Records-Based Trainer Ruling Overturned: Blood-Horse 11/4/16

By: Tom Precious

A major equine drug infraction case, which led to the revocation of a Standardbred trainer’s license, has been overturned by a New York state appeals court.

The Appellate Division of New York State Supreme Court’s Third Department found in favor of Luis Pena, a top Standardbred trainer who was accused by New York regulators more than four years ago of 1,719 different equine drug violations involving more than 700 races. Pena was slapped with a three-year suspension and $343,000 in fines.

But the Albany-based appeals court, in a Nov. 3 decision, said veterinary records used by Gaming Commission investigators in the case against Pena were insufficient to prove he had violated the state’s drug rules.

The case was closely watched in the industry because of the reliance on record-keeping, and not actual drug tests, to revoke a license of a trainer.

The 4-1 ruling permits Pena, a major trainer at Meadowlands who has done extensive work at New York racetracks, to continue to work in New York. A court had previously issued a stay that allowed him to train horses in the state while the legal case went through the system.

In writing for the majority, Justice Eugene P. Devine noted that all random drug tests performed on Pena’s horses came back negative. The New York Racing and Wagering Board, the predecessor agency to the current Gaming Commission, “nevertheless obtained veterinary records insinuating that (Pena) ran afoul of the rule with regard to multiple substances in the lead-up to hundreds of harness races run between January 2010 and April 2012,” the judge wrote. He noted that the hearing officer who ran the case that led to the revocation “focused in significant part” on the admissibility of veterinary records to determine drug violations had taken place.

Those veterinary records, though, had “sparse” information on them, and the court was unconvinced that dates written on those documents proved that those were the dates when drug treatments were actually provided. As such, the records “lacked ‘substantial probative evidentiary evidence” on the key issue: whether drugs were administered to horses within a banned period of 96 hours prior to a race. The court said the Gaming Commission’s investigators used speculation by “simply relying on custom that the records gave the dates of treatment, but made no effort to grapple with the affirmative statement of the (veterinary) practice that such was not the case,” the judge wrote.

In the sole dissent, Justice William E. McCarthy noted, in a footnote, that two different veterinary records were relied upon by investigators: one showing chronological history veterinary care provided each horse and the second were for billing purposes, including dates and prices for treatments provided.

“The proof relevant to the interpretation of the veterinary records consisted of expert proof regarding the customary practice of veterinarians, the records themselves and the proof regarding (Pena’s)¬†admissions regarding veterinary treatment,” the judge wrote. He noted a phone conversation between a state investigator and Pena would lead “a reasonable mind” to conclude pre-race drug violations had occurred.

The gaming commission last year slapped Pena with the three-year suspension and a fine of $200 apiece for the more than 1,700 equine drug violations, including pre-race bans involving hormones, steroids, and clenbuterol. Regulators said the infractions occurred between January 2010 and April 2012 at several New York racetracks, including Empire Casino at Yonkers Raceway, Saratoga Casino & Raceway, and Tioga Downs.

A state Gaming Commission spokesman said the decision is being reviewed.