmont. (Id. ¶¶ 76-77.) Dr. Baiman recalled
that Petitioner indicated his normal veterinarian was going on vacation and shipped
Shining Colors to Parx to keep a “closer eye” on the horse. (Id. ¶ 78.) Dr. Baiman
opined Shining Colors should have been examined prior to shipping and was not in
a condition on January 6, 2022, to have been shipped due to it being in pain, and it
was cruel, inhumane, and grossly negligent to do so. (Id. ¶¶ 76-77, 80, 88-91.) Dr.
6
Baiman believed the responsibility for shipping Shining Colors fell on its trainer,
Petitioner. (Id. ¶ 92.)
Dr. Engiles testified about Shining Colors’ necropsy and her conclusions, as
follows. The necropsy showed that Shining Colors’ right forelimb had severe
chronic conditions that had existed for a significant period, at least 10 days but more
likely several weeks. (Id. ¶¶ 101-03.) Shining Colors’ left forelimb had severe
chronic laminitis resulting in kinking of its hoof and bone deformity, which would
have been palpable and were not consistent with having occurred within the 24 hours
before the horse was euthanized. (Id. ¶¶ 104-09, 113.) Shining Colors’ necropsy
stood out from the thousands Dr. Engiles had performed due to the severity and
chronicity of the laminitis in the left forelimb and the inflammation in the right
forelimb, which was active. (Id. ¶¶ 110-11.) In Dr. Engiles’ professional opinion,
based on the tissue samples, Shining Colors’ cellulitis had been present for at least
two weeks, probably three weeks, and maybe longer. (Id. ¶ 114.) Dr. Engiles
believed it would be very unusual for the cellulitis infection to have existed without
someone being aware of it or for a caretaker to be unaware of the rupture of Shining
Colors’ flexor tendon in its right forelimb, which would alter the way it walked. (Id.
¶¶ 116-18, 125.) Similarly, the condition of Shining Colors’ left forelimb would
have been visible on January 6, 2022, and noticeable upon palpation of the hoof,
which should have occurred at least once a day. (Id. ¶¶ 123-24, 127-28.) “Anyone
with a basic 4H training” looking at Shining Colors or performing routine hoof care
during this period would have known it was injured because it would have been
unable to walk properly due to pain on January 6 through January 9, 2022. (Id.
¶¶ 30, 119-21, 129, 131-32.) A horse in Shining Colors’ condition should not have
been shipped on January 6, 2022, and needed veterinary care on that day, as well as
7
on January 7, 8, and 9, 2022, which it did not receive. (Id. ¶¶ 130, 134-35.) Dr.
Engiles opined that although Shining Colors needed the care of a veterinarian, it was
not the veterinarian who was solely responsible for Shining Colors’ wellbeing
because others are involved in the care of a horse. (Id. ¶ 137.)
Dr. McAllister testified, consistent with his report, as follows. Based on his
review of the redacted necropsy report and an investigative report, Shining Colors’
cellulitis and laminitis were chronic and catastrophic, would have caused pain levels
of 9 out of 10, and both would have been visible to any observer, respectively, three
days and several days before its death. (Id. ¶¶ 150, 152-54, 157-58.) Shining Colors’
laminitis should have been caught earlier than January 9, 2022, with routine hoof
care, which requires a horse’s hooves to be cleaned at least once a day. (Id. ¶¶ 159-
61.) The problems likely existed for several weeks, if not months, prior to the
horse’s shipment from Belmont to Parx; Shining Colors would not have been able
to walk properly on January 6, 2022, without medication and foot care; a
professional groom or trainer would have realized there was a problem with Shining
Colors and shipping the horse in its condition; and it was inappropriate and
inhumane to ship Shining Colors on January 6, 2022. (Id. ¶¶ 14-16, 148, 165-69,
172-74.) It was likely that drugs had been administered to Shining Colors to sedate
it for the trip. (Id. ¶ 17.)
