M. Ciresa v. PA State Horse Racing Commission

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Martin Ciresa, :
:
Petitioner :
:
v. : No. 1155 C.D. 2017
: Argued: September 12, 2018
:
Pennsylvania State Horse :
Racing Commission, :
:
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: January 17, 2019
Martin Ciresa (Petitioner) petitions for review of the July 26, 2017
order of the Pennsylvania State Horse Racing Commission (Commission), which
affirmed the PARX Philadelphia Park (PARX) Board of Stewards’ (Board)
December 5, 2016 ruling to disqualify Petitioner’s horse, Cosmic Destiny (CD),
from purse money awarded in a race after the horse tested positive for a foreign
substance. We affirm.
Petitioner has participated in horse racing for approximately 30 years.
Findings of Fact (F.F.), March 28, 2017, No. 2. On October 11, 2016, Petitioner
became the licensed owner of CD. F.F. Nos. 1-2. That same day, CD won first
place in the ninth race at PARX. Id. Following the race, and in front of two
witnesses, urine and blood samples were taken from CD. F.F. No. 3.1
1
Section 163.318 of the Commission’s regulations provides:
(a) The test sample of the winner of each race and of horses
finishing in the money in a race for which there is exotic
wagering shall be taken, and a test sample shall be taken from
other horses as the Commission or stewards may direct. If there
is a problem in securing a test sample, the following
procedures apply:
(1) A veterinarian may inject up to 1/2 cc. of Lasix to
enhance securing a sample upon the written
approval of the trainer.
(2) If a urine sample is not obtained in 2 hours and
either the trainer or the veterinarian elects not to
induce the sample by Lasix, a blood sample shall be
taken upon the written approval of the trainer.
(3) In all cases a urine sample, a urine sample induced
by Lasix or a blood sample shall be secured,
regardless of delay involved.
(b) The urine or blood sample secured under the procedures as
set forth in subsection (a), shall be split into two parts. One
portion shall be delivered to the Commission’s official chemist
for testing. The remaining portion shall be maintained at the
detention barn from where it was secured. Both portions shall
be stored and shipped at the same range of temperatures and
kept and transported in similar fashion.
***
(c) Upon application by the trainer or owner of the horse in
question, the split portion of the sample taken shall be tested by
a laboratory designated by the Commission and approved by
the Horsemen's Benevolent and Protective Association.
(Footnote continued on next page…)
2
The Commission shipped a sample to the Pennsylvania Equine
Toxicology and Research Laboratory (PETRL) for testing. Id. Following standard
procedures, PETRL tested CD’s plasma blood sample and discovered the presence
of Carisoprodol, a skeletal muscle relaxant drug. F.F. Nos. 5, 6, 33. PETRL also
detected Meprobamate, a known metabolite of Carisoprodol. F.F. No. 31. Under
Section 163.302(a)(1) of the Commission’s regulations,2 Carisoprodol may not be
present in a horse on race day. F.F. No. 5. CD’s trainer received notice of the
positive test results and exercised his right to have them confirmed by a second
(continued…)
(d) If the test confirms the findings of the original laboratory, it
is considered to be a prima facie violation of the applicable
provisions of this chapter.
(1) If the test of the split portion does not substantially
confirm the findings of the original laboratory, the
Commission will not consider the sample to
constitute a prima facie violation of this chapter and
no penalty will be imposed.
(2) In order that the split sample be tested, the owners
or trainers of the horse in question shall request in
writing to the Commission that the split sample be
retested. The request shall be received by the
Commission within 48 hours after notification of
the initial positive test or within a reasonable period
of time established by the Commission after
consultation with the original laboratory . . . .
58 Pa. Code §163.318.
2
“A horse participating in a race may not carry in its body a substance foreign to the
natural horse except as otherwise provided.” 58 Pa. Code §163.302(a)(1).
3
laboratory. F.F. Nos. 7-8.3 On November 7, 2016, in Petitioner’s presence, the
split sample was shipped from the state detention barn at PARX and submitted for
drug analysis to Texas A&M Veterinary Medical Diagnostic Laboratory (Texas
A&M Laboratory). F.F. No. 9. Texas A&M Laboratory also found the presence
of Carisoprodol in CD’s serum blood sample, which substantially confirmed the
findings of PETRL. F.F. Nos. 10, 11, 35.
