IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY JOSEPH P. DUGAN, JR., Appellant, v. DELAWARE HARNESS RACING COMMISSION, Appellee. Submitted March 22, 2006 Decided ORDER Upon Appeal of the Decision of the Delaware Harness Racing Commission. Granted and Remanded. William W. Erhart, Esquire of William W. Erhart, P.A., Wilmington, Delaware and Howard A. Taylor, Esquire, pro hac vice, Law Office of Jerome Taylor, Philadelphia, Pennsylvania; attorneys for the Appellant. Philip H. Bangle, Esquire of Delaware Department of Justice, Wilmington, Delaware; attorneys for the Appellee. WITHAM, R.J.
Appellant, Joseph Dugan ( Mr. Dugan ), filed an appeal with this Court from the July 28, 2005 Decision and Order ( Decision ) of the Delaware Harness Racing Commission (the Commission ). That Decision concluded that Mr. Dugan violated Commission Rules 8.9.14 1 and 8.5.2 2 and, therefore, imposed a penalty of a nine month suspension and a $3,000 fine. Among other things, Mr. Dugan argued that the Commission committed legal error by failing to follow its own regulations, namely Rule 8.9.15.2, 3 and by ignoring the prejudice to him when a subpoenaed witness failed to appear at the hearing. In response, the State contended that Mr. Dugan was seizing on a purported ambiguity in Rule 8.9.15.2, but the Commission had interpreted the rule to require only a single blood draw. The State also asserted that it was Mr. Dugan s decision to proceed without the witness, so it was not a mitigating circumstance. The salient facts are as follows On April 26, 2005, Mr. Dugan entered a horse, Royal Rip, in the eleventh race at the Harrington Raceway. Royal Rip was selected 1 Rule 8.9.14 states, In addition to the provisions of Rule 8.3 and unless otherwise permitted by these Rules, no foreign substance shall be carried in the body of a horse when the horse is on the grounds of the licensed racetrack; it shall be a violation of this rule for a horse to test positive in a pre-race test result using a blood gas analyzer or other testing equipment. 2 Rule 8.5.2 provides, A trainer shall prevent the administration of any drug or medication or other foreign substance that may cause a violation of these rules. 3 Rule 8.9.15.2 reads, in pertinent part, A commission representative will notify the trainer or licensed designee and the horse in question shall be immediately retested. In the event that a second blood gas analyzer test is necessary, the Commission Veterinarian or his designee will take a rectal temperature of said horse. The horse s temperature will be recorded on the veterinarian s control sheet. 2
for pre-race blood testing, so at 641 p.m., two vials of blood were taken from the horse. The first vial was tested on the Radiometer ABL 700 series by technician Richard Carroll ( Mr. Carroll ) and found to have an elevated blood gas reading of 13.6. 4 As a result, the horse s temperature was taken by Dr. Theresa Kothstein ( Dr. Kothstein) and the blood was retested from the first vial, which resulted in a blood gas reading of 13.7. Based on the results, Royal Rip was not permitted to compete in the race. The second vial was then sent to the University of Pennsylvania New Bolton Center ( New Bolton ) for testing. The New Bolton test resulted in a blood gas reading of 14.6. Consequently, on May 3, 2005, a hearing was conducted by the Board of Judges ( Judges ) at Harrington Raceway. The Judges concluded that Mr. Dugan was in violation of Commission Rules 8.9.14 and 8.5.2. Thus, Mr. Dugan was suspended from racing for nine months and fined $3,000. Mr. Dugan appealed the Judges decision and requested a stay of the suspension. The appeal was granted; however, the stay was denied. The appeal was heard by the Commission on May 18, 2005. At the start of the hearing, counsel and the Commission noted that Dr. Kothstein did not appear, even though she was subpoenaed. However, Mr. Dugan decided to proceed with the hearing because his stay had been denied and he did not wish to wait for a new hearing while his suspension was running. After the trial, the Commission issued its 4 The permissible blood gas level is 12.4. 3
decision and order imposing the same penalty that the Judges had ordered. 5 For the reasons set forth below, Mr. Dugan s Appeal from the Decision of the Commission is granted. Standard of Review This Court reviews a Commission s decision to determine whether the factual findings are supported by substantial evidence and are free from legal error. 6 Substantial evidence equates to such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 7 The Commission s decision will be affirmed if there is no abuse of discretion. 8 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. 9 Discussion This Court understands the need to defer to the Commission s interpretation of its own rules. However, in the case sub judice, the Commission never considered 5 The nine month suspension and $3,000 fine was the minimum penalty permissible under Commission Rule 8.3.2.2. 6 Hochstetler v. Delaware Harness Racing Comm n, 2003 Del. Super. LEXIS 68, at *5. 7 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Federal Mar. Comm n, 383 U.S. 607, 620 (1966)). 8 Hochstetler, 2003 Del. Super. LEXIS 68, at *5. 9 Id. 4
whether the language of Rule 8.9.15.2 requires the horse to be retested, or the blood sample already taken to be retested. 10 Thus, there is no interpretation to defer to in this case. As it appears that Rule 8.9.15.2 and its interpretation by the Commission is relevant to this case, the matter will be remanded to the Commission for further findings regarding Rule 8.9.15.2. Additionally, it is troubling to this Court that Dr. Kothstein, a veterinarian for the Commission, was subpoenaed, yet failed to appear at trial. Therefore, a new trial should be conducted where Mr. Dugan has an opportunity to question Dr. Kothstein. Based on the foregoing, Mr. Dugan s Appeal from the Decision of the Commission is granted and the matter remanded for further proceedings and findings. IT IS SO ORDERED. WLW/dmh oc Prothonotary xc Order Distribution /s/ William L. Witham, Jr. Resident Judge 10 Additionally, this Court could find no case law wherein the interpretation of Rule 8.9.15.2 was discussed. Therefore, this Court would like the Commission to interpret the rule in its decision so the interpretation is on the record. 5