Director Klouser testified as follows. A trainer of record for a horse is
responsible for the care, custody, and control of the horse, as well as for those that
work on the trainer’s behalf with the horse. (Id. ¶¶ 178, 180.) As Shining Colors’
trainer for the period in question, Petitioner was responsible for the horse’s medical
care. (Id. ¶ 179.) Although a person shipping a horse into a racetrack must report
all horses in a trailer or turn over health certificates and medical cards, Director
8
Klouser’s investigation did not reveal any such reporting or health certificates,
including a CVI, in Parx records for Shining Colors, although a second horse that
was in Petitioner’s trailer with Shining Colors was registered. (Id. ¶¶ 181-84.)
Director Klouser indicated it was not in racing’s best interests for Petitioner to have
engaged in the conduct alleged and such “conduct shines a bad light on the horse
racing industry and undermines public confidence in the racing industry” because
“[i]t is imperative that all trainers and licensees of the . . . Commission are providing
proper care to horses.” (Id. ¶¶ 185-86.)
Petitioner reiterated his testimony from the Stewards’ hearing that Shining
Colors was scratched from a race at Belmont on December 11, 2021, received
treatment for a health issue from Dr. Perez at that time, Dr. Perez signed a CVI, upon
which he relied, and Shining Colors was walking normally before being shipped
from Belmont on January 6, 2022. (Id. ¶¶ 12-13; R.R. at 212a-13a, 222a-23a.)
According to Petitioner, the decision to ship Shining Colors on January 6, 2022, was
his, and it was so that he could keep an eye on the horse, he performed the shipment
himself, and he did not stop anywhere. (FOF ¶¶ 18, 20, 23.) Petitioner asserted he
handed over Shining Colors’ medical paperwork, including the CVI, when he
arrived at Parx, and Parx must have lost it. (R.R. at 214a-15a, 220a, 224a-25a.)
Petitioner acknowledged he understood the standard of care for horse healthcare and
that a horse’s hooves should be examined every day. (FOF ¶¶ 26-27.) Petitioner is
familiar with laminitis and cellulitis and that these conditions would cause a horse
great pain. (Id. ¶¶ 188-91.) Petitioner did not obtain veterinary care for Shining
Colors on January 6, 7, or 8, 2022. (Id. ¶¶ 192-94.)
Petitioner agreed that he believed this is a “big set up” because the New York
stewards reviewed this matter and nothing came from it; however, those stewards
9
did not hold a hearing involving this fact pattern, and Petitioner did not produce any
adjudication by those stewards. (Id. ¶¶ 210, 218, 223.) Petitioner did not produce
the CVI at the Stewards’ hearing, and he knew that such certificate would have to
be given to Parx officials. (Id. ¶¶ 219-20.) The CVI he offered at the Commission’s
hearing was difficult to read and was indecipherable and admitted only to show the
effect it had on Petitioner’s state of mind, not for its truth. (Id. ¶¶ 225-26.) Although
Petitioner stated his attorneys had Shining Colors’ health records and that Dr. Perez
cleared Shining Colors to travel, neither those records, nor Dr. Perez’s testimony,
were presented at the Commission’s hearing. (Id. ¶¶ 222, 224.)
Petitioner’s employees at the time of Shining Colors’ death, Mr. Herrera and
Ms. Nieves, testified that Shining Colors was walking fine between January 6 and 8,
2022, and that the standard of hoof care required a horse’s hooves be examined every
day. (Id. ¶¶ 214-16; R.R. at 200a-03a, 205a-07a.) Ms. Nieves agreed that she did
not want to see anything bad happen to Petitioner. (FOF ¶ 217.)
Dr. Bertone testified that there could be alternative causes for Shining Colors’
condition and alternative durations of those conditions, testifying that the horse
could have been fine when it left Belmont on January 6, 2022, and developed the
conditions or the conditions had worsened significantly by January 9, 2022. (Id.
¶ 199.) However, Dr. Bertone did not disqualify that the laminitis and cellulitis
could have been present before Shining Colors’ euthanasia and agreed with Dr.
McAllister’s pain assessment that Shining Colors’ pain would have been a 9 out of
10. (Id. ¶¶ 200-01.) Although Dr. Bertone testified that it was possible for a coffin
bone to rotate the way Shining Colors’ did in three days, Dr. Baiman testified in
rebuttal that this scenario could not happen in three days. (Id. ¶ 209.) Dr. Bertone
10
was told by Petitioner’s counsel what was needed for the defense in this matter and
received $3,500.00 for his testimony. (Id. ¶¶ 202-03.)