The Commission follows the guidelines of the Association of Racing
Commissioners International (ARCI), which treats Carisoprodol as a class 2 drug
and recommends disqualification and loss of purse money for a first offense,
absent mitigating circumstances. F.F. Nos. 14-15. On December 5, 2016, the
Board issued a ruling disqualifying CD from the ninth race and ordered
redistribution of the purse money. F.F. No. 12. Petitioner appealed.
A hearing was held before a Commission hearing officer on March
28, 2017. Petitioner’s expert, Dr. Thomas Tobin, Professor of Veterinary Science
and Cancer Biology at the University of Kentucky, submitted a written report.
Exhibit A-1, Attachment 5. In the report, Dr. Tobin relied on articles and data to
support his assertions that: CD was exposed to Carisoprodol within the hour before
the race; the amount of the drug found in the horse was miniscule; and, because the
drug did not enhance CD’s performance, the horse should not have been
disqualified. Dr. Tobin opined that the source of Carisoprodol found in CD was a
“random, inadvertent transfer of a trace amount from a human[-]related source.”
Exhibit A-1, Attachment 5.
3
CD’s trainer did not appeal a $2,500 fine that was imposed. F.F. No. 13. Pursuant to
Section 163.309 of the Commission’s regulations, owners and trainers have a responsibility to
protect the horse against attempted administration of a prohibited substance.
4
Jason Klouser, Director of Enforcement for the Commission, testified
at length about the general procedures for testing, handling, and preserving
samples following races, and how these procedures were specifically applied in the
instant case. Notes of Testimony (N.T.), March 28, 2017, at 15-62. Klouser stated
that in every race, the first place horse is automatically tested for foreign
substances. N.T. at 15. Klouser acknowledged that Section 163.318 of the
Commission’s regulations, 58 Pa. Code §163.318, called for all horses “finishing
in the money” to be tested and required testing of four horses from the ninth race
on October 11, 2016. N.T. at 60. However, he stated that the Commission’s
common practice is to test only the winning horse, and at most one other, if special
circumstances arise. N.T. at 59, 60.
Klouser stated that Carisoprodol is a forbidden substance on race day.
N.T. at 37. He also rejected Petitioner’s interpretation of Section 163.313 as
identifying urine as the “primary” testing sample, stating that “obviously we
cannot make a horse urinate on cue” and “[w]e do draw blood at all times by
procedure.” N.T. at 56-57.
The Commission’s expert, Dr. Mary Robinson, Veterinarian
Pharmacologist and Acting Laboratory Director of PETRL, provided testimony
regarding the receipt, handling, and testing of submitted samples. N.T. at 67-70.
Dr. Robinson stated that Carisoprodol “acts in the brain to decrease muscle
contractions” and helps with soreness and pain. N.T. at 99. Dr. Robinson agreed
with Dr. Tobin that both the level of Carisoprodol, and its metabolized form,
Meprobamate, were found in very low concentrations in CD and likely would not
have affected the horse’s performance. N.T. at 80-81, 94-95. However, Dr.
5
Robinson testified that it was impossible to know exactly how much of the drug
was given to CD or when the substance was administered to the horse. N.T. at 98.
Dr. Robinson rejected Dr. Tobin’s theory that the horse was exposed
to the drug through inadvertent human transference. N.T. at 81. She stated that the
plasma concentration generated by CD’s test samples indicated that CD ingested a
minimum of eight milligrams of Carisoprodol. N.T. at 81. Dr. Robinson opined
that because Carisoprodol is a non-naturally occurring substance, it is “extremely
unlikely that eight milligrams of [C]arisoprodol would be able to be transferred
from a tablet to somebody’s hands and then to the horse.” N.T. at 81-82. Dr.
Robinson noted that Carisoprodol tablets are formed with special binders to ensure
the drug will not release during handling but will only dissolve within the
gastrointestinal tract. N.T. at 82.
Dr. Robinson also testified that PETRL did not test CD’s urine sample
because it had already identified the presence of both Carisoprodol and
Meprobamate in the plasma sample and, thus, had sufficient information to verify
the drug’s presence in the horse’s system during the race. N.T. at 88.
Petitioner emphatically denied giving the prohibited drug to CD. N.T.
at 109, 107. Petitioner testified that he was “stunned” and “heartbroken” to receive
CD’s positive test results of Carisoprodol. N.T. at 109. He stated that after 30
years in the horse racing industry, receiving bad test results was “one thing you
don’t worry about.” Id. Petitioner testified that he implements numerous
precautions to prevent something like this from happening, such as not purchasing
products containing pepper, commingling medical syringes, or sharing equipment
with other horses. N.T. at 107-08.
