IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR KENT COUNTY
DELAWARE HARNESS RACING
C.A. NO: 09A-07-001 (RBY)
Submitted: October 22, 2009
Decided: January 15, 2010
Upon Consideration of Appellant’s Appeal
from the Decision of the
Delaware Harness Racing Commission
OPINION AND ORDER
Ronald G. Poliquin, Esq., Young, Malmberg & Howard, Dover, Delaware for
Robert W. Willard, Esq., Department of Justice, Wilmington, Delaware for Appellee.
Appellant, Brewer Adams (“Appellant”), appeals the decision of the Delaware
Harness Racing Commission (the “Commission”), affirming the decision of the Board
of Judges at Harrington Raceway to suspend Appellant from racing for nine months,
and impose a $3,000 fine for violating Harness Racing Regulations. Because the
record demonstrates that there is substantial evidence to support a finding that
Appellant violated Harness Racing Rules and Regulations, the decision of the
Commission is AFFIRMED.
Under the rules of the Commission, a trainer of a race horse is prohibited from
administering certain drugs and substances.1 “Random or for[-]cause testing may be
required by the Commission, at any time[,] on any horse that has been entered to race
at a Commission[-]licensed Association.”2 “At least one horse in each race, selected
by the judges from among the horses finishing in the first four positions in each race,
shall be tested.” 3 The winning horse of every race is routinely tested for foreign
Selected horses are taken to a detention area, where the Commission
Veterinarian or his assistant collects two blood or urine samples, which are
Del. Harness Racing Comm’n R. 8.5.2.
Del. Harness Racing Comm’n R. 126.96.36.199.
Del. Harness Racing Comm’n R. 188.8.131.52.1.
Del. Harness Racing Comm’n R. 8.8.2.
designated as the “primary” and “secondary” samples.5 The primary sample is then
tested for prohibited substances. If the primary sample tests positive for a prohibited
substance, it is sent to Dalare Associates (“Dalare”), a Commission-approved
laboratory, for confirmatory testing.6 If the primary sample is confirmed by Dalare,
the test results are prima facie evidence that the horse was given a prohibited
The trainer of any horse that tests positive for a prohibited substance has the
right to request testing of the secondary sample.8 The trainer also has the right to
select the laboratory where the secondary sample is tested, so long as the laboratory
is approved by the Association of Racing Commissioners International.9 The
Commission is responsible for preparing and shipping the secondary sample.10
Although the Commission retains responsibility for any samples in its
possession, it does not assume responsibility for any acts or incidents beyond its
control. Rule 184.108.40.206.12 of the Delaware Harness Racing Rules and Regulations
specifically provides that “[i]f an Act of God, power failure, accident, strike[,] or
other action beyond the control of the Commission occurs, the results of the primary
official test shall be accepted as prima facie evidence.”
Del. Harness Racing Comm’n R. 220.127.116.11, 18.104.22.168., 8.4..3.5.8.
Del. Harness Racing Comm’n R.22.214.171.124.
Del. Harness Racing Comm’n R. 8.5.1.
Del. Harness Racing Comm’n R.126.96.36.199.9.1, 188.8.131.52.
Del. Harness Racing Comm’n R. 184.108.40.206.9.2.
Del. Harness Racing Comm’n R. 220.127.116.11.10.
In November 2008, Appellant was the trainer of the harness race horses None
Can Compare and Aloha Reggie. On three separate occasions, post-race urine
samples of these horses tested positive for the Class 2 drug Buprenorphine. These
samples were taken: (1) from None Can Compare following the thirteenth race on
November 16, 2008; (2) from Aloha Reggie following the eleventh race on November
19, 2008; and (3) from Aloha Reggie following the sixth race on November 26, 2008.
All three races occurred at Dover Downs Raceway in Dover, Delaware.
Under the Delaware Harness Racing Rules and Regulations, Class 2 drugs are
prohibited due to their “high potential for affecting the outcome of a race.”11 In the
absence of extraordinary circumstances, a Class 2 drug violation warrants “a
minimum license revocation of nine months and a minimum fine of $3,000, and a
maximum fine of up to the amount of the purse money for the race in which the
violation occurred, forfeiture of the purse money, and assessment for cost of the drug
testing.”12 In addition, the Harness Racing Rules and Regulations provide for the
imposition of greater penalties, if certain aggravating circumstances are present.13
One such circumstance is “repeated violations of [the] medication and prohibited
substances rules by the same trainer or with respect to the same horse.”14
As was his right, Appellant requested that the secondary samples of the horses’
urine samples be sent to Louisiana State University (“LSU”) for confirmatory testing.
