William D. Cowans, Appellant-Appellant, v. Ohio State Racing Commission, Appellee-Appellee.
No. 13AP-828 (C.P.C. No. 12 CVF 15675)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
April 29, 2014
2014-Ohio-1811
(REGULAR CALENDAR)
DECISION
Rendered on April 29, 2014
Graff & McGovern, L.P.A., and John A. Izzo, for appellant.
Mike DeWine, Attorney General, Andromeda McGregor and Christie S. Collins, for appellee.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
I. Facts and Procedural History
{2} Appellant is a licensed thoroughbred owner and trainer. He was the trainer for “Potential Argument,” one of the winning horses at Beulah Park on February 10, 2012. Laboratory testing of blood and urine sаmples collected from Potential Argument the day of the race reported a positive finding of Ranitidine, a medication used to prevent gastric ulcers. As a result of the laboratory test results, the Stewards at Beulah Park issued an April 13, 2012 ruling finding appellant violated the following rules:
{3} On April 17, 2012, appellant filed a timely appeal to the Commission for a de novo hearing. The Commission issued a letter dated April 20, 2012 acknowledging appellant requested a hearing to object to the ruling that his horse “tested positive for Ranitidine ‘Zantac’ at Beulah Park on February 10, 2012.” (R. 19 at 3.) The letter advised appellant that the Commission had scheduled a hearing as authorized by
{4} On December 13, 2012, the Commission adopted the hearing examiner‘s Report and Recommendation by unanimous
II. Assignments of Error
{5} On appeal, appellant assigns the following three assignments of error for our review:
- The common pleas Court abused its disсretion when affirming an Order that was not in accordance with law.
- The common pleas Court abused its discretion when affirming an Order that was not supported by reliable, probative, and substantial evidence.
- The common pleas Court abused its discretion when it determined the Commission has the authority to promulgate a rule that assesses the costs of an administrative hearing to a licensee.
For ease of discussion, we address appellant‘s assignments of error out of order.
III. Standard of Review
{6} In reviewing an order of an administrative agency under
{7} An appellate court‘s review of an administrative decision is more limited. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). The appellate court is to determine only whether the common pleas court abused its discretion. Id.; Blakemore v. Blakemore, 5 Ohio St.3d 217, 218 (1983). On review of purely legal questions, however, an appellate court has de novo review. Big Bob‘s, Inc. v. Ohio Liquor Control Comm., 151 Ohio App.3d 498, 2003-Ohio-418, ¶ 15 (10th Dist.).
IV. Second Assignment of Error - Reliable, Probative, and Substantial Evidence
{8} We first address appellant‘s second assignment of error alleging the common pleas court abused its discretion when it affirmed the Commission‘s order because reliable, probative, and substantial evidence did not support that order. More specifically, appellant asserts: (1) the hearing examiner copied information from another case into his Report and Recommendation;
{9}
{10} “The absolute insurer rule imposes strict liability on the trainer for the presence of drugs in a horse.” Belcher v. Ohio State Racing Comm., 10th Dist. No. 02AP-998, 2003-Ohio-2187, ¶ 16, citing O‘Daniel v. Ohio State Racing Comm., 37 Ohio St.2d 87, 90 (1974); Sahely v. Ohio State Racing Comm., 10th Dist. No. 92AP-1430 (Apr. 6, 1993). Appellant‘s level of care does not affect appellant‘s liability for a violation of the absolute insurer rule. Belcher at ¶ 16, citing Dewbre v. Ohio State Racing Comm., 16 Ohio App.3d 370, 373 (12th Dist.1984). The only evidence necessary to establish a violation of
{11} Here, it is undisputed that Potential Argument tested positive for the presence of Ranitidine, a foreign substance under the definition set forth in
A. Hearing Officer Report
{12} Initially, appellant alleges the hearing examiner copied information from an entirely different case and erroneously included it in the Report and Recommendation for the case at bar. Appellant argues the information in the Report cannot be reliable if it originated in another case and, because the Report and Recommendation did not accurately reflect the evidence and informаtion presented at the hearing, the Commission should not have relied on it. Appellant also asserts the hearing examiner‘s Report and Recommendation contains so many inaccurate statements that reliable, probative, and substantial evidence does not support the Commission‘s order.
{13} If appellant is correct that large portions of the Report originated in an entirely separate case and have no relation to appellant‘s case before the Commission, his frustration is understandable. Nevertheless, where the extraneous information contained in the Report and Recommendation is not dispositive of the Commission‘s decision and does not affect appellant‘s substantial rights, the cоmmon pleas court does not err in affirming the Commission‘s order containing those extraneous statements. See Roy v. Ohio State Med. Bd., 80 Ohio App.3d 675, 686 (10th Dist.1992).
