A hearing officer has ruled that the Kentucky Horse Racing Commission acted properly when it handed a five-year suspension to veterinarian Dr. Rodney Stewart after cobra venom and other prohibited substances were found in a barn and in his truck at Keeneland in June 2007.
Hearing officer Robert Layton, who conducted a two-day hearing in December into Stewart’s appeal of the suspension, agreed with the KHRC attorneys on all aspects of the case, stating that the length of the suspension was long but “legally supportable” and that claims by the veterinarian’s attorneys that the property where the barn was located was not technically under regulatory supervision of the KHRC.
“The penalties issued for the September 17, 2007 stewards’ rulings support the commission’s mission of ensuring the safety and integrity of racing,” Layton concluded. (Read the complete findings here.)
Both parties have 15 days from the issuance of Layton’s ruling to file exceptions and recommendations with the KHRC executive director. The ruling also must be affirmed by the full KHRC, action that will likely occur at its May meeting. Also, a party may institute an appeal with Circuit Court within 30 days of the final order being mailed or delivered.
Karen Murphy, who along with Mike Meuser represented Stewart in his appeal, said she had not seen the opinion (“I fully expected I would provided a copy of the opinion before the press.”) but said it appeared to be a “rubber stamp” of the arguments and actions presented by the commission.
“I am very disappointed because if you had an impartial hearing officer (they) would have credited Dr. Stewart and against the commission on both the penalty and jurisdictional arguments,” Murphy said.
While statutorily the commission may have been able to take the action they did against Stewart, Murphy said there should be a correlation between penalty and the violations.
“In the real world, all of those things do matter and they matter precisely on the issue of penalty,” she said. “You don’t just penalize anyone with no precedent for it to the extent you have penalized Dr. Stewart when there is no indication of anything nefarious or no indication it was going to be used. The penalty should fit the facts. The penalty should have been adjusted to reflect those facts at a minimum.”
Since the hearing officer’s recommendation is not final until the full commission approves it, Murphy said she hopes her client will still prevail.
“The commission has the power and the responsibility to look at the facts and to address the issue of penalty and understand this is this man’s entire life. He served twice as long as Mr. Biancone has and I hope the commission will see the service of that suspension as being sufficient. It is my hope the commission will read the testimony and once they read it and understand it, they will see that the five-year penalty is excessive, unwarranted and will not sustain a legal challenge. They have the authority to accept, reject, or modify this. We are still hopeful."
The lengthy, high profile case stemmed from an inspection conducted June 22, 2007 at barns occupied by trainer Patrick Biancone at Keeneland Race Course and the Keeneland Training Center, located on Rice Road across from the main facility. During the inspection, a soft-sided cooler containing the prohibited substance cobra toxin was found in a refrigerator at Biancone’s barn at the training center. A search of a box in the back of Stewart’s truck on the main track premises contained carbidopa and levodopa, both considered Class A medication under Kentucky racing rules.
Chief state steward John Veitch testified that the inspection was a routine followup after a horse trained by Biancone had tested positive following a race at Churchill Downs.
Biancone, who was suspended for six months and agreed not to seek reinstatement for another six months, completed his suspension late last year.
Stewart was suspended for four years for possession of three sealed vials of alpha-cobratoxin, or cobra venom, a substance used to kill pain. Stewart was additionally suspended for one year for the possession of carbidopa and levodopa, both of which are used to treat Parkinson's disease in humans. The suspensions were to run consecutively, and he was also suspended for lesser offenses related to the case, with those suspensions to run concurrent to the longer suspensions.
During his appeal, Stewart testified that Biancone was unaware of the contents of the cooler and that although it belonged to him, the vet himself was unaware that it contained cobra toxin. Stewart’s attorneys attempted to show that any violations of Kentucky’s medication rules by their client were inadvertent and that there has been no evidence that he used or was attempting to use on horses any of the drugs for which he was suspended. The attorneys also questioned whether the barn where the cooler was found is actually on property under the racing commission’s jurisdiction.
Citing penalties permitted under the regulations Stewart violated and outlining the seriousness of the offenses, Layton said “the commission (and stewards acting on its behalf) are charged with nothing less than regulating Kentucky horse racing of the highest quality and free of any corrupt, incompetent, dishonest, or unprincipled horse racing practices and to regulate and maintain horse racing at race meetings in the commonwealth so as to dissipate any cloud of association with the undesirable and maintain the appearance as well as the fact of complete honesty and integrity of horse racing in the commonwealth.
“Nor is there any requirement in the regulatory framework for violations under this section that the commonwealth prove Dr. Stewart had a specific intent to cause such a racing result… such a high burden of proof would allow licensees to freely possess medications within the barn that could be freely used for the most dishonest or dangerous of reasons, so long as they were not caught specifically in the act of an illegal injection.”
Layton also rejected Stewart’s defense that the prohibited substances were there inadvertently, including statements that the cooler was only in the refrigerator because the veterinarian was storing items there because he was in the process of relocating to Saratoga Springs, N.Y., from Kentucky.
“A veterinarian who claims not to know what was in a medicine in his possession for treating animals, lacks credibility,” the hearing officer wrote. “And claims of ‘stupidity’ or ‘not thinking’ (the words chosen by Dr. Stewart) are not a sufficient basis for mitigation.”
Stewart was suspended indefinitely by the stewards Sept. 17, 2007, due to a determination that he had failed to cooperate in the investigation by failing to turn over records requested by the KHRC. That suspension was lifted and Layton determined it is moot after Stewart and his attorneys provided the requested material in December 2008. Because that suspension was lifted, Stewart resumed his practice in Saratoga.