On February 15th, Indiana Breeder & Owner Protection, Inc. (IBOP) expressed our outrage (and filed multiple public records requests) to Indiana Horse Racing Commission (IHRC) Chairman Bill Diener and General Counsel Lea Ellingwood regarding one of the administrative law judges (ALJ) under contract with the IHRC. We voiced our outrage that ALJ Kathryn (Janeway) Hostetter, who had been arrested twice in 2012 for operating a vehicle while intoxicated, was still in a position to pass judgment on horseman through the IHRC's adjudication process. On February 22nd, The Blood-Horse picked up this story which can be read at the following link:
http://www.bloodhorse.com/horse-racing/articles/76418/ihrc-cuts-ties-with-administrative-judge
This particular article will expand on a few facts included in the Blood-Horse article, challenge some of the statements made by the IHRC's General Counsel, raise a few issues not covered in the Blood-Horse article and provide documentation so you can judge for yourself. The documents and links provided in this article are all available as public records.
According to the Chronological Case Summary, https://mycase.in.gov with a case number of 32D02-1202-CM-000156 under Criminal & Citation Case Records, Mrs. Hostetter was arrested on Wednesday, February 8, 2012, with charges of operating a vehicle while intoxicated endangering a person, following too closely, and speeding in a school zone. The latter two charges were dismissed as part of a plea agreement on February 24, 2012 which included a judgment of a conviction on the charge of operating a vehicle while intoxicated endangering a person, which is a Class A misdemeanor. In Indiana, operating a vehicle while intoxicated is a Class C misdemeanor which is a lesser offense than the Class A misdemeanor.
Mrs. Hostetter was sentenced to 365 days of confinement and given two days of jail credit and 363 days suspended which required her to be on probation. In addition, the plea agreement required a substance abuse evaluation and treatment plan through IU Health Methodist Hospital, 20 hours of community service, a 30-day suspended license followed by 180 days of a restricted license, and an order to attend a Survivor's Speak Out Program.
As you will see from The Blood-Horse article, Mrs. Hostetter was also employed as a Deputy Prosector for Hendricks County (Ind.). IBOP filed a public records request with the human resources department for Hendricks County for verification of Mrs. Hostetter's employment dates. Follow this link to the file we received from Hendricks County Human Resources Director Ronald Love: http://freepdfhosting.com/35d16ae599.pdf What you will see is that Mrs. Hostetter, Janeway at the time, was first employed as a Deputy Prosecutor with Hendricks County on January 16, 2007 at a salary of $43,000. What you will also see is that Mrs. Hostetter was terminated from her position effective on February 8, 2012 which was the date of her first arrest. She is also indicated as not being subject to rehire. At the time of her termination, she was earning a salary of $58,711. While she was immediately terminated from her role as a deputy prosecutor for a govermental agency, the question we are raising is should the IHRC, another governmental agency, have also immediately terminated her contract as an ALJ? Because of her conviction Mrs. Hostetter was facing her own administrative proceeding that could have had an affect on her ability to practice law in Indiana, but you be the judge.
On January 28, 2013, Mrs. (Janeway) Hostetter was disciplined for her first offense by the Indiana Supreme Court in the form of a public reprimand. The order from the Indiana Supreme Court can be found at the following link: http://www.in.gov/judiciary/files/order-discipline-2013-32S00-1207-DI-421.pdf What you will see is that Mrs. Hostetter agreed to violating Indiana Professional Conduct Rule 8.4(d), which prohibits lawyers from engaging in conduct prejudicial to the administration of justice. This admitted violation was pointed out in the Blood-Horse article; however, let's examine the phrase "prejudicial to the administration of justice."
As an ALJ for the IHRC, Mrs. Hostetter was contracted as part of what the IHRC believes is the administration of justice where administrative proceedings are concerned. When we consulted Bing Dictionary, the first definition of prejudicial is "resulting in harm: causing disadvantage or harm to somebody or something." In this case then, Mrs. Hostetter admitted to causing disadvantage or harm to the administration of justice. With her admission, did the disadvantage or the harm begin when she was arrested on February 8, 2012 or with the Indiana Supreme Court's reprimand on January 28, 2013? You be the judge.
As noted in The Blood-Horse article, Mrs. Hostetter was once again arrested on December 3, 2012. The Chronological Case Summary,
https://mycase.in.gov with a case number of 32D02-1302-FD-000123 under Criminal & Citation Case Records, indicates that Mrs. Hostetter was arrested for operating a vehicle while intoxicated endangering a person which due to her prior conviction is now a Class D felony. She was also charged with having a blood alcohol content of .15% or greater (the legal limit in Indiana is .08%), following too closely, and traveling at an unreasonable speed for the conditions. Mrs. Hostetter's initial hearing on these charges is scheduled for March 22, 2013. As with anyone, Mrs. Hostetter should be assumed to be innocent until proven otherwise. IBOP was founded on the concept of the protection of rights, and Mrs. Hostetter is entitled to the very same presumption. With her second arrest, an initial hearing on a possible probation violation was scheduled for February 22, 2013, and that hearing was continued with no date scheduled at this time.
You can infer from The Blood-Horse article that the IHRC knew about Mrs. Hostetter's conviction. IBOP has filed public records requests for correspondence between the IHRC staff, the Attorney General's Office, and each individual commissioner in this matter. The goal is to determine who knew what and when, in an effort to provide transparency on why Mrs. Hostetter wasn't immediately terminated. According to state law 'IC 4-21.5-3-10 Disqualification of administrative law judge' through "Sec. 10. (a) Any individual serving or designated to serve alone or with others as an administrative law judge is subject to disqualification for: (1)....(4) any cause for which a judge of a court may be disqualified." In short, judges are supposed to follow the law and an arrest and conviction would be grounds to have a judge removed. But, you be the judge.
After IBOP informed the IHRC of Mrs. Hostetter's second arrest, we were told by Chairman Bill Diener that he instructed the IHRC staff to report this information to the Indiana Supreme Court Disciplinary Commission. While Mrs. Hostetter self-reported her first arrest and conviction to the both the IHRC and the Indiana Supreme Court Disciplinary Commission, she did not self-report her second arrest to either as required. Does a failure to comply with a professional, ethical, and contractual obligation expose a person's character? Again, you be the judge.
While not a direct quote from Ms. Ellingwood, The Blood-Horse article suggests that since no criminal matters were pending when Mrs. Hostetter's contract came up for renewal, which was on June 30, 2012, that the IHRC had no issue with renewing her contract. Our view is that every day a person wakes up while on probation, there is a pending legal issue until the probation expires. Would a licensee, under IHRC probation, not have to report the probation as a pending matter with any other racing jurisdiction when applying for a license? The article also suggests that "no questions were raised about Hostetter's ability to do her job or complaints about her performance throughout 2012." We see that reported statement, if accurate, as being abolutely false.