{14} Indeed, as the common pleas court noted, “[t]here is nothing in the transcript
{15} Even where a hearing examiner‘s Report is less than exemplary, the Commission “has extensive authority to review and resolve independently evidentiary conflicts in the record.” Bharmota v. State Medical Bd. of Ohio, 10th Dist. No. 93AP-630 (Dec. 7, 1993) (concluding appellant‘s argument that the medical board improperly relied on a “misleading hearing examiner report” implicitly assumes the board relied solely on the hearing examiner‘s report as the evidentiary basis for its opinion), citing In re Williams, 60 Ohio St.3d 85, 87 (1991). Thus, the issue is whether, even in light of the alleged mistakes in the hearing examiner‘s Report and Recommendation, there was enough other reliable, probative, and substantial evidence to support the Commission‘s order such that the common pleas court did not abuse its discretion in affirming the order.
B. Laboratory Director
{16} Soobeng Tan, the director of the Analytical Toxicology Lab for the Ohio Department of Agriculture which has a contract with the Commission to test racehorse samples, testified at length concerning the procedures employed in examining the urine sample procured from Potential Argument on race day. As the common pleas court noted, no witness testified in contradiction to Tan‘s testimony.
{17} Tan testified that after the urine sample initially screened positive for Ranitidine, his laboratory conducted additional confirmatory tests оn the sample. After explaining in detail the testing procedures employed by the lab, Tan testified the test results were accurate to a reasonable degree of scientific certainty. On cross-examination, Tan clarified that this test is a “qualitative test,” so the term “degree of scientific certainty” does not apply to the concentration. (Tr. Vol. II, 307-09.) He explained that “in a qualitative identification situation like this case, Ranitidine, when we call a positive on that drug, we are 100 percent sure that this drug is present in the test sample, and there‘s no uncertainty.” (Tr. Vol. II, 355-56.)
{18} It is from this testimony that the common pleas court determined reliable, probative, and substantial evidence supports the Commission‘s factual finding that Ranitidine was in the urine оbtained from the racehorse on race day. Appellant points to nothing to indicate the common pleas court abused its discretion in so doing, other than to disagree with the underlying credibility and weight determinations.
{19} Appellant argues Tan lacked credibility because his testimony contained inconsistencies. However, the common pleas court engaged in its own consideration of Tan‘s credibility and concluded the hearing examiner “appropriately determined the witness’ credibility.” (R. 46, Decision and Entry, 7.) To the extent appellant suggests we reweigh the credibility
{20} Additionally, appellant suggests the common pleas court accorded too much weight to Tan‘s testimony because the Commission never qualified Tan as an expert. While the record shows the Commission never asked the hearing examiner to determine whether Tan was an expert witness, as Rule 701 of the Ohio Rules of Evidence uses that term, Tan testified as to his training, experience, and education, as well as to matters requiring specialized expertise and the scientific processes involved in the laboratory testing. Further, the failure to formally certify Tan as an expert does not mean the hearing examiner could not consider and weigh his testimony. As a general rule, “administrative agencies are not bound by the strict rules of evidence applied in courts.” Buckles v. Franklin City Bd. of Revision, 10th Dist. No. 07AP-932, 2008-Ohio-1728, ¶ 23 (finding appellant‘s argument unpersuasive that a witness’ testimony was accorded too much weight since there was not a sufficient foundation to establish him as an expert), citing Haley v. Ohio State Dental Bd., 7 Ohio App.3d 1, 6 (2d Dist.1982).
C. Witness Testimony
{21} Appellant similarly argues the hearing examiner incorrectly discounted the testimony of Robert Schwartz, a veterinarian, because of a perceived bias or conflict of interest in favor of appellant. The hearing examiner and subsequently the Commission were entitled to accord whatever evidentiary weight they deemed appropriate to the witness’ testimony. The common pleas court concluded the Commission appropriately determined the weight and credibility given the witness’ testimony. Though appellant attempts to challenge the weight given to the testimony of some witnesses over others, “again, it is the function of the [Commission], and not this court, to weigh the credibility of such testimony and reach factual findings.” Houser v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 10AP-116, 2011-Ohio-1593, ¶ 14, citing Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Servs., 73 Ohio St.3d 694, 696 (1995).
