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Vafiades v. Maine Harness Racing Commission

Superior Court of Maine, Cumberland

March 8, 2017

STEVEN VAFIADES, RANDY BICKMORE, and W. DREW CAMPBELL Petitioners,
v.
MAINE HARNESS RACING COMMISSION, Respondent.

          ORDER ON M.R. CIV. P. 8OC APPEAL

          Lance Walker, Justice Maine Superior Court.

          Petitioners Steven Vafiades, Randy Bickmore, and W. Drew Campbell appeal the April 26, 2016 Decision and Order of the State of Maine Harness Racing Commission ("Commission"). The Decision determined that Petitioners' violated Commission Rule Chapter 11, Section 4, sub-section 4 by racing their horses with concentrations of cobalt in excess of 50 parts per billion ("ppb"). The Decision suspended Petitioners' racing licenses, prohibited them from engaging in any horse racing activities in the State for between 270 and 450 days, imposed financial penalties, and required the forfeiture of numerous purses. Petitioners challenge the Decision arguing that it was not supported by substantial evidence and violated their rights to Due Process.

         On June 8, 2016, this court granted Petitioners' motion to stay based on the parties' arguments and papers advanced in support thereof. After careful deliberation and examination of the record, the court denies Petitioners' appeal and affirms the Commission's Decision.

         I. Background[1]

         Petitioners are Maine residents engaged in the sport of harness horse racing. They have participated in Maine, and throughout New England, by owning, training, and/or driving harness horses.

         A. RCI Regulation of Cobalt

         In 2015, the Racing Medication and Testing Consortium approved recommendations regulating the permissible amount of cobalt in race horses. (Tr. 16, pp. 63-64; Tr. 35, pp. 139-40.) Those recommendations were forwarded and subsequently adopted by the Association of Racing Commissioners International ("RCI"), the umbrella organization of regulators of professional horse racing in North America, which proposes rules for regulating racing including medical and drug control policies. (Tr. 16, p. 63; Tr. 35, p. 140; Ex. 321-26.) The recommendations suggested two regulatory thresholds that were adopted by the RCI Scientific Advisory Group. (Tr. 35, p. 140; Ex. 321-26.) First, they recommended that "horses with a plasma cobalt concentration greater than 25 parts ' per billion ("ppb"), but less than 50 ppb be issued a warning and placed on the veterinarian's list until the level falls below 25 ppb." (Ex. 325.) Second, they recommended that "horses with plasma levels greater than 50 ppb should be penalized with a Class B penalty" because the available unpublished data suggests that values greater than 50 ppb are a result of the administration of bulk cobalt salts." (Id.) These recommendations were communicated to the Commission in March 2015 prior to being published by the RCI.'(Tr. 35, p. 140.)

         On April 28, 2015, RCI issued a press release explaining that its board of directors voted to sanction trainers of horses that were found to have a cobalt level of 50 ppb or greater of blood plasma. (Ex. 455.) The 50 ppb level was based on the unanimous recommendation of the RCI Scientific Advisory Group. (Id.) The RCI Scientific Advisory Group reported, in pertinent part that:

Administration of bulk cobalt salts to humans and other species has been demonstrated to increase red blood cell production at plasma concentrations greater than 300 ppb sustained for greater than or equal to two weeks, and to have toxic effects at concentrations greater than 700 ppb sustained for 8 to 40 weeks depending on the target organ.

(Ex. 322.) The Group noted, however:

[T]hat extrapolation from other species to the horse is frequently not accurate, and no published studies are available to indicate the plasma concentration that produces an effective or toxic dose in the horse. In the published study by Kynch...equine red blood cell parameters...were not affected by the intravenous administration of a single dose of 49 mg/horse of cobalt, and no toxic effects were observed during the study. The maximum plasma concentration achieved in the study immediately after administration appears to be -900 ppb....

(Id.)