Mrs. Hostetter's most high profile case was sitting in judgment of Janey Adams, an owner-trainer accused of mistreating a horse. Ms. Adams was summarily suspended by the IHRC in July, 2011, with a recommended penalty of a 10-year license suspension. Ms. Adams appealed the suspension and Mrs. Hostetter assigned as the ALJ. Ms. Adams requested a stay from the suspension while her appeal was being adjudicated. That motion for a stay was denied by Mrs. Hostetter. On June 23, 2012, the third day of Ms. Adams hearing in front of Mrs. Hostetter, IHRC attorney Robin Babbitt asked to read from the stay petition. Mrs. Hostetter responded, "Sure. Can you remind me, was the stay granted or denied?" (Page 591, Lines 17 through 18 of the offical transcript) While she was the one who denied the stay, after months of being the ALJ and three days of hearings, she had to be reminded of her own actions. This fact was pointed out to the IHRC in IBOP's communication regarding Mrs. Hostetter's second arrest. We were directly commenting on her performance as an ALJ.
Also, Michael Red, who represented Ms. Adams, questioned Mrs. Hostetter's preformance as an ALJ directly in front of the IHRC on August 30, 2012. Once an ALJ authors an opinion on a matter, the IHRC holds a hearing to consider the opinion. Mr. Red delivered multiple complaints about Mrs. Hostetter as an ALJ. With the 'judge for yourself' theme, this link will take you to pages 11 through 16 of the official transcript of the August 30, 2012 hearing: http://freepdfhosting.com/a4062715a3.pdf. What you'll see is Mr. Red raises significant questions about Mrs. Hostetter's ability to do her job. In addition, the result of the August 30th hearing was that the IHRC remanded Mrs. Hostetter's opinion, meaning the opinion was sent back to her, with instructions that pointed out that she hadn't done her job correctly. So, the IHRC even had issues with Mrs. Hostetter's performance as an ALJ. The relevant pages from the transcript regarding the remand decision can be found at the following link: http://freepdfhosting.com/baee1ad912.pdf
We also take issue with a quote from Ms. Ellingwood in The Blood-Horse article with her saying, "We have a very active commission that carefully vets all cases sent along for review." That is hardy the case. At the beginning of page 13 of the above mentioned transcript, one of the commissioners actually interrupted Mr. Red to ask if the horse in question was a race horse. A commissioner who would have 'vetted' a case (or even cared to read the case) where a person's livlihood is possibly at risk would never have asked such a ignorant question.
While this article is not intended to delve into Ms. Adams case, it does serve as an example of Mrs. Hostetter's sutiability as an ALJ. However, we've found an even more potentially egregious issue, and we stress potentially, as it relates to Mrs. Hostetter and her contract renewal with the IHRC. Mrs. Hostetter's contract, which paid her $175 per hour, expired on June 30, 2012. The same terms applied to her new two-year contract which can be found at the following link: https://fs85.gmis.in.gov/IDOAcontracts/public/66209-000.pdf. As you will see, the Executive Document Summary indicates a "Date Prepared" of August 15, 2012 which is six weeks after her prior contract's expiration. Mrs. Hostetter's signature was applied to the contract on August 16, 2012. In between the one contract's expiration on June 30, 2012, and August 15, 2012, Mrs. Hostetter delivered her opinion on Ms. Adams to the IHRC.
The apperance of impropriety of Mrs. Hostetter first delivering her opinion in support of a 10-year suspension for Ms. Adams, which was issued on July 23, 2012, then signing a new contract has significance, especially considering that IHRC Executive Director signed the contract on behalf of the IHRC with a date of Sunday, July 1, 2012. We've pointed this peculiarity out to Chairman Diener. We've received no explanation, but you be the judge.
Sunday, February 24, 2013
Friday, February 15, 2013
Supplemental Information For IBOP's Newsletter
Below is the supplement information to IBOP's February newsletter article regarding the Indiana Downs track closure which can be found at the following link: http://freepdfhosting.com/c8fde5e44d.pdf. Except where indicated, the order of the documents below comprised the hand-out of the Indiana Horse Racing Commission's (IHRC) Final Report at their June 26, 2012.
Indiana Horse Racing Commission's Final Report - Indiana Downs Track Closure: http://freepdfhosting.com/4e1a7bbd0a.pdf (Four Pages)
Indiana Horse Racing Commission's DIRECTIVE, June 14, 2012: http://freepdfhosting.com/e9ecc858f2.pdf (One Page)
Indiana Horse Racing Commission's DIRECTIVE, June 15, 2012: http://freepdfhosting.com/ca02b95b95.pdf (One Page)
Indiana HBPA Track Condition Petition: http://freepdfhosting.com/f3222d8413.pdf (Three Pages)***
Indiana Downs' Response to Indiana HBPA Petition, June 12, 2012: http://freepdfhosting.com/9bb37a391d.pdf (Three Pages)
***The "Original Message" (Page 1 of 3), which was an email sent June 12, 2012 at 1:39 PM from Indiana HBPA Executive Director Mike Brown to IHRC Executive Director Joe Gorajec, was NOT included in the IHRC's Final Report handed out at the June 26, 2012 IHRC meeting. What was included was the Indiana HBPA "Questions-Complaints" form that was submitted to Indiana Downs, but not submitted to the IHRC. The Indiana HBPA "Questions-Complaints" form at be found at the following link: http://freepdfhosting.com/ed6ed28da4.pdf (One Page)
This "Questions-Complaints" form was inserted into the IHRC's Final Report hand-out giving the appearance as if the form was submitted to the IHRC as part of the June 12, 2012 communication from the Indiana HBPA.
The balance of the Final Report was a post-cancellation letter from Tom Mosley, Director of Industry Relations for the Quarter Horse Racing Association of Indiana (QHRAI) to IHRC Executive Director Joe Gorajec as well as the management team at Indiana Downs. The letter, which states that the QHRAI has "heard NOT ONE horsemen consider the surface at Indiana Downs dangerous," included several emails from QHRAI members that support the QHRAI's view. To avoid redundancy, the letter and supporting emails are not included in our supplemental information. However, upon written request to ibopindy@aol.com, we will provide the 17 pages included in the IHRC's Final Report.
