Opinion
C.A. No: 06A-01-007 RBY.
Submitted: May 10, 2006.
Decided: August 22, 2006.
UPON CONSIDERATION OF APPELLANT'S APPEAL FROM THE DECISION OF THE DELAWARE HARNESS RACING COMMISSION
AFFIRMEDWilliam W. Erhart, Esq., Wilmington Delaware and Howard A. Taylor, Esq., Law Offices of Jerome Taylor, Philadelphia, Pennsylvania, pro hac vice, for Appellant.
Patricia A. Murphy, Esq., Deputy Attorney General, Wilmington, Delaware for Appellee.
OPINION
Appellant, Donald Eastburn, appeals the decision of the Delaware Harness Racing Commission, affirming the decision of the Board of Judges at Harrington Raceway to suspend Eastburn from racing for nine months, and impose a $3,000 fine for violating Harness Racing Regulations. For the following reasons, the decision of the Commission is AFFIRMED.
BACKGROUND
Under the rules of the Delaware Harness Racing Commission ("Commission"), a trainer of a race horse is prohibited from administering drugs or any other substances prohibited by the Harness Racing Rules and Regulations. Random pre-race testing for prohibited substances may be conducted at any time. Selected horses are taken to a detention area, where the Commission Veterinarian or his assistant collects two blood samples, which are designated as the "primary" and "secondary" samples.The primary blood sample is tested with a blood gas analyzer, or similar equipment, for excess levels of carbon dioxide. If the primary sample tests positive for a prohibited level of carbon dioxide, then the primary sample is retested immediately, and the Commission veterinarian will record the horse's rectal temperature. The second sample is transported to the Commission laboratory for confirmatory testing. The licensee of the race horse does not have the right to conduct his own test of the secondary sample. Once the secondary sample is confirmed by the official Commission laboratory, the test results are prima facie evidence that the horse was given a prohibited substance. Although the licensee of the race horse does not have the right to test the secondary sample, the owner or trainer of the horse may request, at his own expense, that the horse be quarantined, and retested.
Rule 8.9.1.
Rule 8.9.14.2.1.
Rule 8.4.3.5.10.
Rule 8.9.15.
Rule 8.9.15.
Rule 8.10.1.
FACTS
On May 12, 2005, Appellant, Donald Eastburn, was the trainer of the horse, Tulsa Engaged, which was scheduled to race at Harrington Raceway that evening. Prior to the race, the Commission veterinarian took two vials of blood from Tulsa Engaged for routine testing. One of these tests measured carbon dioxide levels by using a base excess testing protocol. Under the Harness Racing Rules and Regulations, the acceptable base excess concentration is 10.4 mmol/l (mEq/l). The results of the three tests performed for Tulsa Engaged revealed unacceptable concentrations, measuring between 10.6 to 10.9. Based on the abnormal base excess concentrations, Tulsa Engaged was scratched from the race. Eastburn did not choose to quarantine, and retest the horse.The second sample of blood was sent to the University of Pennsylvania's New Bolton Center by Commission investigator, Fran Swift. The tests performed at the New Bolton Center also yielded an unacceptable level of 10.6.
PROCEDURAL HISTORY
A hearing before the Board of Judges at Harrington Raceway ("Judges") was convened on May 21, 2005 regarding the incident. The Judges held that Eastburn violated Commission Rules 8.9.14 and 8.5.2, and suspended him from racing for nine (9) months. In addition, Eastburn was assessed a $3,000 fine.
Eastburn appealed the Judges' decision to the Commission, which convened a hearing on June 7, 2005. The Commission heard testimony from Eastburn and Commission officials, including Richard Carroll, veterinary technician; Dr. Lawrence R. Soma, veterinarian; Allen Cook, Presiding Judge; John F. Wayne, Administrator of Racing; and Francis Swift, Inspector. The Commission considered Eastburn's arguments that the testing equipment was not operated correctly; the test results were not conclusive; the testing was contaminated; and the proper testing procedures were not followed. During the course of the hearing, Eastburn, who represented himself, pro se, was given the opportunity to present evidence, and examine witnesses. Ultimately, the Commission concluded that Eastburn did not present substantial evidence to rebut the prima facie evidence of the positive findings, and affirmed the Judges' ruling.
In re: Donald W. Eastburn, ADH 5-2-149 (July 28, 2005).
Id.
Id. at 14.
On December 13, 2005, the Commission convened a hearing to reconsider Eastburn's suspension. At the first hearing, Eastburn complained that the Commission did not produce requested documents until the morning of the hearing. Eastburn argued that he was denied due process, because he was not afforded the opportunity to review the documents in support of his appeal. The second hearing was held to provide Eastburn an opportunity to present any additional evidence that he was unable to present at the first hearing. In addition, Eastburn was represented by counsel at the second hearing. The parties presented oral argument at the hearing on reargument, but no live witnesses testified.