The Commission found the testimony of Director Klouser and Drs. Baiman,
Engiles, and McAllister “persuasive, credibl[e] and trustworthy – in stark contrast
to [Petitioner’s] testimony.” (Adjudication at 28, 32.) In contrast, the Commission
found Mr. Herrera’s and Ms. Nieves’ testimony to be “at best biased and at least
doubtful” and not adding anything to mitigate Petitioner’s actions, citing their
“financial interest in the outcome due to their being Petitioner’s employees,” the
possibility that Shining Colors had been heavily medicated, and that neither testified
they actually inspected Shining Colors’ hooves, which would have revealed the
coffin bone one millimeter away from poking through its skin. (Id. at 33.) The
Commission expressly rejected Dr. Bertone’s testimony, noting it “was based upon
speculation and facts not in evidence,” “did not directly contradict” the testimony of
Drs. Baiman, Engiles, and McAllister, and was not the result of his examination of
the horse or a blind review of its autopsy. (Id. at 33-34 & Conclusion of Law (COL)
¶ 20.) The Commission rejected Petitioner’s testimony as self-serving, incongruous,
and not credible based on, among other things, its conflict with the testimony of Drs.
Baiman, Engiles, and McAllister, and the fact that Shining Colors’ medical records
were never introduced, notwithstanding that they were allegedly in the possession
of Petitioner’s counsel. (Id. at 34-35.) Similarly, noting that, as fact finder, it was
entitled “to draw ‘inferences from the established facts and circumstances,’” the
Commission concluded Petitioner’s failure to offer Dr. Perez’s testimony at any
proceedings, despite his reliance on that veterinarian’s professional opinion,
“suspicious and most troubling.” (Id. at 29, 35 (quoting Pa. Lab. Rels. Bd. v.
Kaufmann Dep’t Stores, Inc., 29 A.2d 90, 92 (Pa. 1942)).) Finding the CVI proffered
11
“indecipherable and questionable,” the Commission was left to “speculate why
[Petitioner] did not ask Dr. Perez to testify” and drew an adverse inference “that Dr.
Perez’s testimony would not have supported [Petitioner’s] testimony or exonerated
him.” (Id.)
Based on the credited evidence, the Commission specifically concluded:
5. The evidentiary record establishes that [Petitioner], as trainer of
record, was responsible for the care, custody, condition, fitness, health
and safety of Shining Colors. 7 Pa. Code § 303.15(5) . . . .
6. On January 6, 202[2], [Petitioner] transported the horse Shining
Colors from Belmont [] to Par[x] when he knew or should have known
that Shining Colors was suffering from severe, painful health
conditions in each of [its] forelimbs. . . .
7. Shipping Shining Colors into Parx on January 6, 2022, in the
condition [it] was in was inhumane, cruel, grossly negligent,
inappropriate and unethical. . . .
8. [Petitioner] failed to obtain needed veterinary care for Shining
Colors as required on January 6, 2022, and on January 7, 2022, and on
January 8, 2022. . . .
9. [Petitioner’s] actions were not in the best interests of racing, and
undermine the general public’s faith, perception of and confidence in
the racing industry. . . .
....
15. The evidence and testimony of record ha[ve] proven beyond a
preponderance of the evidence that [Petitioner] subjected or permitted
an animal under his care, custody, control or supervision to be subjected
to or incur[] any form of cruelty, mistreatment, neglect, abuse or
abandonment. [Petitioner] caused a horse under his care to be injured,
maimed, killed, or otherwise deprived an animal of necessary
veterinary care. 7 Pa. Code § 185.7[(b)]. . . .
16. The evidence and testimony of record ha[ve] proven beyond a
preponderance of the evidence that [Petitioner] engaged in
12
inappropriate, illegal or unethical conduct which violates the
Commission’s rules and regulations of racing, is inconsistent with the
best interests and integrity of racing or otherwise undermines the
general public’s faith, public perception and confidence in the racing
industry. 7 Pa. Code 185.2. . . .
