Alleging that the California Horse Racing Board "violated its own rules, the laws and Constitution of the state of California, and the United States Constitution," trainer Jeff Mullins has filed a suit seeking to overturn the regulatory board’s latest disciplinary action against him.
On May 9, Mullins began serving a 30-day suspension for a TCO2 positive test on the horse Pathbreaking, who finished third in a race at Del Mar Aug. 3, 2008. According to the CHRB, the horse exceeded the regulatory threshold for total carbon dioxide, a Class 3 violation. Excessive levels of TCO2 have been associated with the prohibited practice of "milkshaking," in which baking soda is administered to a horse.
In imposing the suspension and $2,500 fine April 15, the CHRB said Mullins had violated the terms of probation from another case in 2006 that could result in an additional 70-day suspension. At the time of the CO2 positive, Mullins had served 20 days of an initial 90-day suspension for a previous medication violation. Seventy days of that suspension were stayed as long as he did not commit any other violations for a year.
In seeking a stay of the possible 100-day suspension, Los Angeles attorney James Maniscalco said "such a lengthy suspension would be catastrophic to Mr. Mullins’ career as a professional horse trainer. If the CHRB’s decision is allowed to be executed, Mr. Mullins will be irreparably injured in that he will be prevented from continuing his business in which he has made substantial investment... As a result of the CHRB’s action, Mr. Mullins has already sustained thousands of dollars in damages resulting from this inability to practice his trade of horse racing."
The lawsuit, which in the form of a "writ of mandamus" is an appeal of the CHRB’s action, claims that there is no indication Mullins was involved in milkshaking and that the elevated TCO2 level in Pathbreaking was just above the allowable limit and could have been related to anti-bleeder medication the horse was given.
"Racing rules allow horses to have 37 millimoles per liter and Pathbreaking had 37.9," the suit states. "The California Horse Racing Board used this minor violation to administer to what amounts to a professional death penalty to Mr. Mullins."
The suit goes on to state that it is a "known fact that Lasix causes a temporary spike in CO2 levels that presumably would have and did subside prior to the race," adding that the pre-race test of Pathbreaking was taken about one hour prior to post time.
Among other allegations, the suit filed in San Diego Superior Court contends that the CHRB allowed biased witnesses to testify against Mullins and that without a hearing the regulatory board changed the penalty administered Mullins.
Noting that while the trainer insurer rule in place in California allows trainers to defend themselves by showing they took reasonable steps to prevent unauthorized persons from tampering with their horses, "this defense was rendered illusory by a board that made it impossible to mount such a defense and thus denied Mr. Mullins due process."
The CHRB rejected "uncontested evidence" that Mullins had taken "every reasonable precaution to prevent the administration of any impermissible drug to Pathbreaking, concluding the defense to the trainer insurer rule could not be established unless the trainer videotaped his horse 24 hours a day, seven days a week."
Mike Marten, spokesman for the CHRB, said the board had not yet been served with a copy of the legal action and would have no comment. He said many of the points in the litigation had already been addressed during the CHRB’s previous actions in the case.
"After helplessly watching as my reputation was tarnished by unfounded allegations, I am looking forward to finally getting my day in court," Mullins said in a statement. "As you will see in the complaint that’s been filed, I have been treated unfairly by the CHRB and am confident that with a fair hearing I will be fully exonerated."
Mullins, 47, is consistently among the top trainers on the Southern California circuit. Among the horses he trained was I Want Revenge , the morning-line favorite for the 2009 Kentucky Derby Presented by Yum! Brands (gr. I) who was scratched the morning of the race due to an injury.
Last year, Mullins was barred from New York Racing Association-affiliated tracks for six months for allegedly violating security barn rules by administering an unknown substance to one of his horses prior to a race. The violation occurred at Aqueduct April 4. Mullins was caught giving what he called a cough remedy to Gato Go Win with a dose syringe in the track’s security barn. No medications are allowed in the barn except for Salix, an anti-bleeding drug that must be administered by a state veterinarian.