Pages 21 through 30, which is the entire discussion of the Indiana Downs track closure from the official transcript of the IHRC meeting on June 26, 2012, can be found at the following link: http://freepdfhosting.com/c26d63126e.pdf
Indiana Horse Racing Commission's Final Report - Indiana Downs Track Closure: http://freepdfhosting.com/4e1a7bbd0a.pdf (Four Pages)
Indiana Horse Racing Commission's DIRECTIVE, June 14, 2012: http://freepdfhosting.com/e9ecc858f2.pdf (One Page)
Indiana Horse Racing Commission's DIRECTIVE, June 15, 2012: http://freepdfhosting.com/ca02b95b95.pdf (One Page)
Indiana HBPA Track Condition Petition: http://freepdfhosting.com/f3222d8413.pdf (Three Pages)***
Indiana Downs' Response to Indiana HBPA Petition, June 12, 2012: http://freepdfhosting.com/9bb37a391d.pdf (Three Pages)
***The "Original Message" (Page 1 of 3), which was an email sent June 12, 2012 at 1:39 PM from Indiana HBPA Executive Director Mike Brown to IHRC Executive Director Joe Gorajec, was NOT included in the IHRC's Final Report handed out at the June 26, 2012 IHRC meeting. What was included was the Indiana HBPA "Questions-Complaints" form that was submitted to Indiana Downs, but not submitted to the IHRC. The Indiana HBPA "Questions-Complaints" form at be found at the following link: http://freepdfhosting.com/ed6ed28da4.pdf (One Page)
This "Questions-Complaints" form was inserted into the IHRC's Final Report hand-out giving the appearance as if the form was submitted to the IHRC as part of the June 12, 2012 communication from the Indiana HBPA.
The balance of the Final Report was a post-cancellation letter from Tom Mosley, Director of Industry Relations for the Quarter Horse Racing Association of Indiana (QHRAI) to IHRC Executive Director Joe Gorajec as well as the management team at Indiana Downs. The letter, which states that the QHRAI has "heard NOT ONE horsemen consider the surface at Indiana Downs dangerous," included several emails from QHRAI members that support the QHRAI's view. To avoid redundancy, the letter and supporting emails are not included in our supplemental information. However, upon written request to ibopindy@aol.com, we will provide the 17 pages included in the IHRC's Final Report.
Pages 21 through 30, which is the entire discussion of the Indiana Downs track closure from the official transcript of the IHRC meeting on June 26, 2012, can be found at the following link: http://freepdfhosting.com/c26d63126e.pdf
Tuesday, February 12, 2013
Request to Modify 71 IAC 7.5-5-1 Horses Ineligible
Pursuant to ‘71 IAC 2-12-1 Procedures,’ Indiana Breeder & Owner Protection, Inc. (IBOP) is requesting that the Indiana Horse Racing Commission (IHRC) consider the amendment of '71 IAC 7.5-5-1 Horses ineligible'. Please consider this correspondence as IBOP’s petition for the IHRC to amend this administrative rule by striking 71 IAC 7.5-5-1(a)(28) which prohibits a thoroughbred or quarter horse age 12 or above from participating in racing in Indiana. With this particular petition, our request does not include the corresponding rule in the standardbred racing rule book which deems horses to be ineligible at fifteen years of age and over.
IBOP's view is that the restriction provided by 71 IAC 7.5-5-1(a)(28), which was added in March of 2008, is an arbitrary limitation on an owner's ability to determine, in conjunction with their trainer and veterinary professionals, the length of a horse's racing career. IBOP would appreciate the modification to this rule be considered as an agenda item at the next regularly scheduled IHRC meeting. Given Governor Pence's moratorium on regulations as per Executive Order 13-03, we feel that this request would fall under the exception for "rules that repeal existing rules or reduce their regulatory impact."
In our review of the administrative codes of surrounding racing states, we found no such age restriction in Kentucky (810 KAR 1:012.8), in Illinois (Section 1413.230 or Section 1413.250), or in Ohio (Chapter 3769-5-33). While we did not conduct an exhaustive review of all racing states, we did also discover that Florida has no such requirement as well. In addition, our review of the Association of Racing Commissioners International (ARCI) Model Rules, after which 71 IAC 7.5-5-1 is patterned to a very large degree, we find no restriction as in 71 IAC 7.5-5-1(a)(28) in 'ARCI-010-030 Horses Ineligible.'
The common thread in all of the administrative rules that we reviewed, including 71 IAC 7.5-5-1, is to provide safeguards to the equine athlete by requiring that a horse be in sound racing condition to be eligible to race. 71 IAC 7.5-5-1(a)(15) specifically makes a horse ineligible if "it is not in sound racing condition." In addition, per IHRC rules, the Official Veterinarian has the ability to safeguard equine athletes by being able to recommend to the stewards "any horse deemed unsafe to be raced" or "a horse that it would be inhumane to allow to race." The protections provided the equine athlete are already substantial within the Indiana Administrative Code. IBOP's petition is centered in the belief that soundness should always be the determination of eligibility to race, but not necessarily an arbitrary age.
As an example, we only need to point to Indiana-bred Heza Wild Guy, who is the second leading money earner of all-time for an Indiana-bred with $694,447 in lifetime earnings. (Heza Wild Guy 's total was surpassed by Unreachable Star in 2012 with $701,732 in lifetime earnings.) Having just turned 12-years old, the age restriction in 71 IAC 7.5-5-1 makes Heza Wild Guy ineligible to race in Indiana. According to his trainer, this multiple stakes winner is sound after 84 lifetime starts (32 wins) and is training toward his first start in 2013. This is after coming off of an 11-year old campaign that included two wins and two third place finishes in six races in Indiana, including a win in his last race in September.
We would appreciate your consideration of this petition. For convenience, 71 IAC 7.5-5-1 is copied below:
71 IAC 7.5-5-1 Horses ineligible
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 1. (a) A horse is ineligible to start in a race when:
(1) it is not stabled on the grounds of the association or present by the time established by the commission;
(2) its breed registration certificate is not on file with the racing secretary or horse identifier, unless the racing secretary has submitted the certificate to the appropriate breed registry for correction, or the information contained on the registration certificate is available to the racing secretary, or his designee, through the electronic registration system:
(i) the stewards for good cause may waive this requirement if the horse is otherwise correctly identified to the satisfaction of the stewards and identifier;
(ii) upon claim, sale, or any other transfer of ownership and the foal certificate is not otherwise on file with the racing secretary, the previous owner shall present the foal certificate to the racing secretary within seventy-two (72) hours of the change of ownership so the ownership can be updated;
(iii) if the electronic registration system fails for any reason, the stewards may require presentation of a horse's registration certificate prior to a horse being entered or raced in Indiana;
(iv) the stewards may at any time require presentation of a horse's registration certificate; and
(v) a horse may not receive a preference date prior to entry unless the horse's registration paper is on file with the racing secretary;
(3) it is not fully identified and tattooed is the inside of the upper lip or identified by any other method approved by the appropriate breed registry and the commission;
(4) it has been fraudulently entered or raced in any jurisdiction under a different name, with an altered registration certificate, or altered lip tattoo or other identification method approved by the appropriate breed registry and the commission;
(5) it is wholly or partially owned by a disqualified person or a horse is under the direct or indirect training or management of a disqualified person;
(6) it is wholly or partially owned by the spouse of a disqualified person or a horse is under the direct or indirect management of the spouse of a disqualified person, in such cases, it being presumed that the disqualified person and spouse constitute a single financial entity with respect to the horse, which presumption may be rebutted;
(7) the stakes or entrance money for the horse has not been paid, in accordance with the conditions of the race;
(8) its name appears on the starter's list, stewards' list, or veterinarian's list;
(9) it is a first time starter and has not been approved to start by the starter;
(10) it is owned in whole or in part by an undisclosed person or interest;
(11) it lacks sufficient official published workouts or race past performances;
(12) it has been entered in a stakes race and has subsequently been transferred with its engagements unless the racing secretary has been notified of such prior to the start;
(13) it is subject to a lien which has not been approved by the stewards and filed with the horsemen's bookkeeper;
(14) it is subject to a lease not filed with the stewards;
(15) it is not in sound racing condition;
(16) it has had a posterior digital neurectomy (heel denerving), which has not been approved by the official veterinarian;
(17) it has been trachea tubed to artificially assist breathing;
(18) it has been blocked with alcohol or otherwise drugged or surgically denerved to desensitize the nerves above the ankle;
(19) it has impaired eyesight in both eyes;
(20) it is barred or suspended in any recognized jurisdiction;
(21) it does not meet the eligibility conditions of the race;
(22) its owner or lessor is in arrears for any stakes fees, except with approval of the racing secretary;
(23) its owners, lessors, lessees, or trainer have not completed the licensing procedures required by the commission;
(24) it is by an unknown sire or out of an unknown mare;
(25) there is no negative test certificate for equine infectious anemia issued within the preceding twelve (12) months attached to its breed registration certificate;
(26) if a quarter horse, it has shoes (racing plates) that have toe grabs with a height greater than four (4) millimeters (fifteenthousa nd seven hundred forty-eight hundred-thousandths (0.15748) inches), or any other traction device on the front hooves while racing or training on all racing surfaces;
(27) if a thoroughbred, it has shoes (racing plates) which have toe grabs with a height greater than two (2) millimeters (seventho usand eight hundred seventy-four hundred-thousandths (0.07874) inches), bends, jar caulks, stickers, or any other traction device on the front hooves while racing or training on all racing surfaces;
(28) it has reached the age of twelve (12); or
(29) it is a maiden that has reached the age of six (6);
(30) whose race date is within ten (10) days of having extracorporeal shock wave or radial pulse wave therapy.
(b) The stewards may consider extenuating circumstances in determining ineligibility of a horse with respect to subsection (a)(1) and subsection (a)(2) [Subsection (a)(1) and (a)(2)]. (Indiana Horse Racing Commission; 71 IAC 7.5-5-1; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2870, eff Jul 1, 1995; emergency rule filed Aug 9, 1995, 10:30 a.m.: 18 IR 3408; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA; emergency rule filed Jul 23, 2007, 9:16 a.m.: 20070808-IR-071070461ERA, eff Jul 18, 2007 [IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the Publisher. LSA Document #07-461(E) was filed with the Publisher July 23, 2007.]; errata filed Aug 14, 2007, 1:28 p.m.: 20070829-IR-071070461ACA; emergency rule filed Mar 12, 2008, 1:53 p.m.: 20080326-IR-071080191ERA, eff Mar 11, 2008 [IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the Publisher. LSA Document #08-191(E) was filed with the Publisher March 12, 2008.]; emergency rule filed Mar 19, 2009, 11:07 a.m.: 20090401-IR-071090195ERA, eff Mar 12, 2009 [IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the Publisher. LSA Document #09-195(E) was filed with the Publisher March 19, 2009.]; emergency rule filed Mar 23, 2010, 1:27 p.m.: 20100331-IR-071100170ERA; emergency rule filed Mar 8, 2012, 11:43 a.m.: 20120321-IR-071120117ERA; emergency rule filed Jul 5, 2012, 2:14 p.m.: 20120718-IR-071120402ERA)
Thank You,
Jim Hartman
IBOP Vice-President
CC: Chairman Diener
Vice-Chairman Schaefer
Commissioner Grimes
Commissioner Barclay
Commissioner Schenkel
IBOP's view is that the restriction provided by 71 IAC 7.5-5-1(a)(28), which was added in March of 2008, is an arbitrary limitation on an owner's ability to determine, in conjunction with their trainer and veterinary professionals, the length of a horse's racing career. IBOP would appreciate the modification to this rule be considered as an agenda item at the next regularly scheduled IHRC meeting. Given Governor Pence's moratorium on regulations as per Executive Order 13-03, we feel that this request would fall under the exception for "rules that repeal existing rules or reduce their regulatory impact."
In our review of the administrative codes of surrounding racing states, we found no such age restriction in Kentucky (810 KAR 1:012.8), in Illinois (Section 1413.230 or Section 1413.250), or in Ohio (Chapter 3769-5-33). While we did not conduct an exhaustive review of all racing states, we did also discover that Florida has no such requirement as well. In addition, our review of the Association of Racing Commissioners International (ARCI) Model Rules, after which 71 IAC 7.5-5-1 is patterned to a very large degree, we find no restriction as in 71 IAC 7.5-5-1(a)(28) in 'ARCI-010-030 Horses Ineligible.'
The common thread in all of the administrative rules that we reviewed, including 71 IAC 7.5-5-1, is to provide safeguards to the equine athlete by requiring that a horse be in sound racing condition to be eligible to race. 71 IAC 7.5-5-1(a)(15) specifically makes a horse ineligible if "it is not in sound racing condition." In addition, per IHRC rules, the Official Veterinarian has the ability to safeguard equine athletes by being able to recommend to the stewards "any horse deemed unsafe to be raced" or "a horse that it would be inhumane to allow to race." The protections provided the equine athlete are already substantial within the Indiana Administrative Code. IBOP's petition is centered in the belief that soundness should always be the determination of eligibility to race, but not necessarily an arbitrary age.
As an example, we only need to point to Indiana-bred Heza Wild Guy, who is the second leading money earner of all-time for an Indiana-bred with $694,447 in lifetime earnings. (Heza Wild Guy 's total was surpassed by Unreachable Star in 2012 with $701,732 in lifetime earnings.) Having just turned 12-years old, the age restriction in 71 IAC 7.5-5-1 makes Heza Wild Guy ineligible to race in Indiana. According to his trainer, this multiple stakes winner is sound after 84 lifetime starts (32 wins) and is training toward his first start in 2013. This is after coming off of an 11-year old campaign that included two wins and two third place finishes in six races in Indiana, including a win in his last race in September.