D. Exhibit No. 10
{22} Appellant further asserts reliable, probative, and substantial evidence did not support the Commission‘s order because the Commission considered information that the hearing examiner did not admit at the hearing. More specifically, appellant contends the hearing examiner determined exhibit No. 10 was “not properly substantiated for admission purposes,” but the document nevertheless appeared in the materials provided to thе Commissioners prior to the December 13, 2012 meeting. (R. 19, Report and Recommendation, 25.)
{23} This argument is speculative. Appellant points to nothing in the record that indicates the Commission actually considered exhibit No. 10. Absent a showing to the contrary, we must presume the regularity of the administrative proceedings. See Arnold v. Ohio Adult Parole Auth., 10th Dist. No. 11AP-120, 2011-Ohio-4928, ¶ 14 (stating “[w]here nothing in the record indicates procedural irregularity, a presumption of regularity attaches to administrative agency proceedings“), citing Freeman v. Ohio Dept. of Human Servs., 10th Dist. No. 95APE03-359 (Dec. 14, 1995), citing State ex rel. Ohio Bldg. Restoration, Inc. v. Indus. Comm., 64 Ohio St.3d 188, 189 (1992).
{25} Based on the record before us, we cannot find the common pleas court abused its discretion in finding that reliable, probative, and substantial evidence supports the Commission‘s order. Thus, we refuse to substitute our judgment for that of the Commission or the common pleas court. See, e.g., id. at ¶ 24.
{26} Because appellant cannot demonstrate the Commission relied on the extraneous information in the hearing examiner‘s Report and Recommendation, the mistakes in the Report and Recommendation, or the improperly included exhibit, and because other reliable, probative, and substantial evidence supports the Commission‘s order, we cannot find that the common pleas court abused its discretion in affirming the Commission‘s order. Accordingly, we overrule appellant‘s second assignment of error.
V. First Assignment of Error - Administrative Order Not in Accordance with Law
{27} In his first assignment of error, appellant asserts the common pleas court erred in affirming an administrative order that was not in accordance with law. Within this assignment of error, appellant raises several sub-arguments: (1) the Commission failed to properly issue a notice in accordance with
A. Notice
{28} Appellant first argues the Commission failed to issue a proper notice of opportunity for hearing pursuant to
{29} “When an administrative agency proposes to take disciplinary action against a party,
{30} Appellant does not argue that hе did not receive notice, nor does he argue
{31} In response, the Commission argues the notice requirements of
{32} As a general rule,
{33} Here,
{34} Because the statutes governing horse racing gave appellant a right to appeal the Stewards’ decision to the Commission and obtain a hearing on the appeal, the
{35} The hearing examiner, the Commission, and the common pleas court all agreed with the Commission‘s characterization of when the nоtice requirements of
{36} Further, even if we were to entertain appellant‘s insufficiency of notice argument, we note that appellant indisputably knew of the precise charges against him, knew of the hearing date, attended the hearing represented by counsel, and called witnesses on his behalf. See Little at ¶ 18 (noting due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections“), quoting Althof v. Ohio State Bd. of Psychology, 10th Dist. No. 05AP-1169, 2007-Ohio-1010, ¶ 19. Thus, even though the
B. Failure to Consider Objections
{37} Appellant next argues the common pleas court erred in affirming the Commission‘s order because appellant contends the Commission did not consider appellant‘s objections to the hearing examiner‘s Report and Recommendation.
{38} Appellant filed objections to the hearing examiner‘s Rеport and Recommendation on November 21, 2012. There is no mention of appellant‘s objections by the Commission in the minutes from the December 13, 2012 Commission meeting when the Commission adopted the hearing examiner‘s Report. Because the Commission did not expressly state that it reviewed appellant‘s objections, appellant asserts the only conclusion is that the Commission did not consider the objections and, therefore, appellant argues this court must reverse the Commission‘s order.
{39} Appellant does not point to any authority suggesting an administrative body must affirmatively state on the record that it considered proffered objections to the hearing examiner‘s Report. “An appellate court must presume the regularity оf administrative proceedings.” Houser at ¶ 20, 21, citing Ostrander v. Parker-Fallis Insulation Co., 29 Ohio St.2d 72 (1972). See also Perry v. Joseph, 10th Dist. No. 07AP-359, 2008-Ohio-1107, ¶ 20 (stating “[a]n appellate court must presume the regularity and validity of the proceedings in the trial court, absent a record which affirmatively demonstrates otherwise“), citing Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (1980). Where the record is silent, we must presume the Commission reviewed the objections before adopting the hearing examiner‘s order, “absent an affirmative showing to the contrary.” Perry at ¶ 20, citing Matter of Hermann, 2d. Dist. No. 94 CA 12 (Jan. 27, 1995).