6
By July 26, 2017 order,4 the Commission found that although both
experts agreed that the small amount of Carisoprodol discovered in CD likely did
not enhance the horse’s performance, the only determining factor for disqualifying
a horse is whether it participated in a race with a foreign substance. The
Commission found that there was substantial evidence to support a finding under
Section 163.303(b) of the Commission’s regulations5 that CD carried a foreign
substance during the race, noting that two laboratories had confirmed the positive
test result of Carisoprodol in the horse during race time. Consequently, the
Commission upheld the Board’s decision to disqualify CD from the purse money
based upon the finding of a foreign substance pursuant to Section 163.303(c).6
4
While unrelated to the Board’s decision, Alan Pincus, Esquire, counsel for Petitioner,
was administratively suspended from the practice of law by our Supreme Court’s July 26, 2017
order, effective August 25, 2017. Petitioner was represented at the March 28, 2017 hearing, and
a petition for review was filed on August 22, 2017, while Pincus was still an active member of
the bar. Pincus has since been restored to active status and has filed an appearance in this Court.
See In re: Attorneys Administratively Suspended Pursuant to Pa. R.C.L.E. 111(b), No. 53 INC.
5
Section 163.303(b) states:
A finding by the chemist that a foreign substance is present in the
test sample shall be prima facie evidence that the foreign substance
was administered and carried in the body of the horse while
participating in a race. This finding shall also be taken as prima
facie evidence that the trainer and his agents responsible for the
care or custody of the horse has been negligent in the handling or
care of the horse.
58 Pa. Code §163.303(b).
6
Section 163.303(c) provides:
A finding by the chemist of a foreign substance or an approved
substance used in violation of this section and §§ 163.301,
163.302, and 163.304-163.308 in a test sample of a horse
participating in a race may result in the horse being disqualified
(Footnote continued on next page…)
7
On appeal to this Court,7,8 Petitioner first argues that the Commission
selectively applied its own regulations to some owners/trainers and their horses,
but not to others. Petitioner states that by not requiring post-race testing from the
other three horses that finished in the money in the ninth race, he was unfairly
penalized. Petitioner emphasizes Klouser’s testimony that, although the regulation
at Section 163.318 required the testing of four horses from the ninth race, it was
“common practice” for the Commission to only test the winning horse, absent
special circumstances. N.T. at 60. Petitioner argues that the Commission must
update its regulations before adopting new practices.
(continued…)
from purse money or other awards except for purposes of
parimutuel wagering which shall be in no way affected.
58 Pa. Code §163.303(c).
7
The Commission moves to quash this appeal citing numerous errors within Petitioner’s
brief and reproduced record. Relying on Commonwealth v. Stoppie, 486 A.2d 994, 995 (Pa.
Super. 1984), the Commission states that an appellant’s failure to comply with the Pennsylvania
Rules of Appellate Procedure may constitute the basis for quashing an appeal. However, when a
brief is defective but its mistakes do not impede our ability to conduct meaningful appellate
review, we will consider the merits on appeal. Sudduth v. Commonwealth, 580 A.2d 929, 930
(Pa. Cmwlth. 1990). Such is the case here.
8
Our scope of review of a Commission order is limited to determining whether the
necessary findings of fact are supported by substantial evidence, whether an error of law was
committed, or whether constitutional rights were violated. MEC Pennsylvania Racing v.
Pennsylvania State Horse Racing Commission, 827 A.2d 580 (Pa. Cmwlth. 2003). Substantial
evidence is such relevant evidence which a reasonable mind might accept as adequate to support
a finding. York Terrace/Beverly Enterprises v. Workmen’s Compensation Appeal Board (Lucas),
591 A.2d 762 (Pa. Cmwlth. 1991). Further, questions of evidentiary weight and resolution of
evidentiary conflicts are for the Commission, not the reviewing court. Bocachica v.
Pennsylvania State Horse Racing Commission, 843 A.2d 450 (Pa. Cmwlth. 2004).