         B. The Commission's March 16, 2015 Notice of Intent

         On or about March 16, 2015, the Commission issued a Notice of Intent ("NOI") providing:

         NOTICE OF INTENT

Effective immediately, the Maine State Harness Racing Commission ("Commission") issues this notice of intent to consider the administration of COBALT as a practice equivalent to blood-doping and further gives notice of its intent to equate the presence of COBALT in elevated levels as the presence of a CLASS 2 PROHIBITED SUBSTANCE WITH A PENALTY CONSISTENT WITH A CLASS A VIOLATION.

(Ex. 551) (emphasis in original).

         Track stewards posted the NOI at Scarborough Downs on or about March 16, 2015. (Tr. 91, pp. 97-87.) The NOI was posted in Bangor, when the track opened, on or about May 2, 2015. (Tr. 91, p. 99.) Petitioner Campbell saw the NOI on March 18, 2015 (Tr. 177, p. 133), Petitioner Bickmore saw it on or about March 27, 2015 (Tr. 180, p. 146), and Petitioner Vafiades saw it at the end of March or first week of April (Tr. 183, pp. 156-57).

         C. The Nature of Cobalt

         Cobalt is a naturally occurring trace mineral that is essential to the health of horses and all mammals and is normally ingested as part of vitamin B12. (Tr. 123, pp. 228-229; Ex. 344.) Horses obtain cobalt from a variety of sources including hay, water, and grain. (Tr. 98, pp. 114-15.) Horses may also obtain cobalt from mineral blocks, and mineral supplements. (Id.) Cobalt is not a stimulant, narcotic, or depressant, and has been prescribed for the therapeutic purpose of treating abnormally low red blood cell counts. (Tr. 126, p. 240.) Cobalt can also be used for tying up, which is the prevention of muscle cramping. (Id.) ' '

         D. Administration of Cobalt to Petitioners' Horses

         Petitioners stated that they regularly gave their horses supplements through the use of containers known as "ringers" or "jugs". (Tr. 177, pp. 131-134; Tr. 181, pp. 148-50; Tr. 183, pp. 155-57.) Ringers are plastic bags that contain a liquid mix of vitamin and mineral supplements that are administered orally or intravenously, and can include cobalt. (Tr. 177, pp. 131-33.) The ringers were given after a veterinarian had drawn and tested the horse's blood, and the supplement ringer was prescribed, and frequently administered by, the veterinarian. (Tr. 177, pp. 133-32; Tr. 181, p. 150; Tr. 183, pp. 155-56.) The ringers were purportedly given in order to bring the horses' blood values for the various vitamins and minerals, including cobalt, back to what the veterinarians deemed "normal" values. (See id.)

         Petitioners Campbell and Bickmore testified that they regularly utilized the services of Dr. Donald Heisler who would draw blood, determine what deficiencies were present, and based on those results prescribe ringers with the necessary supplements to return the blood to normal. (Tr. 177, pp. 131-132; Tr. 179, pp. 140-41; Tr. 181, p. 149.) Petitioner Vafiades testified that Dr. Dennis Ruksznis prescribed cobalt supplements for his horses in order to ensure that their blood counts were in the normal range. (Tr. 183, pp. 155-56.)

         E. Presence of Cobalt in Petitioners' Horses

         In 2013 or early 2014, testing blood samples for the presence of cobalt became a national issue that started making the news. (Tr. 87, pp. 82-83.) Following publication of the NOI, the Commission began including cobalt screening in its routine post-race testing program. (Tr. 87-88, pp. 83-86.) Post-race testing indicated that horses trained by Petitioner Vafiades participated in races while having cobalt in their systems in the blood concentration amounts described in the following table:

Race Date

Horse

Race

Finish

Cobalt Level (ppb)

March 28, 2015

Check Dons Pule

7

3

560.4

March 29, 2015

Miss Paula D

4

1

589.4

April 4, 2015

Bubeleh Stone

7

2

1, 271.0

April 11, 2015

Sam Lucky

3

1

473.9

April 18, 2015

Sam Lucky

5

1

609.1

April 18, 2015

Check Dons Pulse

7

1

409.3

April 25, 2015

Bubeleh Stone

10

1

394.6

April 25, 2015

Sam Lucky

7.

