Appeal from the Order of the Pennsylvania State Horse Racing Commission in the case of In Re: Steven R. Brown, No. 81-008K.
Thomas W. Ostrander, Duane, Morris & Heckscher, for petitioner.
John B. Hannum, Jr., with him, Gerald T. Osburn, for respondent.
Judges MacPhail, Barry and Palladino, sitting as a panel of three. Opinion by Judge Barry.
[ 92 Pa. Commw. Page 498]
This appeal stems from an order of the Pennsylvania State Horse Racing Commission (Horse Racing Commission) which upheld a ruling of the Board of Stewards at Keystone Race Track suspending petitioner, Steven Brown, for thirty days.
Mr. Brown, a licensed thoroughbred horse trainer, was suspended for running a horse, Fred 'n Ginger, in a race while it was under the influence of a prohibited foreign substance (nalbuphine hydrochloride). Post-race test samples of the horse's blood and urine revealed the presence of this drug. There was no direct or indirect evidence which indicated that Mr. Brown had any knowledge of the administration of this drug to the horse. He employed a night watchman at the Keystone Race Track stable where Fred 'n Ginger was housed; nevertheless, the horse remained unattended daily for approximately two to three hours. The investigation did reveal certain evidence which indicated that a previous employee of Mr. Brown had injected the horse with the drug prior to the race in
[ 92 Pa. Commw. Page 499]
question but no direct evidence was introduced regarding this occurrence.
The Horse Racing Commission upheld Mr. Brown's suspension because he, as trainer, was responsible for the care and custody of the horse and thus was obliged to guard against the administration of the drug to the horse. The Horse Racing Commission concluded that even though petitioner had no knowledge of who had drugged the horse, he was unable to show who did; therefore, he cannot escape the responsibility for which he is charged under the regulations.
We are required to affirm the order of the Horse Racing Commission unless it was not in accordance with law or was an arbitrary, capricious or unreasonable determination due to the absence of substantial evidence to support the findings. Johnson v. State Horse Racing Commission, 5 Pa. Commonwealth Ct. 458, 290 A.2d 277 (1972).
The Horse Racing Commission suspended Mr. Brown for violation of 58 Pa. Code 163.302(a)(1), which forbids a horse from participating in a race while carrying any substance foreign to its natural body. Under 58 Pa. Code § 163.303(b), a finding of the existence of a foreign substance in a test sample constitutes prima facie evidence that the foreign substance was administered and carried by the horse while participating in a race and the trainer responsible for the care or custody of the horse has been, had been, or may have been negligent in handling or caring for the horse. It is the trainer's responsibility to guard against the administration of drugs in accordance with 58 Pa. Code § 163.309 which states:
The owner, trainer, groom, or any other person who is charged with the custody, care, and responsibility of the horse, are all obligated to protect and ...