8
The regulation at Section 163.318 requires the Commission to test all
of the horses that win money in exotic wagering races and authorizes the
Commission to subject other horses to testing. The same regulation affords owners
and trainers notice that their horses, especially when they win, may be asked to
submit to drug testing following a race. Petitioner has participated in horse racing
for 30 years, and he does not argue on appeal that he never received notice of this
regulation. Most important, there is no evidence, and Petitioner does not allege,
that any failure by the Commission to test the other three horses somehow affected
CD’s test results or the positive findings of Carisoprodol. Accordingly, whether
the Commission failed to satisfy the regulation’s requirement to test four horses in
the ninth race has no bearing on the disposition of Petitioner’s appeal.
Petitioner also claims that the sampling methodology used was
impermissible. Specifically, he first objects to the use of plasma and serum blood
samples. Relying on Dr. Tobin’s report, Petitioner argues that the respective
results of PETRL and Texas A&M Laboratory cannot confirm one another because
plasma and serum cannot be used interchangeably.9 Petitioner has only pointed out
that the drug level found in the plasma and serum tests varied (i.e., PETRL’s
plasma sample showed 33.6 plus or minus 16.1 pg/ml of Carisoprodol; Texas
9
In her testimony, Dr. Robinson stated that plasma and serum blood samples are
distinguished based on the type of tube used in collecting the sample. N.T. at 85. She noted that
using a tube with an anticoagulant prevents the blood from clotting, creating “plasma,” whereas
using a tube without an anticoagulant, allows the blood to clot, creating “serum.” Id. She
explained that both plasma and serum are considered to be the liquid portion of a blood sample,
but unlike plasma, the clotting proteins have been removed from serum. N.T. at 86.
9
A&M Laboratory’s serum sample indicated 136.3 plus or minus 27.7 pg/ml of
Carisoprodol, F.F. Nos. 6, 10). However, Section 163.315 provides:
Urine or blood test reports prepared by the official
chemist of the Commission shall be deemed prima facie
correct and all steps undertaken in the collection,
preservation, handling and testing thereof shall be
presumed correct in the absence of affirmative proof to
the contrary.
58 Pa. Code §163.315.
Thus, it is Petitioner’s burden to present evidence rebutting the blood
test reports. Other than noting the difference in the amount of Carisoprodol found
by each test, Petitioner has provided no evidence to support his assertion that using
plasma and serum samples somehow altered the outcome of the test results.
Petitioner does not suggest that either test was a false positive and as we will
explain supra, the amount of a prohibited drug found in the horse is irrelevant.
Secondly, Petitioner asserts that the Commission violated Section
163.313 in testing CD’s blood sample when a “primary” urine sample was
available. Section 163.313 states:
A urine sample of the winner of each race and of a horse
running an unusual or abnormal race and of any other
horse as the stewards on the Commission may direct shall
be taken. In the event of difficulty in taking or securing a
sample:
(1) A veterinarian may inject an amount up to and
including 2 cc. of an approved diuretic for the purpose
of enhancing the securing of a sample upon securing
written consent from the trainer.
(2) If a urine sample cannot be obtained within 2
hours after a horse has been received at the detention
10
barn, a blood sample shall be secured by a
veterinarian.
(3) The veterinarian in charge of the detention barn
may, in his sole discretion, take a blood sample in lieu
of a urine sample at any time if he believes it
physiologically to be for the best interests of the
horse.
58 Pa. Code §163.313.
Petitioner interprets this regulation to require testing of urine samples
unless there is difficulty obtaining one or the horse exhibits physiological issues.
Petitioner contends that both urine and blood samples were obtained from CD
following the race, and the Commission failed to provide any justification for
ignoring its own regulatory language by testing CD’s blood sample. Petitioner
states that in recent years, the Commission has preferred blood to urine samples,
and he argues that the Commission cannot implement new practices without first
updating its regulations.10
However, the Commission’s regulations that relate to “urine” and
“blood” sampling do not restrict testing to urine samples or identify urine as the
“primary” sampling form. To the contrary, the usage of blood samples is clearly
authorized. See, e.g., Section 163.302, 58 Pa. Code §163.302 (“a body substance
including but not limited to blood or urine taken from a horse”); Section 163.305,
58 Pa. Code §163.305 (“immediately prior to treatment, a blood sample shall be
taken”).
10
Dr. Robinson testified that per her understanding, urine was the “primary” form of
testing when the Commission’s regulations were first enacted. N.T. at 88. She acknowledged
that presently, blood is an easier sample to work with, and she did not believe the regulations
concerning sampling had yet been updated. N.T. at 88-89.
