Lormand v. Louisiana State Racing Commission

115 So. 3d 1271, 13 La.App. 3 Cir. 143, 2013 WL 3013900, 2013 La. App. LEXIS 1220
CourtLouisiana Court of Appeal
DecidedJune 19, 2013
DocketNo. 13-143
StatusPublished

This text of 115 So. 3d 1271 (Lormand 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
Lormand v. Louisiana State Racing Commission, 115 So. 3d 1271, 13 La.App. 3 Cir. 143, 2013 WL 3013900, 2013 La. App. LEXIS 1220 (La. Ct. App. 2013).

Opinion

GREMILLION, Judge.

liKyi Lormand appeals the trial court’s decision affirming the Louisiana State Racing Commission’s decision to suspend him from horse training for three years and fine him $2,500 because a horse he trained tested positive for dermorphin, an opiod naturally found in the skins of South American frogs. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On May 16, 2012, He’s A Slewvescent, a horse owned and trained by Lormand, finished second in a race at Evangeline Downs in St. Landry Parish. Routine blood and urine samples were obtained from He’s A Slewvescent. It is undisputed that the horse’s blood and urine tested positive for dermorphin. Lormand contends that he contacted the horse’s veterinarian, Dr. Kyle Hebert, about some respiratory difficulties the horse had, and that Dr. Hebert administered an injection of Lasix and “an herbal enhancement.” While he did not accuse Dr. Hebert explicitly, Lormand offered no other explanation for how the horse was administered der-morphin.

Lormand was advised of his right to have the results subjected to split sample testing by a referee laboratory. Only one referee laboratory was offering such split sample testing. Lormand exercised his right, and the referee laboratory reported the samples tested positive for dermor-phin.

Lormand was suspended by the stewards and fined $1,000. The stewards also referred Lormand to the Louisiana Racing Commission for further disciplinary action. The Commission met and heard Lor-mand’s adjudication on September 28, 2012. Lormand appeared before the Commission in proper person. He stipulated to the chain of custody of the samples taken from the horse, that the laboratory l2found dermorphin in the samples, and “that [he had] no problem with those findings and that [he stipulated to] the introduction of [the] positive report and the science behind that particular report.” The written stipulation merely provided that Mr. Lormand stipulated to the chain of custody of the samples.

[1273]*1273The commission heard two days of testimony and argument in several cases, all of which involved actions against trainers over the alleged use of dermorphin. Decisions in the cases were rendered by the commission after all cases had been heard. The commission handed down the suspension and fíne to Lormand, who sought judicial review before the Twenty-seventh Judicial District Court. Lormand’s case was consolidated for review with that of Anthony C. Agilar, whose matter has also been consolidated with Lormand’s on appeal. The trial court affirmed the commission’s decision. This appeal followed.

ASSIGNMENTS OF ERROR

Lormand 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, including 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 [1274]*1274rulings 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:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

RJ D'HEMECOURT PETROLEUM v. McNamara
444 So. 2d 600 (Supreme Court of Louisiana, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
115 So. 3d 1271, 13 La.App. 3 Cir. 143, 2013 WL 3013900, 2013 La. App. LEXIS 1220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lormand-v-louisiana-state-racing-commission-lactapp-2013.