Appellant was present for the packaging of the secondary samples for transfer to
Del. Harness Racing Comm’n R. 18.104.22.168.
Del. Harness Racing Comm’n R. 22.214.171.124.
Del. Harness Racing Comm’n R. 126.96.36.199.
Del. Harness Racing Comm’n R. 188.8.131.52.1.
LSU. The state investigator then completed the necessary forms for the transfer, and
placed the samples in a state-owned vehicle. Using that vehicle, another state agent
delivered the samples to the United Parcel Service (“UPS”) site in Harrington,
Delaware. UPS scanned each package, and provided the agent with a receipt.
When it was discovered that LSU never received the samples, they were traced
through UPS’s tracking system. It was confirmed that the packages had been
received by UPS at the Harrington site, but there was no record of them leaving the
premises. The secondary samples were never located. Consequently, they could not
undergo confirmatory testing. The original test results from the primary sample were
ultimately used as evidence against Appellant.
Although Appellant’s horses tested positive three times following three
separate harness horse races licensed by the Commission, each positive drug test was
treated as a first offense by the judges because all three test results became known
close in time. The minimum fine for each of the three offenses was imposed, rather
than treating them as first, second, and third offenses with escalating penalties.
Prior to Appellant’s March 18, 2009 appeal hearing before the Commission’s
hearing officer, Administrator of Racing Hugh Gallagher (“Gallagher”), Appellant
requested a pre-determination hearing on two issues: the loss of the secondary
samples and Gallagher’s objectivity. Appellant claimed that Gallagher was involved
in the denial of Appellant’s stay. Appellant’s request for a pre-determination hearing
was denied. Appellant was informed, however, that all requests could be resubmitted, by motion, at the appeal hearing, and that any evidence relating to
Gallagher’s alleged lack of objectivity could be addressed at the appeal hearing as
At the March 18, 2009 appeal hearing before Gallagher, Appellant moved for
a pre-determination hearing. That application was denied. Gallagher then heard
testimony from Appellant and the following Commission officials: Scott Egger,
Presiding Judge (“Egger”); Joseph Strug, Jr., chemist and laboratory director of
Dalare (“Strug”); Brian Manges, state investigator for the Commission (“Manges”);
Betty Ann Davis, office manager for licensing for the Commission (“Davis”); and
George Teague, a Delaware horse trainer.
Near the end of the hearing, Appellant raised an issue concerning notice.
Appellant claimed that he did not receive proper notice of his appeal hearing, and that
the Commission was violating its own rules. After being informed that, pursuant to
Delaware Harness Racing Commission Rule 10.3.8.10, the record could be
supplemented with additional evidence, Gallagher commented that “we’ll keep that
option open.” Gallagher then permitted the parties, including Appellant himself, to
present any final statements.
Less than thirty days after that hearing, in a letter dated April 9, 2009,
Gallagher notified both parties that he was considering allowing additional evidence
into the record. This additional evidence consisted of a Certification of Service
confirming Appellant had been personally served with notice of the hearing.
Gallagher’s letter further explained that each party had five days to inspect and to
rebut the evidence, after which he would render a decision. Appellant’s counsel
responded to Gallagher’s letter on April 16, 2009. This response questioned the
validity of the new evidence, and reiterated prior arguments.
On May 5, 2009, forty-eight days after the March hearing, Appellant filed a
Motion to Dismiss, arguing that the Commission’s Rules required a decision to be
made within thirty days of the original hearing date. On May 11, 2009, Gallagher
issued an Interim Order referring Appellant’s appeals directly to the full Commission
for a de novo hearing. Because of that referral, the Interim Order declared the Motion
to Dismiss tobe moot.
On June 9, 2009, the full Commission convened a de novo hearing to
reconsider Appellant’s original appeal. Appellant appeared pro se.15 Appellant
argued his due process rights had been violated due to the loss of the secondary
samples. He further complained that the Commission failed to follow the precedent
it had established in the George Teague case.16 Finally, Appellant maintained that,
since the Commission failed to render a decision within thirty days of the March
hearing, the charges against him should be dropped. After considering Appellant’s
arguments and listening to the live testimony of Egger, Strug, Manges, and Davis, the
Commission held that Appellant had failed to rebut the prima facie findings of the
original test results. The Commission was satisfied that the evidence showed that the
urine samples had been properly safeguarded by Commission personnel, and
delivered to UPS for shipment to LSU. The Commission disagreed with Appellant’s
interpretation of Rule 184.108.40.206.12, and held that the loss of the samples by UPS was
“an [act] beyond the control of the Commission.” Therefore, the Commission’s
reliance on the original test results was not misplaced.
