ALJDEC decisions subject to certification as final

08A-018-RAC · Department of Racing · 2008-11-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 5, 2008 at 1:30 p.m. APPEARANCES: The Arizona Department of Racing appeared through Blair C. Driggs, Esq., Assistant Attorney General; Licensee Shawn Talbot appeared through Ivy L. Kushner, Esq. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona Department of Racing (“ADOR”) has issued License Nos. 0720358 and 0720852 to Shawn Talbot. 2. On January 26, 2008, the mare Beau’s Valentine won the fourth race at Turf Paradise, a track located in Arizona. 3. Shawn Talbot was Beau’s Valentine’s trainer. 4. After the race, ADOR took a urine sample from Beau’s Valentine and sent it to Industrial Laboratories for analysis. Industrial Laboratories reported that the sample had 143 nanograms (“ng.”) per liter (“l.”), which was in excess of the “proposed threshold” of 55 ng./l. of the Racing Medication and Testing Consortium (“RMTC”) for fillies and mares. 5. ADOR obtained veterinary records for Beau’s Valentine, which showed that on January 25, 2008 at 7:00 a.m., veterinarian Dr. Tingdale had given testosterone to Beau’s Valentine. 6. On February 16, 2008, the ADOR stewards at Turf Paradise held a hearing, at which Mr. Talbot testified. The three stewards unanimously found that Mr. Talbot had violated A.A.C. R19-2-112(12), R19-2-112(16), and R19-2-111(A) and (C) by having the prohibited substance of testosterone in his horse Beau’s Valentine. As a result of these violations, the stewards disqualified Beau’s Valentine, redistributed the purse for the fourth race, and fined Mr. Talbot $300.00 plus a 5% surcharge for the Retired Race Horse Adoption Fund, for at total of $315.00. 7. Mr. Talbot appealed and requested a hearing on the stewards’ decision. ADOR referred the matter to the Office of Administrative Hearings, an independent state agency, and issued a Notice of Hearing in due course. 8. A hearing was held on November 5, 2008. ADOR had admitted into evidence one exhibit and presented the testimony of William J. Walsh and Violet Smith, two of the ADOR stewards at Turf Paradise, and Leslie Salmons, DVM, ADOR’s chief veterinarian. Mr. Talbot testified on his own behalf, presented the testimony of Beau’s Valentine’s veterinarian, Stephen Day, DVM, and had admitted into evidence four exhibits. Hearing Evidence 9. At the hearing, ADOR withdrew the charged violation of A.A.C. R19-2-112.[1] 10. After a race, the winners are sent to the test barn to have urine and/or blood samples taken. ADOR’s chief veterinarian supervises or takes the sample and verifies the horse’s identity. The samples are protected through the chain of custody to ensure accurate results. 11. The Association of Racing Commissioners, International, Inc. (“ARCI”) has promulgated a list of prohibited substances that agencies in charge of horse races monitor. The list includes five classes of prohibited substances: Class 1, which has no business being in a horse under any circumstances; Class 2, which has some medicinal use but cannot appear in a horse in any quantity, for example, cocaine; Classes 3, 4, and 5, which also have some medicinal use but are less potent as Class 2 substances, which also may be produced naturally by horses. 12. For Classes 3, 4, and 5 substances to be prohibited, the level at which they are found in a horse must exceed what may be present naturally. 13. ACRI’s five classes of prohibited substances include a total of 500 or 600 substances. 14. ARCI’s list that was in effect in Arizona in January 2008 did not include threshold amounts. 15. Testosterone has been on ARCI’s list since 1995. On January 26, 2008, testosterone was a Class 4 prohibited substance. 16. In the summer and fall of 2007, ADOR was circulating the proposed Model Rules of the RMTC, which is an adjunct of ARCI, to horsemen’s groups. A list of the thresholds for various drugs that ADOR distributed to horsemen on November 8, 2007 did not include a threshold for testosterone. 17. Testosterone is a substance that all horses, even mares and fillies, produce naturally. After the ADOR stewards received Industrial Laboratory’s result of its testing of Beau’s Valentine’s urine, Mr. Walsh and Ms. Smith contacted Dr. Salmons, the Minnesota Chief veterinarian, and several other people to determine what the result of 143 ng./l. meant. They determined that the level grossly exceeded the level that could be expected to occur naturally in a mare. 18. Pursuant to its contract with ADOR, Industrial Laboratories tests samples for prohibited substances by two methods: thin layer chromatography, which picks up lots of substances but is not sensitive to amount, and ELIZAs,[2] which do not identify a range of prohibited substances but are sensitive to the amount in the sample. There is a specific ELIZA for anabolic steroids like testosterone. 19. There are more than 100 ELIZA tests. Pursuant to its contract with ADOR, Industrial Laboratory conducts 4 or 5 ELIZA tests of each sample. Industrial Laboratory rotates the specific tests randomly and according to what prohibited substances are currently being found in racing results in the industry. 20. Dr. Salmons testified that, after he received Industrial Laboratory’s results for Beau’s Valentine, he requested that the blood sample be analyzed. The plasma taken on January 26, 2008 did not show an excess level of testosterone. 21. Dr. Salmons admitted that a high level of a drug in the urine sample but not in the blood showed that the horse had excreted the substance and it could not have affected performance. Dr. Day echoed this testimony. 22. At the stewards’ hearing, Mr. Talbot admitted that he requested that Beau’s Valentine be injected with aqueous testosterone to make her more aggressive, so that she would not hesitate to “go for the spot” between other horses. 23. Dr. Day is Dr. Tingdale’s boss at Rio Verde Equine, Inc. Over the past 13 years, he has routinely injected horses with testosterone at their trainer’s request. Some of these horses, including Beau’s Valentine on January 5, 2008, have won the races and been tested. He has never before had a horse disqualified for excessive testosterone. 24. Dr. Day testified that treating horses with anabolic steroids the day before the race has been a common practice among horseman. ADOR never informed horseman of its change in policy regarding anabolic steroids. In his opinion, the threshold levels are arbitrary. 25. Mr. Talbot testified that his share of the purse for the fourth race at Turf Paradise on January 26, 2008 was $6,300. The total purse was $10,500. 26. Mr. Talbot asked the stewards at the hearing if he could administer testosterone to a horse within 48 hours of a race. They could not tell him. Before January 26, 2008, he was not aware of any limitation on the administration of testosterone to horses. There was nothing posted at ADOR’s website saying that testosterone was banned above a threshold level. 27. On March 1, 2008, ADOR adopted the Model Rules, which include threshold levels for prohibited substances. The threshold level for testosterone in a mare or filly is 55 ng./l. Testosterone is now a Class 3 prohibited substance. 28. Dr. Day and Mr. Talbot do not use testosterone on race horses any more. Beau’s Valentine is still winning races with faster horses, without testosterone. CONCLUSIONS OF LAW These matters lie within the Department’s jurisdiction.[3] The parties disputed who bore the burden of proof. However, for purposes of this hearing only, the parties stipulated that ADOR should bear the burden of proof to establish cause to disqualify Beau’s Valentine and fine Mr. Talbot by a preponderance of the evidence.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] As a trainer licensed by ADOR, Mr. Talbot is required to know and follow applicable rules governing racing in Arizona.[6] As the trainer responsible for Beau’s Valentine, Mr. Talbot was responsible for her condition and required to protect her from acts of other parties.[7] Mr. Talbot did not argue that testosterone was not a Class 4 prohibited substance on ARCI’s list on January 26, 2008. He did not present any evidence that the amount of testosterone that occurs naturally in a mare like Beau’s Valentine substantially exceeds 55 ng./l. He only argued that ADOR had never before enforced the prohibition to his knowledge. Previous lack of enforcement does not bar or estop ADOR from enforcing a prohibition that Mr. Talbot is deemed to be aware of.[8] Because Mr. Talbot is required to know ADOR’s rules, he is presumed to have known when he had instructed Dr. Day to inject Beau’s Valentine with testosterone that he was instructing that she be administered a foreign substance, in an amount far in excess of what occurred naturally in mares. If he had any doubt, he could have ascertained whether testosterone was among the prohibited substances on ACRI’s list. A.A.C. R19-2-112(16) includes as a prohibited act: The trainer . . . is required to protect and guard the horse against the administration, either internally or externally, of any foreign substance. A positive test indicating the presence of a foreign substance . . . creates the presumption of failure to meet the duty imposed by this rule.