17. The evidence and testimony of record ha[ve] proven beyond a
preponderance of the evidence that [Petitioner] permitted an animal
under his control to be subjected to a form of cruelty, mistreatment,
neglect, abuse or abandonment, or that he injured, maimed, killed, or
administered a noxious or harmful substance to or deprived an animal
of necessary care, sustenance, shelter or veterinary care. 7 Pa. Code
§ 401.62. . . .
18. The evidence and testimony of record ha[ve] proven beyond a
preponderance of the evidence that [Petitioner] did not adequately
ensure the care, custody, condition, fitness, health, safety and security
of a horse under his control. 7 Pa. Code § 303.15(5). . . .
(Id. ¶¶ 5-9, 15-18.)
Accordingly, the Commission held the evidence supported the Stewards’
findings that Petitioner’s actions violated Sections 185.2, 185.7(b), 303.15(5), and
401.62 of the Regulations. (Id. ¶¶ 10-14.) It observed that “there is no more
important regulatory function than to ensure that all racing participants treat horses
with care, compassion and respect” and, “[u]nfortunately, . . . the matter before [the
Commission was] a sad example of a horse not being properly protected, cared for
and treated with respect,” which “culminat[ed] in the horse’s death.” (Adjudication
at 26.) The Commission held “[t]he overwhelming evidence reflects that on or about
January 6, 2022, [Petitioner] shipped a sick, ailing, and lame horse, named ‘Shining
Colors,’ from New York state to Parx [] in Bensalem, Pennsylvania.” (Id. at 29.)
Shining Colors “had severe laminitis in its left forelimb, severe cellulitis in its right
forelimb and could not walk properly,” its “[l]esions would have been visible,” and
“the horse would have been in excruciating pain.” (Id. at 29-30.) Still, no veterinary
13
care was sought for Shining Colors until January 9, 2022, at which point its condition
required it to be euthanized. (Id. at 30-31.) The Commission found that Petitioner’s
“conduct str[uck] at the very heart of racing,” and noted Petitioner’s disciplinary
history, which included 91 disciplinary rulings. (Id. at 32, FOF ¶¶ 7, 9.) The
Commission concluded Petitioner did not present more than a “mere scintilla” of
evidence to support his position that the penalty was too harsh and “[a] gross
reduction of penalty is not warranted here.” (Id. at 2 n.2, 36, FOF ¶¶ 7, 9 & COL
¶ 19.) Petitioner now petitions this Court for review.
II. DISCUSSION
A. Parties’ Arguments
Petitioner argues the Commission’s determination that he failed to show that
the Stewards’ decision was improper is erroneous because there was no evidence
that Petitioner knowingly acted in this matter. Citing his own testimony, and that of
Mr. Herrera and Ms. Nieves, “the actual people caring for” and “the only three
people to see [Shining Colors] in person before the unfortunate ending,” and the
testimony of Dr. Bertone, an expert on laminitis, Petitioner maintains Shining Colors
was fine until January 9, 2022, even if the horse was in the advanced stages of
laminitis. (Petitioner’s Br. at 8-9.) According to Petitioner, Mr. Herrera’s and Ms.
Nieves’ testimony should not have been discounted merely because they were
former employees, and Dr. Bertone’s testimony was that of the only expert in
laminitis. Petitioner challenges the testimony of Drs. Baiman, Engiles, and
McAllister as being insufficient for a variety of reasons, including that they are not
experts on laminitis, did not review Shining Colors’ veterinary records from New
York, and could not have first-hand knowledge of the horse’s condition on January
6, 2022. (Petitioner’s Br. at 5-7.) Petitioner also challenges Director Klouser’s
14
testimony because Director Klouser did not contact anyone in New York during his
investigation and sought to impose strict liability on Petitioner rather than on Dr.
Perez, whom Petitioner employed to provide veterinary care to Shining Colors. (Id.
at 7.) Petitioner maintains the Commission should have investigated what happened
in New York prior to Shining Colors’ shipment to Parx and, having not done so, the
evidence is not sufficient to uphold the Stewards’ Decision, which was contrary to
the decision reached by the New York stewards.