11
Next, relying on Dr. Tobin’s report, Petitioner argues that CD was not
intentionally provided Carisoprodol, but that the horse tested positive for the drug
most likely because of an unavoidable human transference. Dr. Tobin analogizes
Carisoprodol to caffeine and notes that the ARCI’s guidelines provide that the
accidental human transference of caffeine will be considered as a mitigating factor
in issuing a penalty. Appendix 6, Dr. Tobin’s Report, Attachment 5. Dr. Tobin
stated that the minuscule amount of Carisoprodol found in CD’s body supports
such a finding, especially considering that Carisoprodol is a drug prescribed to
humans for recreational use. Dr. Tobin also opined that CD was likely exposed to
Carisoprodol in the hour before the drug testing occurred, which provided
significant opportunities for inadvertent human contact.
The ARCI guidelines make no exception for an inadvertent
transference of Carisoprodol. Moreover, the Commission found that no
prescriptions for Carisoprodol were issued to any persons associated with the horse
and that the drug was administered to the horse purposefully rather than by
accidental environmental transfer. The Commission implicitly rejected Dr.
Tobin’s report that a single sampling measurement could determine when and how
CD was exposed to the drug. Further, Petitioner’s argument and evidence relating
to the source of the drug exposure was rejected by the Commission and the
Commission’s determination in this regard is not subject to our review. Bocachica
v. Pennsylvania State Horse Racing Commission, 843 A.2d 450, 454 (Pa. Cmwlth.
2004).
Lastly, citing Meyer v. Pennsylvania State Horse Racing Commission,
456 A.2d 1164, 1166 (Pa. Cmwlth. 1983), Petitioner contends that the Commission
abused its discretion by disqualifying CD where both experts agreed that the low
12
concentration of Carisoprodol found in the horse was not likely performance-
enhancing. In Meyer, the first place horse tested positive for a foreign substance.
The Commission fined the horse’s trainer but did not disqualify the horse from the
purse money. The owner of the second place horse appealed to this Court, arguing
that the Commission abused its discretion by not withholding the purse money and
by failing to explain its decision. Affirming, we held that the Commission’s
administrative rules authorized, but did not require, the disqualification of the
horse. We also noted that the Commission cited the testimony of “Dr. Thomas
Tobin, Professor of Veterinary Science and Professor of Toxicology at the
University of Kentucky,” that the substance found in the horse would not have
affected its racing ability. Meyer, 456 A.2d at 1166.
Petitioner maintains that CD’s disqualification in this case enforces a
standard of strict liability because the Commission failed to consider whether the
concentration of the drug in CD affected the horse’s performance. However, we
have previously explained that the amount of a drug found in a horse is irrelevant.
Vaders v. Pennsylvania State Horse Racing Commission, 964 A.2d 56, 59 (Pa.
Cmwlth. 2009). In Vaders, we held that the Commission did not violate a trainer’s
due process rights when it denied his discovery requests. Id. at 56. In so holding,
we explained:
[The petitioner’s] burden was to rebut the presumptions
created under Sections 163.303(b) and 163.315 of the
Commission’s regulations which provide, inter alia, that
a positive finding is prima facie evidence that a foreign
substance was in the horse while it participated in a race.
Knowing the concentration levels that were present in
[the horse] would not help [him] rebut the presumption
that there was a foreign substance in [his] horse on race
day.
13
***
[The petitioner] made no attempt to introduce evidence
or testimony that [he] did not violate the Commission’s
regulations; nor did [he] ever deny that there were
banned substances found in [his] horse.
Id. at 59, 60.
In sum, none of Petitioner’s arguments counter the Commission’s
determination that CD tested positive for a substance prohibited by the
Commission on race day. Contrary to Petitioner’s assertions, he fails to explain
how the testing of only CD in the ninth race, the use of blood instead of urine
sampling, or the distinction between plasma and serum, affects the finding that a
foreign substance was found in the horse on race day, in violation of Section
163.318.
Accordingly, we affirm the Commission’s order.
MICHAEL H. WOJCIK, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Martin Ciresa, :
:
Petitioner :
:
v. : No. 1155 C.D. 2017
:
:
Pennsylvania State Horse :
Racing Commission, :
:
Respondent :
ORDER
AND NOW, this 17th day of January, 2019, the order of the
Pennsylvania State Horse Racing Commission, dated July 26, 2017, is
AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge