Appeal from the Order of the Pennsylvania Horse Racing Commission in case of In Re: Loren G. Cox, No. 81-057.
C. Lee Anderson, for petitioner.
John B. Hannum, Jr., with him Gerald T. Osburn, for respondent.
Judges Craig, MacPhail and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.
[ 77 Pa. Commw. Page 445]
This is an appeal from an order of the Pennsylvania Horse Racing Commission (Commission) modifying a penalty that had been imposed by the Board of Stewards (Board) of the Penn National Race Track against Loren G. Cox, the owner of a horse named "Cool Miss," for an infraction of 58 Pa. Code § 163.304(2).*fn1 We will reverse and remand.
[ 77 Pa. Commw. Page 446]
Following her first place finish in the sixth race at Penn National Race Track on March 13, 1981, Cool Miss was subjected to a blood test, and the results of this test established that she had had an impermissible level of the drug phenylbutazine in her system. Based on this evidence, the Board, pursuant to the provisions of 58 Pa. Code § 163.340 and 58 Pa. Code § 163.303(c): (1) suspended Cool Miss' owner from racing for fifteen days, (2) disqualified Cool Miss from the March 13, 1981 race, and (3) required Cool Miss' owner to forfeit the purse money. Cool Miss' owner then appealed this decision to the Commission. Following a hearing on the matter, the Commission modified the penalty imposed by the Board to a simple $400.00 fine. William B. Bush, M.D., the owner of the horse that placed second to Cool Miss at the March 13, 1981 race, then brought the present appeal.
Before this Court, Dr. Bush asserts that the Commission had no authority to rescind that portion of the Board's order requiring the forfeiture of the purse. We agree.
Although 58 Pa. Code § 163.303(c) was amended after the date of the race at Penn National Race Track to read that "[a] finding . . . of a foreign substance or an approved substance used in violation of §§ 160.302-160.308 of this title (relating to illegal practices) in any test sample of a horse participating in a race may result in the horse being disqualified from purse money" (emphasis added); at the time of the March 13, 1981 race 58 Pa. Code § 163.303(c) provided that a finding of an impermissible level of a substance in a test sample of a horse participating in a race " shall result in the horse being disqualified from purse money. . . ." (Emphasis added.) In its brief to this Court, however, the Commission alleges that it was not required to order the forfeiture of the purse since (1) the amendment to 58 Pa. Code § 163.303(c)
[ 77 Pa. Commw. Page 447]
had a retroactive effect, or, in the alternative (2) the provisions of 58 Pa. Code § 163.303(c) were superseded by the provisions of 58 Pa. Code § 163.342(k) which reads in its entirety as follows:
(k) In case of suspension or fine by the Stewards of owners, trainers, or any other persons holding an occupational or participational license, a final order may be entered by the Commission, which may either sustain the ruling of the Stewards, increase the penalty, reinstate said offender, or ...