There is no requirement in the regulation that the foreign substance must potentially or actually enhance performance. ADOR has borne is burden to establish that Mr. Talbot violated A.A.C. R19-2- 112(16). The $300 fine (plus 5% surcharge for the Retired Race Horse Adoption Fund) that the stewards imposed for this violation was not excessive. The forfeiture of the purse is within the stewards’ regulatory authority.[9] RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director of ADOR affirm the stewards’ disqualification of Beau’s Valentine from the fourth race at Turf Paradise on January 26, 2008 and imposition of a fine in the amount of $300.00 (plus a 5% surcharge for the Retired Race Horse Adoption Fund) against Mr. Talbot. Done this day, November 18, 2008.

______________________________________ Diane Mihalsky Administrative Law Judge Original transmitted by mail this ____ day of November, 2008, to: Arizona Department of Racing Geoffrey Gonsher, Director 1110 W. Washington St., Suite 260 Phoenix, AZ 85007

By ___________________________ ----------------------- [1] This regulation includes among prohibited acts that “a person shall not administer or cause to be administered a foreign substance, internally or externally, to a horse entered in a race, prior to the race on the calendar day in which the horse is to run . . . .” As noted above, there is no evidence that Mr. Talbot had anyone administer testosterone to Beau’s Valentine on January 26, 2008, the day of the fourth race at Turf Paradise. [2] The Administrative Law Judge assumes that ELIZA is an acronym. However, the record does not reflect what it stands for. [3] See A.R.S. § 5-104(A) and (T). [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] See A.A.C. R19-2-111(A). [7] See A.A.C. R19-2-111(C). [8] See Carlson v. Arizona Department of Economic Security, 184 Ariz. 4, 6, 906 P.2d 61, 63 (App. 1995) (“In cases where the state's actions involved mere negligence or oversight, the courts have refused to apply equitable estoppel,” citing Outdoor Systems, Inc. v. Arizona Dept. of Transp., 171 Ariz. 263, 830 P.2d 475 (App. 1992) (finding that the state agency's inadvertent issuance of three nonconforming sign permits and failure to notice the error for two years did not amount to wrongful conduct which would give rise to equitable estoppel); Mohave County v. Mohave-Kingman Estates, Inc., 120 Ariz. 417, 586 P.2d 978 (1978) (county's failure to immediately enforce the terms of a land sale contract upon the purchaser's breach did not equitably estop it from later suing the purchaser); Graham v. Asbury, 112 Ariz. 184, 540 P.2d 656 (1975) (state was not estopped from seeking overpayment of salary to an employee because more than one year delay in suing was not intentional and did not constitute culpable negligence))). [9] See A.A.C. R19-2-112(16).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826