Agilar v. Louisiana State Racing Commission

116 So. 3d 1029, 13 La.App. 3 Cir. 144, 2013 WL 3013885, 2013 La. App. LEXIS 1227
CourtLouisiana Court of Appeal
DecidedJune 19, 2013
DocketNo. 13-144
StatusPublished

This text of 116 So. 3d 1029 (Agilar v. Louisiana State Racing Commission) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Agilar v. Louisiana State Racing Commission, 116 So. 3d 1029, 13 La.App. 3 Cir. 144, 2013 WL 3013885, 2013 La. App. LEXIS 1227 (La. Ct. App. 2013).

Opinion

GREMILLION, Judge.

hMr. Anthony Agilar, a licensed horse trainer, appeals the adverse ruling of the trial court in its judicial review of his suspension by the Louisiana State Racing Commission. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 16, 2012, Bad John, a horse trained by Agilar, was entered in a race at Evangeline Downs. Bad John won that race and was escorted to the test barn for blood and urine sampling. Those samples were submitted to the Louisiana State University Veterinary School for analysis, which detected the presence of dermor-phin, an opioid found in the skins of certain South American frogs. Split sample testing also detected dermorphin. A hearing before the Evangeline Downs stewards resulted in a six-month suspension for Agi-lar, and his case was referred by the stewards to the Louisiana State Racing Commission.

On May 31, 2012, another of Agilar’s horses, LaPile Creek, ran and won at Evangeline Downs. LaPile Creek tested positive for dermorphin following its win. Agilar testified before the racing commission that he did not exercise his right to test LaPile Creek’s split sample “because I know the horse had the medicine in it[.]” LaPile Creek had run before Bad John’s split sample had been tested.

Agilar’s veterinarian, Dr. Kyle Hebert, or his associate, Dr. Stephanie Frauning, administered what they told Agilar were herbal remedies. Agilar blamed Dr. Hebert or Dr. Frauning for administering the [1031]*1031dermorphin. Indeed, Agilar testified that Dr. Hebert told him that the substance he was giving the horses was “just a natural herb that can’t be detected.” He further likened its effects to that of Equipoise, a formerly permitted drug.

|2The Louisiana State Racing Commission heard two days of testimony and argument in several cases, all of which involved actions against trainers over the alleged use of dermorphin. During Agi-lar’s hearing, the commission’s attorney began to question the LSU Veterinarian School tester, Dr. Steven Barker. Agilar said that he had no questions about the testing and verbally stipulated to its accuracy. Agilar had already entered into written stipulations regarding the chain of custody of Bad John’s and LaPile Creek’s samples.

Decisions in the cases were rendered by the commission after all cases had been heard. The commission handed down a three-year suspension and fine to Agilar, who sought judicial review before the Twenty-seventh Judicial District Court. Agilar’s case was consolidated for review with that of Kyi Lormand, whose matter has also been consolidated with Agilar’s on appeal. The trial court affirmed the commission’s decision. This appeal followed.

ASSIGNMENTS OF ERROR

Agilar assigns the following as errors of the trial court:

1. That the Trial Court found that the altered record filed by the Commission with the Trial Court was “the complete record of the proceeding” as required and contemplated by La[.] R.S. 49:964;
2. That the Trial Court found that the Commission may introduce and rely upon evidence admitted at the Commission proceeding but may omit and withhold the same evidence regarding Dermorphin from the “entire record” required for judicial review, including the basis for stipulations, relevant scientific evidence, relevant testimony, and exculpatory documentary evidence when such evidence affects substantial rights of the Appellants;
3. That the Trial Court found that the stipulations made by Appellants for purposes of the agency hearing may function to render incompetent evidence competent for purposes of Judicial Review;
4. The Trial Court did not disregard the purported stipulations as incompetent evidence despite the fact that the stipulations were not properly identified, marked and filed into the record;
|s5. That the Trial Court denied Appellants’ Motion to Strike the record as in violation of La R.S. 49:964;
6. That the Trial Court allowed the Commission to modify, alter, re-create, withhold and manipulate the Record submitted to the Trial Court such that it was unfairly and prejudicially different from the true record of the proceeding;
7. That the Commission complied with the mandate that the Commission allow the parties to choose from a list of referee laboratories and that substantial rights of the Appellants were not thereby prejudiced;
8. That the Trial Court found that substantial rights of the Appellants were not unfairly prejudiced by the Commission’s failure, prior to the hearing, to make available and provide actual notice of the evidence to be used against Appellants, particularly when incorporated by reference to other evidence not provided nor made available to Appellants;
9. That the Trial Court was not required to disregard incompetent evidence in its review of the agency record, [1032]*1032including purported scientific evidence which does not satisfy the constitutional requirements governing the admissibility of scientific evidence;
10. That the agency may allow introduction of evidence obtained in violation of the Rules of Racing, which imposes only a minimal standard of Due Process;
11. That the Trial Court found that the Commission did not consider and weigh the withheld Dermorphin evidence and testimony prior to issuing its ruling despite having received the evidence out of order, in a consolidated manner where all the Dermophin-relat-ed matters were heard together and upon irregular procedure, and all of the rulings were issued after having heard the entirety of the evidence regarding Dermorphin;
12. That the Trial Court found that the purported stipulations extended to waive the right to select an authorized referee laboratory;
13. The Trial Court allowed the Commission to require evidence offered by licensees at an agency hearing to meet a higher standard of admissibility than is required of evidence offered by the Commission, specifically that the licensees’ evidence be certified or notarized as a condition of admissibility whereas the evidence introduced by the Commission was neither properly certified, introduced, nor notarized; and,
|414. That the Trial Court affirmed the agency decision without evidence in the record showing that the Commission took Notice of Judicially Cognizable facts or otherwise verified the reliability or methodology of the new Dermorphin test.

ANALYSIS

Horse racing is heavily regulated. The Louisiana Legislature has created a system of regulations found in Title 4, Chapter 4, of the Louisiana Revised Statutes. The scheme requires the licensure of horse trainers, jockeys, and owners. The Louisiana State Racing Commission was created to fulfill the objectives of the regulatory scheme. The commission is responsible for promulgating regulations governing racing and investigating and resolving alleged violations.

The regulations that apply to pharmaceuticals administered to horses are found in La.Admin.Code tit. 35, § 1.1501 et seq. Section 1501(A) provides:

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Bluebook (online)
116 So. 3d 1029, 13 La.App. 3 Cir. 144, 2013 WL 3013885, 2013 La. App. LEXIS 1227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/agilar-v-louisiana-state-racing-commission-lactapp-2013.