decided: October 17, 1983.
BURTON K. SIPP, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, STATE HORSE RACING COMMISSION, RESPONDENT
Appeal from the Order of the Pennsylvania State Horse Racing Commission in case of In Re: Burton K. Sipp, No. 79-069.
Joel Weisberg, with him Edward J. Holden, for petitioner.
Gerald T. Osburn, with him Victor S. Jaczun, Special Counsel, for respondent.
President Judge Crumlish, Jr. and Judges Barry and Blatt, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
[ 77 Pa. Commw. Page 562]
Burton Sipp appeals an order of the State Horse Racing Commission (Commission) which suspended his racing privileges for sixty days and imposed a fine of $1,000.
Sipp was the trainer of the horse "Katayeff." Lidocaine*fn1 was found in a urine analysis. Lidocaine is a local anesthetic not naturally found in horses.
Following a Commission hearing, an order was entered suspending Sipp for sixty days and imposing a $250 fine. A rehearing was held eight months later.
Section 163.302 of Title 58 of the Pennsylvania Code provides, in pertinent part:
It shall be the intent . . . of this title . . . to protect the integrity of horse racing . . . and to safeguard the interests of the public and the racing participants. . . . In this context:
[ 77 Pa. Commw. Page 563]
(1) No horse participating in a race shall carry in its body any substance foreign to the natural horse. . . .
Section 163.303 of Title 58 of the Pennsylvania Code provides, in pertinent part:
(b) A finding by the Chemist that a foreign substance is present in the test sample shall be prima facie evidence that such foreign substance was administered and carried in the body of the horse while participating in a race . . . [and] that the trainer . . . of the horse . . . may have been negligent in the handling or care of the horse. (Emphasis deleted.)
The trainer has a positive duty to protect his horses from the administration of any prohibited drug. Bellucci v. State Horse Racing Commission, 66 Pa. Commonwealth Ct. 631, 637, 445 A.2d 865, 869 (1982).
Sipp argues that the weight of the evidence does not support a finding of responsibility.*fn2 He asserts that no evidence was introduced to contradict his contention that the lidocaine was administered, as part of a treatment for an abcessed foot,*fn3 seven days earlier
[ 77 Pa. Commw. Page 564]
under a veterinarian's order. This argument is without merit.
The Commission found that the drug lidocaine is a fairly rapidly metabolizing drug*fn4 and that the lidocaine found in this animal was in a non-metabolized state. Considering this evidence, the Commission concluded that lidocaine was most likely applied to the horse within twenty-four hours of the race.
In Hacker v. Pennsylvania Horse Racing Commission, 46 Pa. Commonwealth Ct. 263, 405 A.2d 1379 (1979), we said that the purpose of the Commission's promulgation of the rule prohibiting the presence of any foreign substance
was to eliminate any of the prohibited drugs in order to ensure the integrity of the race and the confidence of the public in the fairness of races. Thus, it is not the quantity or type of the drug . . . that is relevant . . . rather it is the presence of any drug that is sought to be avoided.
Id. at 266, 405 A.2d at 1381.
We hold that the imposition of liability was proper.
Sipp further argues that a failure to have presented to the Commission a confiscated "trainer's chart" was denial of due process. This contention is also without merit. Subpoenas were issued to the Commission and local track officials ordering the production of the chart, but written statements were received acknowledging that the chart had been lost.*fn5
[ 77 Pa. Commw. Page 565]
Lastly, Sipp argues that the penalty imposed is excessive. At rehearing, the Commission concluded that additional evidence had demonstrated, more clearly, Sipp's culpability, justifying a severe penalty.*fn6 The Commission has not abused its discretion in imposing a greater penalty after considering the additional evidence that the horse had received a much higher dosage of the medication within a much more proximate time than has been claimed.
The order of the Pennsylvania State Horse Racing Commission, No. 79-069, dated March 23, 1981, is hereby affirmed.