In re: Donald Eastburn, ADH 5-2-157 (January 17, 2006).
The Commission considered Eastburn's extensive technical arguments about alleged discrepancies in the test results, including errors in the recorded dates and times. The Commission also considered Eastburn's legal argument about the provisions of Rule 8.9.15.2.1, which require the horse to be retested upon a positive finding of a prohibited substance. Eastburn argued that the rule required a new blood sample to be drawn from the horse and retested. Eastburn maintained that the second tests performed on Tulsa Engaged did not conform to the rule, because the Commission officials retested the primary blood sample, and not a new sample.
Again, the Commission held that Eastburn had failed to rebut the prima facie findings of the test results. The Commission was satisfied that the witnesses' testimony in the first hearing supported the test results. The Commission also disagreed with Eastburn's interpretation of Rule 8.9.15.2.1, and held that the rule only required the primary sample to be retested.
Id. at 4.
The Commission upheld Eastburn's suspension and fine. Subsequently, Eastburn brought the present appeal.
STANDARD OF REVIEW
On appeal, this Court reviews a decision of the Delaware Harness Racing Commission to determine whether the Commission's factual findings are supported by substantial evidence and are free from legal error. On appeal, this Court does not have the "authority to weigh evidence, determine the credibility of witnesses or make independent factual findings." Generally, a decision of the Commission will be affirmed absent an abuse of discretion. "When reviewing an administrative agency's interpretation of regulatory provisions, this Court will defer to the construction placed by the administrative agency on regulations promulgated and enforced by it, unless shown to be clearly erroneous.
Hochstetler v. Delaware Harness Racing Com'n, 2003 WL 549181, at *2 (Del.Super.) ( citing Baxter v. Delaware Harness Racing Comm'n, 2001 WL 167849 (Del.Super.)).
State v. Dalton, 878 A.2d 451, 454 (Del. 2005) ( citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
Hochstetler, 2003 WL 549181, at *2 ( citing State Dep't of Labor v. Medical Placement Services, Inc., 457 A.2d 382, 383 (Del.Super. 1982); aff'd at 467 A.2d 454 (Del. 1983)).
Hochstetler, 2003 WL 549181, at *2 ( citing Public Water Supply Co. v. DiPasquale, 735 A.2d 378, 383 fn 9 Cf. Nationwide Mutual Ins. Co. v. Krongold, 318 A.2d 606,609 (Del. 1974), citing Connell v. Delaware Aircraft Indus., 55 A.2d 637 (Del.Super.Ct. 1947).
DISCUSSION
Eastburn complains that the Commission committed legal error by failing to follow its own regulations for conducting random pre-race testing, and the procedures required when a blood sample yields an abnormal result. Eastburn claims that the Commission did not comply with Rule 8.9.15.2.1, which requires that the horse be retested immediately. Eastburn's position that Tulsa Engaged was not retested is based on the argument that the horse, not the primary sample, must be retested. Eastburn argues that a new sample of blood should have been taken from the horse, and retested to ensure that the original test was not contaminated.The Commission considered, but rejected, this argument, in both its July 28, 2005 decision and January 17, 2006 reconsideration. The Commission held that Rule 8.9.15.2.1 does not require a second blood draw be taken for a re-test. "It has long been the policy at the tracks that if the primary sample tested high, the sample would be retested and if it agin came back high, the secondary sample would be sent to the New Bolton Center for confirmation."
In re: Donald Eastburn, ADH 5-2-157 (January 17, 2006), at 4.
Contrary to Eastburn's argument, the Commission is concerned with the likelihood of contamination, not by the Commission officials, but by the trainers. The Commission noted that the veterinarians do not take a second blood sample, because in the period after the first sample is taken, the horse is left unsupervised with its trainer. The Commission's procedures reflect the possibility that a trainer may inject the horse with an agent to counteract the high carbon dioxide reading.
Id.
Id. at 5.
In the interim, the Commission has clarified Rule 8.9.15.2.1, and issued a modified regulation, which provides "[a] commission representative will notify the trainer or licensed designee and the primary blood sample of the horse in question shall be immediately retested." In its Order, finalizing the modified Rule 8.9.15.2.1, the Commission indicated that the change was made to clarify "the procedures currently in place at the track, and brings the written rule in line with the original intent of the testing procedure."
