The Kentucky Court of Appeals has overturned Dr. Rod Stewart's four-year suspension for possession of cobra venom, stating that the regulation under which the veterinarian was disciplined was vague.
The three-judge panel, in its March 15 ruling, also declined to reverse a lower court ruling on Stewart's behalf dismissing a one-year suspension he was given for possession of two other drugs.
In September 2009, Stewart was suspended for four years for possession of three sealed vials of cobra venom, a substance used to kill pain, and suspended for one year for the possession of carbidopa and levodopa, both of which are used to treat Parkinson's disease in humans. The substances were found during a June 22, 2007 search and seizure of items in a barn at the Keeneland training center occupied by trainer Patrick Biancone.
Biancone was also suspended six months and then did not seek licensing for an additional six months before resuming his training career.
The regulatory body, then named the Kentucky Horse Racing Authority, later voted unanimously to accept a hearing officer's report upholding the suspensions.
The Court of Appeals agreed with arguments made by Stewart's attorneys—Mike Meuser, Michelle Hurley, and Karen Murphy—that the regulations under which their client was suspended were vague, especially since the drug was then legal for use in the Standardbred industry in Kentucky and it was not expressly prohibited for use in Thoroughbreds at the time of the raid on the Keeneland barn. Stewart treated both Standardbred and Thoroughbred horses.
"We are ultimately in agreement with Dr. Stewart that the commission's permissive use of snake venom under Standardbred horse regulations, coupled with the lack of express forbiddance of snake venom in Thoroughbred racing regulations creates an ambiguity, which does not give a veterinarian of ordinary intelligence a reasonable opportunity to know that the commission intended to prohibit snake venom in Thoroughbred racing.
"Accordingly, we must agree that the regulation relied upon by the commission to suspend Dr. Stewart's license was impermissibly vague because it does not place a veterinarian to whom it applies on actual notice as to what conduct is prohibited, arguably leading to an arbitrary enforcement of the regulation."
A month after its action suspending Stewart, the racing authority amended its rules and regulations to prohibit the administration of cobra venom in Standardbreds.
In upholding Franklin Circuit Court Judge Philip Shepherd's decision to reverse the one-year suspension for possession of carbidopa and levodopa, the appeals court judges said they agreed that there was no substantial evidence to support the commission's contention that the two drugs may endanger the health and welfare of the horse and the safety of the rider.
"The commission's finding that the drugs may endanger the horse or rider is too speculative based on the lack of evidence," the court ruled. It noted that Dr. Mary Scollay-Ward, the KHRC's equine medical director, had testified she was unaware of any literature describing the effect of the drugs on horses.
In the ruling, the appeals court also rejected the KHRC's argument that Stewart's appeal should be dismissed due to failure to properly notify the state Attorney General of a constitutional challenge.
Since the Racing Commission was established in 1906, no Kentucky appellate court has ever reversed a final decision of our racing commission—as in never, according to attorney and former Kentucky legislator Bob Heleringer, who has written a history of equine regulatory law.
"And she did it on a void-for-vagueness claim to boot, which is really difficult to prove. All in all, an impressive effort," Heleringer said.
A spokeswoman for the commission said the decision is being reviewed and that there would be no comment at the present time.
The appeals court opinion was rendered with the notation that it was "not to be published," meaning that the ruling does not stand as judicial precedent in Kentucky, said Bowling Green, Ky., attorney Dick Downey.
"Generally speaking, this means it cannot be cited as controlling precedent in later cases," Downey said. "However, attorneys in the case have the right to move the Court of Appeals to change the decision to a 'published' one. After the outcome of any post-decision motions, the KHRC may ask the Kentucky Supreme Court to review cobra venom case," said Downey, who was not involved in the case.
"The Kentucky Supreme Court may accept or deny a review of the cobra venom decision in its discretion. It's called 'Discretionary Review.'," Downey said. "Should the Supreme Court deny a review, the Court of Appeals decision will be officially final. Should a review be granted, the Supreme Court would conduct its own independent review of the case."