The Commission argues its findings of fact are supported by substantial
evidence, specifically, the credited testimony of Director Klouser and Drs. Baiman,
Engiles, and McAllister, and those findings support the Commission’s conclusions
that Petitioner’s actions violated the Regulations. The Commission maintains that
Petitioner’s arguments challenge the Commission’s credibility determinations and
assert that all of the evidence had to be interpreted in favor of the party that prevailed
below, which was not Petitioner. The Commission argues that its evidentiary
determinations, such as the resolution of evidentiary conflicts and witness
credibility, are not subject to review, and the evidence must be viewed, along with
all reasonable inferences deducible therefrom, in the light most favorable to the
prevailing party, which was not Petitioner. Boyce v. Pa. State Horse Racing
Comm’n, 651 A.2d 656, 659 (Pa. Cmwlth. 1994). The Commission reiterates the
reasoning for rejecting Petitioner’s evidence, including the illegible CVI purportedly
completed by Dr. Perez prior to Shining Colors’ shipment to Parx, set forth in the
Adjudication. According to the Commission, Petitioner “is not entitled to relief on
his post hoc reframing of the facts,” and, therefore, the Adjudication should be
affirmed. (Commissioner’s Br. at 46.)
15
B. Analysis
“Our scope of review is limited to a determination of whether constitutional
rights have been violated, an error of law was committed[,] or necessary findings of
fact are supported by substantial evidence.” Niefart v. State Horse Racing Comm’n,
567 A.2d 789, 791 (Pa. Cmwlth. 1989). Substantial evidence is “such evidence as a
reasonable mind might accept as adequate to support a conclusion.” Pinero v. Pa.
State Horse Racing Comm’n, 804 A.2d 131, 136 (Pa. Cmwlth. 2002) (citation
omitted). “[Q]uestions of evidentiary weight and [the] resolution of evidentiary
conflicts are for the Commission, not the reviewing court.” Boyce, 651 A.2d at 660.
The overriding purpose of the Race Horse Industry Reform Act3 (Act) and
accompanying Regulations is “to foster an image of horse racing that would make
the image of that ‘industry’ an irreproachable one, even in the eyes of the skeptical
public.” Helad Farms v. Pa. State Harness Racing Comm’n, 470 A.2d 181, 184 (Pa.
Cmwlth. 1984). “To that end, the Commission must discourage conduct that
undermines public confidence and respect in the sport.” Kulick v. Pa. State Horse
Racing Comm’n, 540 A.2d 620, 623 (Pa. Cmwlth. 1988) (citing Daly v. Pa. State
Horse Racing Comm’n, 391 A.2d 1134 (Pa. Cmwlth. 1978)). The conduct resulting
in sanction does not need to “be criminal in nature nor proved beyond a reasonable
doubt.” Id. Rather, the preponderance of the evidence standard applies in
administrative hearings, Samuel J. Lansberry, Inc. v. Pennsylvania Public Utility
Commission, 578 A.2d 600, 602 (Pa. Cmwlth. 1990), which is a “more likely than
not standard,” Commonwealth v. McJett, 811 A.2d 104, 110 (Pa. Cmwlth. 2002). “It
is sufficient that the complained-of conduct and its attending circumstances be such
as to reflect negatively on the sport.” Kulick, 540 A.2d at 623.
3
3 Pa.C.S. §§ 9301-9374.
16
Petitioner first argues the Commission’s Adjudication is not supported by
substantial evidence. Upon our review of the record, we disagree. Here, Drs.