Proposed version published in Delaware Register of Regulations, vol. 9, issue 7, January 1, 2006 (emphasis in original). Final regulation, published in Delaware Register of Regulations, vol. 9, issue 9, March 1, 2006, became effective as of March 11, 2006.
Vol. 9 Del. Reg. Regs. p. 1368 (March 1, 2006).
The Commission's interpretation of its own regulations, evidenced in the decisions below, and in the promulgation of the modified version of Rule 8.9.15.2.1, demonstrates that blood does not have to be redrawn from the horse when the initial test results are abnormal. It is sufficient for a second test to be performed using the primary sample of blood. This Court defers to the Commission's interpretation of Rule 8.9.15.2.1. Accordingly, the Commission did not err in deciding that the subsequent tests performed on the primary sample of blood drawn from Tulsa Engaged complied with the procedures set forth in Rule 8.9.15.2.1.
The balance of Eastburn's arguments, although framed as legal arguments, are actually factual disputes about the Commission's findings. Eastburn argues that the Commission failed to consider evidence that the test records were altered, and that the tests were contaminated. Eastburn goes to great lengths to point out inconsistencies between the testimony of Commission lab technician, Richard Carroll, who performed the tests at the racetrack, and the documented evidence. Eastburn also claims that the Commission did not consider the notation made by Dr. Soma, which raised the possibility of room air contamination.
The record demonstrates that there is substantial evidence to support a finding that Eastburn violated Rules 8.9.14 and 8.5.12, when Tulsa Engaged tested positive for excess levels of carbon dioxide. The Commission officials performed three tests using the blood gas analyzer, as required by the regulations. All the tests yielded positive findings. The secondary sample was sent to the University of Pennsylvania New Bolton Center for separate testing. The test of that sample was also positive for excess carbon dioxide, which constituted prima facie evidence that Tulsa Engaged was administered a prohibited substance.
The Commission considered all of Eastburn's extensive factual arguments about the manner in which the testing was performed, possible data manipulation, and Dr. Soma's notation about possible contamination. After hearing testimony from numerous Commission officials, the Commission found that Eastburn could not support any of these arguments with evidence to overcome the prima facie finding that the horse's carbon dioxide levels were abnormal.
In re: Donald W. Eastburn, ADH 5-2-149 (July 28, 2005); In re: Donald Eastburn, ADH 5-2-157 (January 17, 2006).
The Commission also accepted Dr. Soma's testimony, dismissing the notation about possible oxygen contamination. Dr. Soma explained that the contamination with room air during the collection of the specimen had no bearing on the base excess level measurement, as they are independent measurements. Evaluating evidence and the credibility of witnesses is with the province of the Commission, which heard the evidence. This Court is satisfied with the Commission's factual findings, and will not disturb them.
In re: Donald W. Eastburn, ADH 5-2-149 (July 28, 2005), at 15.
Barton v. Innolink Systems, Inc., 2004 WL 1284203, at *1 (Del.Super.).
Finally, Eastburn argues that he was denied procedural due process, because he did not receive any of the documentation he requested until the day of the first hearing on June 7, 2005. In an administrative hearing, due process does not require formal discovery. "Due process requires that the notice inform the party of the time, place, and date of the hearing and the subject matter of the proceedings." In this case, Eastburn was given notice of the hearing, and knew the charges weighed against him. The Commission's production of documents on the day of the hearing was not a denial of due process. Moreover, the Commission gave Eastburn an opportunity to present additional arguments formulated from those documents at the reconsideration hearing. Therefore, the late production of documents was not a denial of Eastburn's due process rights.
Matter of Gresick, 1988 WL 116411, at *5 (Del.Super.).
Id. ( citing J.L.B. Corp. v. Delaware A.B.C.C., Del.Super., C.A. No. 83A-NO-13, Ridgely, J. (June 7, 1985); Joyce Fretz v. Unemployment Ins. Board, Del.Super., C.A. No. 83A-MY-2, Bush, J. (February 1, 1984)).
Finally, Eastburn argues that his due process rights were violated, because he did not have the opportunity to cross-examine witnesses at the second hearing. Eastburn's argument is not persuasive. Eastburn's due process rights were satisfied after the first hearing, at which time he was given the opportunity to cross-examine witnesses. The Commission's reconsideration of Eastburn's appeal was not required, but granted as a gratuitous gesture. Therefore, Eastburn was not denied due process, because the Commission was not obligated to provide Eastburn with a second opportunity for a full hearing with live testimony.
CONCLUSION
After reviewing the record, this Court is satisfied that the Delaware Harness Racing Commission did not err in its decision that Appellant, Donald Eastburn, violated the Harness Racing Regulations. Accordingly, the Commission's decision is AFFIRMED.