We would appreciate your consideration of this petition. For convenience, 71 IAC 7.5-5-1 is copied below:
71 IAC 7.5-5-1 Horses ineligible
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 1. (a) A horse is ineligible to start in a race when:
(1) it is not stabled on the grounds of the association or present by the time established by the commission;
(2) its breed registration certificate is not on file with the racing secretary or horse identifier, unless the racing secretary has submitted the certificate to the appropriate breed registry for correction, or the information contained on the registration certificate is available to the racing secretary, or his designee, through the electronic registration system:
(i) the stewards for good cause may waive this requirement if the horse is otherwise correctly identified to the satisfaction of the stewards and identifier;
(ii) upon claim, sale, or any other transfer of ownership and the foal certificate is not otherwise on file with the racing secretary, the previous owner shall present the foal certificate to the racing secretary within seventy-two (72) hours of the change of ownership so the ownership can be updated;
(iii) if the electronic registration system fails for any reason, the stewards may require presentation of a horse's registration certificate prior to a horse being entered or raced in Indiana;
(iv) the stewards may at any time require presentation of a horse's registration certificate; and
(v) a horse may not receive a preference date prior to entry unless the horse's registration paper is on file with the racing secretary;
(3) it is not fully identified and tattooed is the inside of the upper lip or identified by any other method approved by the appropriate breed registry and the commission;
(4) it has been fraudulently entered or raced in any jurisdiction under a different name, with an altered registration certificate, or altered lip tattoo or other identification method approved by the appropriate breed registry and the commission;
(5) it is wholly or partially owned by a disqualified person or a horse is under the direct or indirect training or management of a disqualified person;
(6) it is wholly or partially owned by the spouse of a disqualified person or a horse is under the direct or indirect management of the spouse of a disqualified person, in such cases, it being presumed that the disqualified person and spouse constitute a single financial entity with respect to the horse, which presumption may be rebutted;
(7) the stakes or entrance money for the horse has not been paid, in accordance with the conditions of the race;
(8) its name appears on the starter's list, stewards' list, or veterinarian's list;
(9) it is a first time starter and has not been approved to start by the starter;
(10) it is owned in whole or in part by an undisclosed person or interest;
(11) it lacks sufficient official published workouts or race past performances;
(12) it has been entered in a stakes race and has subsequently been transferred with its engagements unless the racing secretary has been notified of such prior to the start;
(13) it is subject to a lien which has not been approved by the stewards and filed with the horsemen's bookkeeper;
(14) it is subject to a lease not filed with the stewards;
(15) it is not in sound racing condition;
(16) it has had a posterior digital neurectomy (heel denerving), which has not been approved by the official veterinarian;
(17) it has been trachea tubed to artificially assist breathing;
(18) it has been blocked with alcohol or otherwise drugged or surgically denerved to desensitize the nerves above the ankle;
(19) it has impaired eyesight in both eyes;
(20) it is barred or suspended in any recognized jurisdiction;
(21) it does not meet the eligibility conditions of the race;
(22) its owner or lessor is in arrears for any stakes fees, except with approval of the racing secretary;
(23) its owners, lessors, lessees, or trainer have not completed the licensing procedures required by the commission;
(24) it is by an unknown sire or out of an unknown mare;
(25) there is no negative test certificate for equine infectious anemia issued within the preceding twelve (12) months attached to its breed registration certificate;
(26) if a quarter horse, it has shoes (racing plates) that have toe grabs with a height greater than four (4) millimeters (fifteenthousa nd seven hundred forty-eight hundred-thousandths (0.15748) inches), or any other traction device on the front hooves while racing or training on all racing surfaces;
(27) if a thoroughbred, it has shoes (racing plates) which have toe grabs with a height greater than two (2) millimeters (seventho usand eight hundred seventy-four hundred-thousandths (0.07874) inches), bends, jar caulks, stickers, or any other traction device on the front hooves while racing or training on all racing surfaces;
(28) it has reached the age of twelve (12); or
(29) it is a maiden that has reached the age of six (6);
(30) whose race date is within ten (10) days of having extracorporeal shock wave or radial pulse wave therapy.
(b) The stewards may consider extenuating circumstances in determining ineligibility of a horse with respect to subsection (a)(1) and subsection (a)(2) [Subsection (a)(1) and (a)(2)]. (Indiana Horse Racing Commission; 71 IAC 7.5-5-1; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2870, eff Jul 1, 1995; emergency rule filed Aug 9, 1995, 10:30 a.m.: 18 IR 3408; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA; emergency rule filed Jul 23, 2007, 9:16 a.m.: 20070808-IR-071070461ERA, eff Jul 18, 2007 [IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the Publisher. LSA Document #07-461(E) was filed with the Publisher July 23, 2007.]; errata filed Aug 14, 2007, 1:28 p.m.: 20070829-IR-071070461ACA; emergency rule filed Mar 12, 2008, 1:53 p.m.: 20080326-IR-071080191ERA, eff Mar 11, 2008 [IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the Publisher. LSA Document #08-191(E) was filed with the Publisher March 12, 2008.]; emergency rule filed Mar 19, 2009, 11:07 a.m.: 20090401-IR-071090195ERA, eff Mar 12, 2009 [IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the Publisher. LSA Document #09-195(E) was filed with the Publisher March 19, 2009.]; emergency rule filed Mar 23, 2010, 1:27 p.m.: 20100331-IR-071100170ERA; emergency rule filed Mar 8, 2012, 11:43 a.m.: 20120321-IR-071120117ERA; emergency rule filed Jul 5, 2012, 2:14 p.m.: 20120718-IR-071120402ERA)
Thank You,
Jim Hartman
IBOP Vice-President
CC: Chairman Diener
Vice-Chairman Schaefer
Commissioner Grimes
Commissioner Barclay
Commissioner Schenkel
Saturday, February 2, 2013
Administrative Rule of the Month - 71 IAC 8.5-3-3 Administrative Procedures Prior to Split Sample Testing
Two of the key initiatives communicated in Indiana Breeder and Owner Protection Inc.'s (IBOP) first newsletter were the 'Protection of Owner's Rights' as well as the 'Protection of the Integrity Involved with Drug Testing' as part of our mission. February's 'Administrative Rule of the Month' is a review of a rule where the owner's rights and drug testing merge together with '71 IAC 8.5-3-3 Administrative procedures prior to split sample testing' in the flat racing rulebook. The equivalent rule in the standardbred rulebook, '71 IAC 8-4-3,' which omits one sentence that is included in the flat racing rule, will not be specifically reviewed. Yet, the standardbred rule has the exact same issues that will be pointed out in this article.