The Commission upheld Appellant’s suspension and fine.
subsequently brought the present appeal.
Appellant apparently could no longer afford an attorney.
At the March 18, 2009 hearing, George Teague, a Delaware trainer, testified that, when
his secondary samples were lost, the Judges dismissed the drug violations against him.
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.17 On appeal, this Court does
not have the “authority to weigh evidence, determine the credibility of witnesses[,]
or make independent factual findings.”18 Generally, a decision of the Commission
will be affirmed absent an abuse of discretion.19 “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.”20
Appellant complains that the Commission committed legal error on seven
grounds. First, Appellant contends that the Commission’s failure to render a decision
thirty days after the March hearing demands reversal of the violations. Second,
Appellant avers that he was denied a fair and impartial hearing before the Commission
on June 9, 2009 due to the usurpation of the hearing by the State’s attorney and the
Hochstetler v. Delaware Harness Racing Comm’n, 2003 WL 549181, at *2 (Del.
Super. Ct. Feb. 26, 2003) (citing Baxter v. Delaware Harness Racing Comm’n, 2001 WL
167849, at *1 (Del. Super. Ct. Jan. 19, 2001)).
Richards v. Delaware State Harness Racing Comm’n, 1998 WL 960717, at *2 (Del.
Super. Ct. Oct. 20, 1998) (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
Eastburn v. Delaware Harness Racing Comm’n, 2006 WL 2900768, at *2 (Del. Super.
Ct. Aug. 22, 2006) (citing Hochstetler, 2003 WL 549181, at *2).
Hochstetler, 2003 WL 549181, at *2 (citing Public Water Supply Co. v. DiPasquale,
735 A.2d 378, 383 (Del. 1999).
Commission’s attorney. Third, Appellant questions Gallagher’s decision to refer
Appellant’s appeal to the full Commission, rather than deciding it himself. Fourth,
Appellant posits that, by conducting a second hearing after no decision was finalized
on the first hearing, the State was improperly permitted to take “a second bite at the
apple.” Fifth, Appellant maintains that he was not properly notified of the violations
against him. Sixth, Appellant charges that the Commission did not consider any
mitigating factors when deciding Appellant’s penalties. Finally, Appellant claims the
Commission failed to follow its own precedent.
As previously indicated, this Court’s function is to determine whether the
Commission’s decision is supported by substantial evidence, and is free from legal
error. It is a low standard to affirm and a high standard to overturn. Therefore, “if
there is substantial evidence for the Commission’s decision and there is no mistake of
law, the decision will be affirmed.”21 It is the Court’s finding that there is substantial
evidence to support the Commission’s decision, and that no legal error has been
As to Appellant’s first contention, “the failure of the Commission to issue an
opinion within the thirty-day time limit prescribed by its rules does not require a
reversal.”22 When presented with precisely this issue in Richards v. Delaware State
Harness Racing Commission, the court held that:
[i]n general, an agency will be required to follow its own
rules and regulations. However, exceptions to this general
requirement include rules which are adopted merely to
effectuate the transaction of agency business or violations
in which there is no harm because no substantial rights are
involved. In the present matter, the rule at issue [then Rule
10(M), now Rule 10.3.13.1] is intended to expedite the
issuance of opinions. However, the rule does not enlarge or
diminish any substantial rights of appeal and [Appellant’s]
Due Process Rights have not been diminished.23
The court further elaborated that, although the Commission could have acted more
expeditiously, Appellant suffered no measurable prejudice as a result.24 In the case
sub judice, the Court finds no prejudice to Appellant. If anything, the delay in the
issuance of the written decision was favorable to Appellant. The end result was a de
novo hearing before the full Commission, rather than a decision from a hearing
officer he claimed was biased against him.
The balance of Appellant’s contentions, although framed as legal arguments,
is actually ad hominem attacks against the State’s attorney, the Commission’s
attorney, Gallagher, and members of the Commission.
Many of Appellant’s
remaining contentions are simply without legal merit.
First, a review of the June 9, 2009 hearing transcript indicates that the hearing
was conducted fairly and impartially. Not only did the attorneys involved act
appropriately and professionally, they afforded great latitude to Appellant, who was
representing himself. They did not usurp the Commission’s proceeding, and even
offered Appellant procedural advice.