1

477.2

April 26, 2015

Skyway Shanisa

9

2

465.4

April 26, 2015

Victory Tax

10

1

233.2

May 3, 2015

Skyway Shania

6

1

205.1

May 3, 2015

Victory Tax

7

1

108.0

May 3, 2015

Justrollwithit

1

1

73.2

May 16, 2015

Bubeleh Stone

9

1

68.4

(Ex. 444.)

         Similar testing for Petitioner Bickmore's horses revealed the following:

Race Date

Horse

Race

Finish

Cobalt Level (ppb)

April 5, 2015

Luvnuisfun

1

2

906.1

April 5, 2015

Moon Is On Fire

7

1

1, 687.0

April 12, 2015

Luvnuisfun

1

1

357.1

April 18, 2015

Ringo

7

2

1, 041.0

April 19, 2015

Moon Is On Fire

9

1

224.9

April 25, 2015

Luv U A Lot Hanover

6

1

425.4

April 26, 2015

Moon Is On Fire

8

2

106.4

May 9, 2015

Regal Delight

5

2

157.2

May 16, 2015

Ringo

7

1

113.8

(Ex. 444.)

         Finally, testing for Petitioner Campbell's horses were as follows: Race Date Horse Race Finish Cobalt Level (ppb)

Race Date

Horse

Race

Finish

Cobalt Level (ppb)

March 29, 2015

JJS Jet

8

2

377.5

April 5, 2015

Remix

8

1

167.3

         (Id.) As demonstrated in the tables above, and as testified to by Dr. Clara Fenger, each of Petitioners' horses that were tested on multiple dates show a "trend on cobalt levels over time, race date to race date, [that] is decreasing in one hundred percent of the cases. (Id.; Tr. 132, pp. 263-64.)

         The blood samples listed above, along with others, were sent to a laboratory for testing in two groups. (See Ex. 444.) The first group included the samples drawn between March 28 and April 19, 2015. (See id.) The Commission received the results from the lab on May 4, 2015. (See id.) The results were subsequently sent for additional rounds of testing the results of which were received on or about May 15, 2015, and May 27, 2015. (Id.) Petitioners were not notified of the results for the first group until after June 15, 2015. (Ex. 13-15, 85-87, 169-71.) The second group included the samples drawn between April 25, 2015 and May 16, 2015, but did not include any samples from Petitioner Campbell's horses (Ex. 444.) The Commission received the results on June 23, 2015, but sent the results for an additional round of testing that was not completed until July 7, 2015. (Id.) Petitioners were not notified of these results until after July 28, 2015. (Ex. 46-48, 173-175.) The notices of positive test results did not quantify the values of a normal or elevated level of cobalt, providing only that the blood tests "disclosed the presence of an excessive level of cobalt." (Ex. 13-15, 46-48, 85-87, 169-71, 173-75.)

         The notices of positive test results informed Petitioners of their right to request confirmatory testing, and that a notice of hearing would be forthcoming. (See id.) Notices of hearing were sent to the Petitioners. (Ex. 1-2, 9-10, 77-82, 157-58.) The Petitioners' cases were subsequently consolidated and a hearing was commenced on October 28, 2015, which continued over the course of January 22, 2016, February 24, 2016, and May 16, 2016. (See Tr. 1, 67, 144, 239.) During the proceedings, the parties stipulated to the following facts:

1.) There was no defect in the chain of custody of the equine blood samples until they were received by the LGC Science Laboratory;
2.) The Licensees were the trainers of record for each horse identified in their respective notices of positive test ...

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