Like most other racing jurisdictions, if not all other racing jurisdictions, the Indiana Horse Racing Commission (IHRC) has adopted "trainer responsibility" rules (71 IAC 5.5-3-2) whereby the trainer is responsible for the presence of a prohibited substance or a medication in excess of an allowable level. The section of the rulebook that includes all of the IHRC's medication rules is dotted with the sentiment behind the trainer responsibility rule where the presumption is that any violation for a medication overage or prohibited substance "was administered and carried in the body of the horse while participating in a race." If there's a violation, the trainer is supposedly the sole responsible party. Yet, there are consequences to the owner as well with the potential of loss of purse money, fines, and under IHRC rules be required to stable all horses participating in a race meet at the track. Under '71 IAC 5.5-2-6 Owner - positive tests' just two positive tests for a prohibited substance in a five-year period can place an owner into this IHRC requirement. So, while the trainer is responsible, the owner can be significantly penalized as well.
Through administrative rules, the IHRC has tried to tie their penalty system for both an owner and a trainer to the Association of Racing Commissioners International's (ARCI) Uniform Classification Guidelines For Foreign Substances and Recommended Penalties. The most recent version of this document can be found at the following link: http://arci.com/druglisting.pdf. If you review this document, what you will see is that there is a penalty structure for the most serious violations (Class A) to the least serious (Class C) violations. Within each classification, the severity of the penalties to an owner is significantly ramped up for a third violation in a 365-day period in any jurisdiction within an owner's entire "stable." (The term stable is not defined which opens it's meaning to interpretation.) A question that IBOP is raising with our Administrative Rule of the Month is, are the trainer's and owner's interests always the same or always aligned given the potential ARCI penalties?
Our answer is that many times, and we stress many times, the interests of the owner and the trainer are aligned. However, there are times when they may not be, and the problem we see is that the 'administrative procedures prior to split sample testing' rules treat the owner and the trainer as one entity with interests that are the same ALL the time, and that needs to be changed. Since trainers can, and do, train horses for multiple owners, a trainer's third violation within any penalty class in a 365-day period could be an owner's first violation. Conversely, owners can, and some do, have their "stable" spread out over more than one trainer and/or have trainers at multiple locations. Therefore, an owner's third violation in 365-day period, even spread over multiple trainers, could very well be the first violation for a trainer. In both these examples, the owner and the trainer are in different penalty scenarios under the ARCI model penalties. For example, a small overage of bute is a Class C penalty. The first violation for a trainer can very well be just a warning, but if its the third for the owner in a 365-day period, there is a loss of purse money which is a much more severe penalty. The first violation in this category for an owner does not include a loss of the purse.
We can think of other scenarios where an owner's interests might be different than his or her trainer's. Here's exactly how the rule reads as of today and we've highlighted a few trouble spots in bold:
71 IAC 8.5-3-3 Administrative procedures prior to split sample testing
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 3. (a) The results of all tests performed by the primary laboratory or laboratories are confidential and shall only be communicated to the commission, stewards, owner, and trainer. The trainer shall be responsible for promptly notifying the owner of a horse of a positive test as reported by the primary laboratory.
(b) The trainer or owner of a horse for which a positive result on a drug test is returned may request that the stewards submit the retained part of the specimen for testing in accordance with this section. The specimen must be tested by a laboratory that is identified on the list of approved laboratories maintained by the commission and acceptable to the following:
(1) The commission.
(2) The primary laboratory.
Laboratories providing split sample testing shall be ISO 17025 accredited unless otherwise approved by the commission. The request must be in writing and must be delivered to the stewards not later than seventy-two (72) hours after the trainer has received notice of a positive test result. Notice of a positive test result may be communicated verbally to the trainer. Failure to request testing of a split sample within seventy-two (72) hours shall constitute a waiver of the right. The split sample laboratory shall be contacted by a representative of the commission to request acceptance of a split sample. The trainer or owner may choose any laboratory on the commission maintained applicable list to test the sample. However, the commission or executive director may limit the choice of laboratory for the detection of specific drugs.
(c) The trainer or owner may elect to waive his or her right to testing of a split sample.
(d) The owner or trainer of a horse who submits a specimen for drug testing is entitled to be present or have a representative present at any time that the retained part of the specimen is prepared for storage or is tested.
(e) The owner or trainer of a horse who submits a specimen for testing to a split sample laboratory must execute a hold harmless agreement for the split sample laboratory and an agreement that the results of the split sample laboratory can be introduced as evidence in any hearing. The agreements shall remain in the hands of the stewards of the state in which the positive was reported.
(f) The trainer or owner may request that negative control samples be tested with the split sample. The identities of the negative control samples and the split sample shall be known only to the commission.
(g) The presence of a drug or drug metabolite in any quantity, excluding phenylbutazone, flunixin, ketoprofen, furosemide, or as permitted in 71 IAC 8.5-1-4.2 and 71 IAC 8.5-1-9, is sufficient for a finding of a positive test.
(Please Note: We've removed the standard History Line from the rule to save some space.)
Subsection (a) states, "The results of all tests performed by the primary laboratory or laboratories are confidential and shall only be communicated to the commission, stewards, owner, and trainer." So, the owner and the trainer are included for notification, but in reality, the next sentence places the responsibility of notifying the owner on the trainer, "The trainer shall be responsible for promptly notifying the owner of a horse of a positive test as reported by the primary laboratory." Given the IHRC's delegation of the notification to the trainer, the first sentence should read "...shall only be communicated to the commission, stewards, and trainer." While we agree that most trainers would immediately notify the owner, there is never a guarantee especially if the impact of any penalty to a trainer is minimal with an assumption that any potential penalty to the owner would be as well. Could there also be a scenario where the trainer wouldn't want the owner to know immediately? We feel that the IHRC should also notify the owner. The other concern we have is that subsection (b) states, "Notice of a positive test result may be communicated verbally to the trainer." Basically, the IHRC does not have to notify the owner of the horse of a primary positive test and has no requirement to notify anyone in writing. Providing notification in writing eliminates any potential dispute as to 'what was said to whom and when?'
IBOP is committed to petitioning the IHRC to change this rule to add a requirement that the owner of a horse and its trainer be notified in writing of a positive test for a prohibited substance or an overage of an approved medication. Given the potential consequences to both an owner and a trainer, the IHRC not being required to provide a written notification to anyone is dumbfounding. IBOP is also committed to petitioning the IHRC to require this written notification within 72 hours of the receipt of the results from their primary lab. With no specific requirement in which the IHRC is required to provide primary test results to anyone; theoretically, days, weeks and months could go by. The 72 hour notification is the same amount of time that the IHRC has given an owner or a trainer to request a split sample test when a primary test is positive. If the IHRC believes that is a reasonable time for a response, then we believe 72 hours is a reasonable timeframe for a notification. IBOP is also committed to petition the IHRC to modify subsection (c) to read "The trainer and owner may elect to waive his or her right to testing of a split sample." The sentence current reads "trainer or owner." This change would allow for both parties to be treated as having separate interests, not a combined interest.