The Commission fully and impartially
considered each side, and rendered its decision accordingly. The Court finds no
reversible error in the Commission’s actions.
Id. (referencing Regional Care Facilities, Inc. v. Rose Care, Inc., 912 S.W.2d 409, 411
(Ark. 1995) (reversal required where substantial rights are prejudiced); Hopkins v. Maryland
Inmate Grievance Comm’n, 391 A.2d 1213, 1217 (Md. Ct. Spec. App. 1978) (where a rule is
adopted merely for the orderly transaction of business, reversal is not required)).
Second, the Court is unclear as to why Appellant raises Gallagher’s alleged
lack of objectivity as an issue in his appeal. Gallagher ultimately recused himself
from this matter. Gallagher’s Interim Order of May 11, 2009 ruled that, due to
questions about his impartiality, the “interest[s] of justice” required him to refer the
appeal to the full Commission. From that point forward, Gallagher was not involved
in the case at all. The Court finds this argument extraneous.
Next, the Court summarily dismisses Appellant’s argument that the State was
permitted a “second bite at the apple.” The expression “second bite at the apple”
necessarily implies that the first bite was not successful, yet, through some windfall,
a new opportunity is awarded. The record clearly demonstrates that this term is
inapplicable to the instant situation. Nothing was decided by the first hearing. After
Gallagher recused himself, a de novo hearing before the full Commission was
granted. Appellant’s argument that the State was somehow advantaged by a decision
rendered for his benefit is untenable.
Appellant’s contention concerning lack of notice fails as well. The record
reflects that Appellant was served personally. A signed Certificate of Service
documents that service was accomplished. Moreover, Appellant did not fail to appear
for any hearings. He was personally present for all proceedings. Therefore,
Appellant suffered no prejudice. The Court finds no reversible error on Appellant’s
Appellant’s final two arguments coincide with one another. Appellant asserts
that, not only did the Commission fail to consider the extraordinary mitigating factors
in deciding his penalties, it failed to follow its own established precedent. According
to Appellant, since the secondary samples never arrived at LSU due to the
Commission’s error, all violations should be dropped. Appellant contends this was
the procedure followed in the George Teague case. The Court is unpersuaded.
The record contains little information about the specific facts underlying the
Teague case. George Teague himself testified that he could not recall the exact
transpiration of events. All he remembered was that the charges against him were
ultimately dropped due to “mishandl[ing] or something.”
The record does, however, contain evidence about the handling of Appellant’s
secondary samples. It is undisputed that the samples arrived at UPS. It was the
Commission’s responsibility to deliver them, and they properly did so. At some point
following this delivery, the samples were obviously lost or misplaced.
220.127.116.11.12 contemplates precisely this circumstance. If an action beyond the control
of the Commission occurs – i.e., UPS’s loss of the samples – which prevents a
confirmatory test, then the results of the primary test are accepted as prima facie
evidence. The Commission found that Appellant could not support any of the above
arguments with evidence to overcome this prima facie finding that the horses had
been administered prohibited substances.
This Court is satisfied with the
Commission’s factual findings, and will not disturb them.
Moreover, when imposing Appellant’s penalties, the Commission did consider
mitigating factors. All three of Appellant’s drug violations occurred during a ten-day
period. Rather than imposing more stringent penalties for the second and third
offenses, which was well within its authority, the Commission treated each violation
as a first offense, and imposed the minimum penalty in each case.
Although Appellant goes to great lengths to hurl unsubstantiated allegations
and advance formulated legal arguments, he cursorily addresses the ultimate issue –
whether substantial evidence supports the Commission’s finding that Appellant
violated the Commission’s rule against prohibited substances.
numerous opportunities to discuss his version of the circumstances that led to his
horses testing positive for prohibited substances. He failed to do so, and alternatively
decided to focus his appeal on other grounds. Nonetheless, the record demonstrates
that there is substantial evidence to support a finding that Appellant violated
Delaware Harness Racing Rules, when Aloha Reggie and None Can Compare tested
positive for the Class 2 drug Buprenorphine.
After reviewing the record, this Court is satisfied that the Delaware Harness
Racing Commission did not err in its decision that Appellant, Brewer Adams,
violated the Harness Racing Regulations. Accordingly, the Commission’s decision
SO ORDERED this 15th day of January, 2010.
cc: Opinion Distribution