Citing a variety of claims that his client’s rights were violated, an attorney for trainer Rick Dutrow has filed an appeal over the 30-day suspension levied by the Kentucky Horse Racing Commission for a Clenbuterol positive in the spring of 2008.
In the filing in Franklin (Kentucky) Circuit Court, attorney Frank Becker alleges the commission lacked "substantial evidence to support the final order and that the final order was arbitrary, capricious, and characterized by abuse of discretion."
Following a closed session during its July 7 meeting, the commission voted 6-5 to impose the 30-day penalty on Dutrow, who had initially been suspended 15 days by the stewards. The commission also ordered a forfeiture of the purse earned by Salute the Count after finishing second in the $100,000 Aegon Turf Sprint (gr. IIIT) at Churchill the day before the Dutrow-trained Big Brown won the 2008 Kentucky Derby Presented by Yum! Brands (gr. I). At the time, Salute the Count was owned by Michael Dubb and Robert Joscelyn.
After the July 7 action, KHRC executive director Lisa Underwood said she believed the commission decided on the stiffer penalty in an effort to send a message to trainers who utilize the appeal process to its fullest, even when they acknowledge that the medication positive was legitimate.
"They considered that he had recognized that he had made a mistake but that he had delayed it," Underwood said of the commission’s decision. "He flagrantly worked the system."
Becker’s filing on behalf of Dutrow calls for the commission’s action to be reversed because "the penalty imposed by the final order was clearly motivated by animous toward Dutrow rather than the evidence." Becker cited state statutes that provide the commission was restricted to considering the record of the hearing officer in making its decision and that it was apparent the KHRC’s final order "was clearly based on ex parte communication by some or all members of the commission and was based on consultation with a person or party engaged in the investigation or prosecution and personal investigation outside the record."
Also, the complaint states that Dutrow and his attorney should have been notified of any personal investigation outside the record.
The complaint also says the KHRC did not follow its own rules in taking and maintaining the blood samples tested in the Dutrow case.
"The commission did not present any evidence that the identity of Salute the Count was confirmed by the person taking the blood sample," the filing states. "The commission did not present any evidence that the sample was free of contamination. The commission did not present any evidence that the instructions from the authority veterinarian were followed.
"In fact the commission established that it affirmatively violated 810 KAR 1:018 section 11(a) by failing to store the split sample in a freezer at a secure location approved and chosen by the authority. Its witnesses admitted the sample was merely refrigerated…"
Becker also contends that forfeiture of the purse in the Salute the Count case was not authorized under state regulations. "The penalties for a first offense Class B violation patently do not include forfeiture of the purse. Indeed, it is listed as an alternative penaly by agreement with the licensee, necessarily meaning that it is not a penalty that can be imposed absent such agreement."