Ironically, the IHRC through "71 IAC 8.5-3-4 Administrative procedures subsequent to split sample testing" does require that a written report from the split sample laboratory be provided to both the owner and the trainer. 71 IAC 8.5-3-4(a) reads, "The split sample laboratory shall send a confidential written report on the result of its tests to the commission which in turn shall send a confidential report to the trainer and owner forthwith." Webster's dictionary defines 'forthwith' as "immediately; without delay; directly." So, if the IHRC can send a written report on a split sample to an owner and a trainer "forthwith," why can't they do the same "forthwith" for a primary test?
The easy answer is the IHRC can, but would rather control the timing of any notification. Doing so allows the IHRC staff to determine whether a trainer is a potential serial offender with a particular medication. In this situation, the IHRC purposely does not communicate a positive test when received to allow for the possibility of having a trainer accumulate multiple violations. However, at the same time, even with the trainer being responsible, the owner is accumulating more violations through no fault of his or her own. In situations like this, which do happen in Indiana, an owner should be apprised immediately (forthwith) of the activities involved with their property. This is an owner's right that the IHRC needs to recognize. We also see this delayed notification practice by the IHRC as being contrary to state law.
The purpose of medication testing in Indiana statute, as spelled out in a chapter entitled "Medication of Race Horses," is directed at the IHRC. This section is copied below:
IC 4-31-12-1
Purpose
Sec. 1. The purpose of this chapter is to protect the integrity of horse racing, to guard the health of the horse, and to safeguard the interests of the public and the racing participants through the prohibition or control of all drugs and medications or substances foreign to the natural horse.
As added by P.L.341-1989(ss), SEC.2.
If the IHRC has a concern, based upon a positive primary test, to the degree that test results are not communicated to anyone in a timely fashion, then they have failed to meet any standard as outlined in IC 4-31-12-1. While it is in the public interest to have serial offenders penalized, this tactic employed by the IHRC does nothing to protect the integrity of wagering, nor does it protect the health of the horse or safeguard any others participating in racing. This practice also inhibits an owner's opportunity to protect themselves and compromises an owner's rights to due process.
Positive tests are considered in the IHRC administrative rules to be "prima facie evidence" meaning that unless rebutted is enough evidence to prove their position. IHRC rules also place the burden of proof on a trainer to prove otherwise. With any right to due process, timeliness of a notification of a potential violation is key. Since an owner can also be penalized, an owner should have the right to investigate any possible violation as close to when the potential violation had occurred. IHRC Executive Director Joe Gorajec seems to agree with IBOP's position.
In sworn testimony in a hearing in front of an Administrative Law Judge (ALJ), Mr. Gorajec was asked by the ALJ to clarify his testimony regarding the lack of an IHRC initiated investigation in a particular situation. He said, "It's my testimony that in a case of a serious violation, that in order to collect the kind of documentation you would likely need in order to pursue a violation or charges, you would need to begin that investigation contemporaneously or near contemporaneous with the actual violation occuring." To use his term "contemporaneously," which means happening at the same time, an owner should have the right to contemporaneously investigate any possible violation regarding his or her own horse to assist with any defense. And, an owner should have the immediate right to determine if a trainer should be retained based upon the treatment of his or her horse.
Like most other racing jurisdictions, if not all other racing jurisdictions, the Indiana Horse Racing Commission (IHRC) has adopted "trainer responsibility" rules (71 IAC 5.5-3-2) whereby the trainer is responsible for the presence of a prohibited substance or a medication in excess of an allowable level. The section of the rulebook that includes all of the IHRC's medication rules is dotted with the sentiment behind the trainer responsibility rule where the presumption is that any violation for a medication overage or prohibited substance "was administered and carried in the body of the horse while participating in a race." If there's a violation, the trainer is supposedly the sole responsible party. Yet, there are consequences to the owner as well with the potential of loss of purse money, fines, and under IHRC rules be required to stable all horses participating in a race meet at the track. Under '71 IAC 5.5-2-6 Owner - positive tests' just two positive tests for a prohibited substance in a five-year period can place an owner into this IHRC requirement. So, while the trainer is responsible, the owner can be significantly penalized as well.
Through administrative rules, the IHRC has tried to tie their penalty system for both an owner and a trainer to the Association of Racing Commissioners International's (ARCI) Uniform Classification Guidelines For Foreign Substances and Recommended Penalties. The most recent version of this document can be found at the following link: http://arci.com/druglisting.pdf. If you review this document, what you will see is that there is a penalty structure for the most serious violations (Class A) to the least serious (Class C) violations. Within each classification, the severity of the penalties to an owner is significantly ramped up for a third violation in a 365-day period in any jurisdiction within an owner's entire "stable." (The term stable is not defined which opens it's meaning to interpretation.) A question that IBOP is raising with our Administrative Rule of the Month is, are the trainer's and owner's interests always the same or always aligned given the potential ARCI penalties?
Our answer is that many times, and we stress many times, the interests of the owner and the trainer are aligned. However, there are times when they may not be, and the problem we see is that the 'administrative procedures prior to split sample testing' rules treat the owner and the trainer as one entity with interests that are the same ALL the time, and that needs to be changed. Since trainers can, and do, train horses for multiple owners, a trainer's third violation within any penalty class in a 365-day period could be an owner's first violation. Conversely, owners can, and some do, have their "stable" spread out over more than one trainer and/or have trainers at multiple locations. Therefore, an owner's third violation in 365-day period, even spread over multiple trainers, could very well be the first violation for a trainer. In both these examples, the owner and the trainer are in different penalty scenarios under the ARCI model penalties. For example, a small overage of bute is a Class C penalty. The first violation for a trainer can very well be just a warning, but if its the third for the owner in a 365-day period, there is a loss of purse money which is a much more severe penalty. The first violation in this category for an owner does not include a loss of the purse.
We can think of other scenarios where an owner's interests might be different than his or her trainer's. Here's exactly how the rule reads as of today and we've highlighted a few trouble spots in bold:
71 IAC 8.5-3-3 Administrative procedures prior to split sample testing
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 3. (a) The results of all tests performed by the primary laboratory or laboratories are confidential and shall only be communicated to the commission, stewards, owner, and trainer. The trainer shall be responsible for promptly notifying the owner of a horse of a positive test as reported by the primary laboratory.
(b) The trainer or owner of a horse for which a positive result on a drug test is returned may request that the stewards submit the retained part of the specimen for testing in accordance with this section. The specimen must be tested by a laboratory that is identified on the list of approved laboratories maintained by the commission and acceptable to the following:
(1) The commission.
(2) The primary laboratory.