Baiman, Engiles, and McAllister all credibly opined, based on their professional
experience, that Shining Colors’ laminitis and cellulitis conditions: were severe;
caused pain and/or lameness; were chronic and had been present at the time of the
horse’s shipment from Belmont on January 6, 2022, if not weeks before; would have
been visible or discernable to anyone familiar with horses and performing a daily
hoof inspection, as is the standard of care, on January 6, 2022; and would have made
shipping Shining Colors on that date inhumane and/or grossly negligent. (R.R. at
63a-64a, 66a, 69a, 72a-74a, 95a-96a, 105a-17a, 119a, 127a-28a, 135a-40a, 142a-
43a, 146a-50a, 161a, 163a.) Although Dr. Bertone offered alternative theories to
explain Shining Colors’ condition and its rapid worsening, which were rejected as
not credible, Dr. Bertone did not discount the opinions of the other expert
veterinarians and agreed with Dr. McAllister’s assessment that Shining Colors’ pain
would have been 9 out of 10. (Id. at 239a, 258a.) Petitioner acknowledged he was
aware cellulitis and laminitis would cause a horse great pain and it was his decision
to ship Shining Colors from Belmont to Parx on January 6, 2022. (Id. at 221a-22a,
225a-26a.) A reasonable mind viewing this evidence, and the inferences reasonably
deducible therefrom, in the light most favorable to the prevailing party, “might
accept [it] as adequate to support” the findings of fact the Commission relied upon
to uphold the Adjudication. Pinero, 804 A.2d at 136.
While Petitioner challenges the Commission’s evidentiary determinations,
asserting his evidence should have been credited, the resolution of evidentiary
conflicts is for the Commission, not this Court. Boyce, 651 A.2d at 660. Further, to
the extent Petitioner maintains the opinions of Drs. Baiman, Engiles, and McAllister
17
were speculative as to what occurred in New York immediately before and on
January 6, 2022, circumstantial evidence may constitute substantial evidence to
support a factual conclusion if “the evidence [is] adequate to establish the conclusion
sought and must so preponderate in favor of the factual conclusion as to outweigh
. . . any other evidence and reasonable inferences therefrom which are inconsistent
therewith.” Monaci v. State Horse Racing Comm’n, 717 A.2d 612, 618 (Pa. Cmwlth.
1998) (citation omitted). On this record, we discern no error in the Commission’s
conclusion that the opinions of Drs. Baiman, Engiles, and McAllister, which were
based on many years, if not decades, of experience, outweighed the other evidence
and reasonable inferences of the other evidence offered, particularly where
Petitioner’s own expert did not discount those opinions.
Those findings of fact, in turn, support the conclusions that it was more likely
than not, McJett, 811 A.2d at 110, that Petitioner violated Sections 185.2, 185.7(b),
303.15(5), and 401.62 of the Regulations by shipping Shining Colors on January 6,
2022. Section 185.7(b) relevantly provides that “[n]o licensee . . . shall subject or
permit any animal under the licensee’s care, custody, control or supervision to be
subjected to or to incur any form of cruelty . . . [or] neglect . . . [or] deprive any
animal of necessary veterinary care.” 7 Pa. Code § 185.7(b). Similarly, Section
401.62 of the Regulations relevantly states “[a] licensee . . . may not . . . permit an
animal under [the licensee’s] control to be subjected to a form of cruelty,
mistreatment, neglect . . . , or . . . deprive an animal of necessary care . . . [or]
veterinary care. 7 Pa. Code § 401.62. The Commission’s findings, which are based
on substantial evidence, support the conclusions that, more likely than not, Petitioner
subjected Shining Colors, a horse within his care, custody, control, and supervision,
to a form of cruelty, neglect, and/or mistreatment, as well as deprived the horse of
18
veterinary care, when he shipped the horse from Belmont to Parx on January 6, 2022,
in violation of these provisions.
Section 303.15(5) provides that it is a trainer’s responsibility to “[e]nsur[e]
the adequate care, . . . condition, health, [and] safety . . . of horses under his/her care,
custody, and control[.]” 7 Pa. Code § 303.15(5). The Commission’s supported
findings also support the conclusion that, more likely than not, Petitioner did not
“[e]nsur[e] the adequate care, condition, health, [and] safety” of Shining Colors
when he shipped the horse from Belmont to Parx on January 6, 2022, in violation of
this provision.
Finally, Section 185.2 of the Regulations provides:
[a] licensee shall not . . . engage in inappropriate . . . [or] unethical
conduct which violates the Commission’s . . . regulations . . . , is
inconsistent with the best interests and integrity of racing or otherwise
undermines the general public’s faith, public perception and confidence
in the racing industry.
7 Pa. Code § 185.2. The Commission’s findings support its conclusions that, more
likely than not, Petitioner engaged in inappropriate or unethical conduct that violated
the Commission’s Regulations, as stated above. Further, those findings support the
Commission’s conclusion that, given the focus of the Regulations on ensuring the
wellbeing of the horses involved in racing, it was more likely than not that
Petitioner’s conduct “jeopardize[d] the sport of horse racing,” “sen[t] a terrible
message to the public, to the licensees, and to caring, diligent people everywhere,”
and “were not in the best interests of racing, and undermine[d] the general public’s
faith, perception of and confidence in the racing industry.” (Adjudication at 36, COL
¶ 9.) Accordingly, we discern no error in the Commission’s conclusions that
Petitioner’s conduct violated multiple sections of its Regulations.
19
Petitioner also argues that the Commission erred by applying a “strict
liability” standard and by not requiring that it be proven that he acted “knowingly.”
(Petitioner’s Br. at 5.) However, neither argument has merit. In Commonwealth v.
Webb, 274 A.2d 261 (Pa. Cmwlth. 1971), the case Petitioner cites in support of his
positions, a trainer argued the Commission was imposing strict liability, rendering
him an insurer of a horse’s condition regardless of the trainer’s actions, when it
upheld the suspension of his license arising from a positive drug result of a horse he
trained. We rejected that argument, distinguishing the Commission’s then-
regulations, which were similar to the current Regulations, from those of other states
that imposed absolute liability on trainers or declared trainers the absolute insurer of
a horse. Id. at 265-67. We noted that, unlike those other states’ laws, Pennsylvania’s
regulations “clearly provide ample opportunity for an embattled trainer to
demonstrate his innocence and likewise clearly provide that a penalty is not
automatically imposed.” Id. Those regulations provide a trainer notice, the right to
counsel, the right to a hearing before the stewards, and, if necessary, before the
Commission, thereby giving licensees the “opportunity to be fully heard and to be
fairly adjudged before a penalty, if any, would be imposed.” Id. Further, Petitioner’s
contention that it had to be proven that he acted “knowingly,” (Petitioner’s Br. at 5),
is not supported by the language of the Regulations or precedent. Luzzi v. State
Horse Racing Comm’n, 548 A.2d 659, 668-69 (Pa. Cmwlth. 1988) (holding the
Commission’s Regulations are not criminal statutes and “court[s] will not require
knowledge where an administrative regulation does not specifically require it”);
Marusco v. Pa. State Harness Racing Comm’n, 448 A.2d 662, 664 (Pa. Cmwlth.
1982) (rejecting a trainer’s argument that his license could not be suspended based
on his failure to guard his horse, which was then found to have drugs in its system,
20
because there was no proof that he knew the horse had been drugged). Thus, these
are not reasons to reverse the Commission’s Adjudication.
Finally, Petitioner argues the penalty imposed is too severe and is not
consistent with the New York stewards’ decision. We discern no error or abuse of
discretion in the penalty imposed. In upholding the suspension of Petitioner’s
licenses for the remainder of their terms, the Commission relied not only on the
evidence related to Shining Colors’ shipment and death, but also Petitioner’s history
of disciplinary actions, which reflected almost 100 violations. A reasonable mind
reviewing that evidence in the light most favorable to the party prevailing before the
Commission might accept it to support the penalties imposed. Although Petitioner
relies on the lack of action by the New York stewards, there is no indication those
stewards had the same evidence before them when they made their decision (or even
held a hearing). Accordingly, this is not a reason to reverse the Commission’s
Adjudication, which is supported by substantial evidence and precedent.
III. CONCLUSION
Because the Commission’s findings of fact are supported by substantial
evidence, and those findings support the conclusion that Petitioner’s actions as they
relate to his shipping Shining Colors from Belmont to Parx violated numerous
Commission Regulations, we affirm.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Juan Vazquez, :
Petitioner :
:
v. : No. 1169 C.D. 2022
:
Pennsylvania State Horse :
Racing Commission, :
Respondent :
ORDER
NOW, June 29, 2023, the Order of the Pennsylvania State Horse Racing
Commission, entered in the above-captioned matter, is hereby AFFIRMED.
__________________________________________
RENÉE COHN JUBELIRER, President Judge