Laboratories providing split sample testing shall be ISO 17025 accredited unless otherwise approved by the commission. The request must be in writing and must be delivered to the stewards not later than seventy-two (72) hours after the trainer has received notice of a positive test result. Notice of a positive test result may be communicated verbally to the trainer. Failure to request testing of a split sample within seventy-two (72) hours shall constitute a waiver of the right. The split sample laboratory shall be contacted by a representative of the commission to request acceptance of a split sample. The trainer or owner may choose any laboratory on the commission maintained applicable list to test the sample. However, the commission or executive director may limit the choice of laboratory for the detection of specific drugs.
(c) The trainer or owner may elect to waive his or her right to testing of a split sample.
(d) The owner or trainer of a horse who submits a specimen for drug testing is entitled to be present or have a representative present at any time that the retained part of the specimen is prepared for storage or is tested.
(e) The owner or trainer of a horse who submits a specimen for testing to a split sample laboratory must execute a hold harmless agreement for the split sample laboratory and an agreement that the results of the split sample laboratory can be introduced as evidence in any hearing. The agreements shall remain in the hands of the stewards of the state in which the positive was reported.
(f) The trainer or owner may request that negative control samples be tested with the split sample. The identities of the negative control samples and the split sample shall be known only to the commission.
(g) The presence of a drug or drug metabolite in any quantity, excluding phenylbutazone, flunixin, ketoprofen, furosemide, or as permitted in 71 IAC 8.5-1-4.2 and 71 IAC 8.5-1-9, is sufficient for a finding of a positive test.
(Please Note: We've removed the standard History Line from the rule to save some space.)
Subsection (a) states, "The results of all tests performed by the primary laboratory or laboratories are confidential and shall only be communicated to the commission, stewards, owner, and trainer." So, the owner and the trainer are included for notification, but in reality, the next sentence places the responsibility of notifying the owner on the trainer, "The trainer shall be responsible for promptly notifying the owner of a horse of a positive test as reported by the primary laboratory." Given the IHRC's delegation of the notification to the trainer, the first sentence should read "...shall only be communicated to the commission, stewards, and trainer." While we agree that most trainers would immediately notify the owner, there is never a guarantee especially if the impact of any penalty to a trainer is minimal with an assumption that any potential penalty to the owner would be as well. Could there also be a scenario where the trainer wouldn't want the owner to know immediately? We feel that the IHRC should also notify the owner. The other concern we have is that subsection (b) states, "Notice of a positive test result may be communicated verbally to the trainer." Basically, the IHRC does not have to notify the owner of the horse of a primary positive test and has no requirement to notify anyone in writing. Providing notification in writing eliminates any potential dispute as to 'what was said to whom and when?'
IBOP is committed to petitioning the IHRC to change this rule to add a requirement that the owner of a horse and its trainer be notified in writing of a positive test for a prohibited substance or an overage of an approved medication. Given the potential consequences to both an owner and a trainer, the IHRC not being required to provide a written notification to anyone is dumbfounding. IBOP is also committed to petitioning the IHRC to require this written notification within 72 hours of the receipt of the results from their primary lab. With no specific requirement in which the IHRC is required to provide primary test results to anyone; theoretically, days, weeks and months could go by. The 72 hour notification is the same amount of time that the IHRC has given an owner or a trainer to request a split sample test when a primary test is positive. If the IHRC believes that is a reasonable time for a response, then we believe 72 hours is a reasonable timeframe for a notification. IBOP is also committed to petition the IHRC to modify subsection (c) to read "The trainer and owner may elect to waive his or her right to testing of a split sample." The sentence current reads "trainer or owner." This change would allow for both parties to be treated as having separate interests, not a combined interest.
Ironically, the IHRC through "71 IAC 8.5-3-4 Administrative procedures subsequent to split sample testing" does require that a written report from the split sample laboratory be provided to both the owner and the trainer. 71 IAC 8.5-3-4(a) reads, "The split sample laboratory shall send a confidential written report on the result of its tests to the commission which in turn shall send a confidential report to the trainer and owner forthwith." Webster's dictionary defines 'forthwith' as "immediately; without delay; directly." So, if the IHRC can send a written report on a split sample to an owner and a trainer "forthwith," why can't they do the same "forthwith" for a primary test?
The easy answer is the IHRC can, but would rather control the timing of any notification. Doing so allows the IHRC staff to determine whether a trainer is a potential serial offender with a particular medication. In this situation, the IHRC purposely does not communicate a positive test when received to allow for the possibility of having a trainer accumulate multiple violations. However, at the same time, even with the trainer being responsible, the owner is accumulating more violations through no fault of his or her own. In situations like this, which do happen in Indiana, an owner should be apprised immediately (forthwith) of the activities involved with their property. This is an owner's right that the IHRC needs to recognize. We also see this delayed notification practice by the IHRC as being contrary to state law.
The purpose of medication testing in Indiana statute, as spelled out in a chapter entitled "Medication of Race Horses," is directed at the IHRC. This section is copied below:
IC 4-31-12-1
Purpose
Sec. 1. The purpose of this chapter is to protect the integrity of horse racing, to guard the health of the horse, and to safeguard the interests of the public and the racing participants through the prohibition or control of all drugs and medications or substances foreign to the natural horse.
As added by P.L.341-1989(ss), SEC.2.
If the IHRC has a concern, based upon a positive primary test, to the degree that test results are not communicated to anyone in a timely fashion, then they have failed to meet any standard as outlined in IC 4-31-12-1. While it is in the public interest to have serial offenders penalized, this tactic employed by the IHRC does nothing to protect the integrity of wagering, nor does it protect the health of the horse or safeguard any others participating in racing. This practice also inhibits an owner's opportunity to protect themselves and compromises an owner's rights to due process.
Positive tests are considered in the IHRC administrative rules to be "prima facie evidence" meaning that unless rebutted is enough evidence to prove their position. IHRC rules also place the burden of proof on a trainer to prove otherwise. With any right to due process, timeliness of a notification of a potential violation is key. Since an owner can also be penalized, an owner should have the right to investigate any possible violation as close to when the potential violation had occurred. IHRC Executive Director Joe Gorajec seems to agree with IBOP's position.
In sworn testimony in a hearing in front of an Administrative Law Judge (ALJ), Mr. Gorajec was asked by the ALJ to clarify his testimony regarding the lack of an IHRC initiated investigation in a particular situation. He said, "It's my testimony that in a case of a serious violation, that in order to collect the kind of documentation you would likely need in order to pursue a violation or charges, you would need to begin that investigation contemporaneously or near contemporaneous with the actual violation occuring." To use his term "contemporaneously," which means happening at the same time, an owner should have the right to contemporaneously investigate any possible violation regarding his or her own horse to assist with any defense. And, an owner should have the immediate right to determine if a trainer should be retained based upon the treatment of his or her horse.
Subscribe to:
Posts (Atom)