{40} Further, a review of the transcript of the December 13, 2012 commission meeting shows appellant presented the substance of his objections orally before the Commission. Appellant specifically mentioned the written objections he filed prior to the commission‘s meeting, even referencing particular objection numbers. Thе mere fact that the Commission did not explicitly state on the record that it had considered appellant‘s objections does not mean that it did not consider the entire record of proceedings, including appellant‘s objections, before rendering its decision. See Houser at ¶ 21 (concluding a claimant‘s contention that the administrative agency failed to consider the entire record due to the agency‘s statement in its decision that “[claimant] presented no evidence in the hearing in this matter” when in fact evidence in the record may have supported claimant‘s position does not “overcome the presumption of the regularity of the [agency‘s] proceedings“).
{41} Thus, as to appellant‘s assertion that the Commission did not consider his objections as a procedural matter, that argument is not well-taken.
C. Mandatory or Discretionary Penalty
{42} Appellant next argues that the common pleas court erred in affirming the Commission‘s order because the hearing examiner construed the forfeiture of the purse as mandatory. Appellant contends that the return of the purse was a permissive penalty rather than a mandatory penalty because the word “shall” sometimes means “may.”
{44} In the event a test sample analysis from a race horse “result[s] in a violation of paragraph (B)(1) * * * of this rule, the horse shall be disqualified in accordance with
{45} Appellant does not argue that the Commission lacked the authority to order the return of the purse as a penalty; rather, appellant argues “shall” means “may” in this situation and had the Stewards and the hearing officer construed the return of the purse as a discretionary penalty, they would have voted not to order the return of the purse in this case.
{46} Because loss of the purse is undoubtedly within the range of penalties allowed by the Commission‘s rules and the Commission has the discretion to impose said penalty, the Commission‘s decision as to penalty cannot be disturbed on appeal if it is supported by reliable, probative, and substantial evidence. Belcher at ¶ 18 citing FOE Aerie 2177 Greenville v. Ohio State Liquor Control Comm., 10th Dist. No. 01AP-1330, 2002-Ohio-4441, ¶ 28.
{47} We also note that to the extent appellant argues the Commission‘s decision is arbitrary because of the nature of Ranitidine as therapeutic rather than performance-enhancing, “this kind of inquiry is more properly addressed to the rulemaking authority of the Commission” rather than to this court on appeal. Roberson v. Ohio State Racing Comm., 10th Dist. No. 03AP-480, 2004-Ohio-127, ¶ 17.
{48} Where, as here, the penalty imposed by the Commission is within the range of permitted sanctions, this court cannot conclude the common pleas court erred in affirming the Commission‘s order with regard to penalty. Id. at ¶ 20 (holding that when “the penalty selected by the Commission was within the range of sanctions permitted, * * * this court does not have the authority to modify that decision if the Commission‘s decision is supported by reliable, probative and substantial evidence and is supported by law“), citing Belcher at ¶ 18 and 19, and Henry‘s Cafe, Inc. v. Bd. of Liquor Control, 170 Ohio St. 233 (1959).
{49} Appellant‘s arguments as to insufficient notice, procedural irregularities, and the permissive or mandatory nature of the penalty imposed lack merit. Accordingly, we overrule appellant‘s first assignment of error.
{50} In his third and final assignment of error, appellant argues the common pleas court erred when it determined the Commission has the authority to promulgate a rule assessing thе costs of an administrative hearing to a licensee.
{51} Appellant contends the Commission lacks the authority to impose such costs as it is outside the authority the General Assembly granted to the Commission. A challenge to an administrative agency‘s rulemaking authority is a question of law and, therefore, we exercise de novo review. Vargas v. State Med. Bd. of Ohio, 10th Dist. No. 11AP-872, 2012-Ohio-2735, ¶ 8; Ohio Historical Society at 471.
{52} “The purpose of administrative rule-making is to facilitate the administrative agency‘s placing into effect the policy declared by the General Assembly in the statutes to be administered by the agency. In other words, administrative agency rules are an administrative means for the accomplishment of a legislative end.” Nelson v. Mohr, 10th Dist. No. 13AP-130, 2013-Ohio-4506, ¶ 14, citing Carroll v. Dept. of Adm. Servs., 10 Ohio App.3d 108, 110 (10th Dist.1983). Administrаtive rules cannot add or subtract from the legislative enactment. Id., citing Cent. Ohio Joint Vocational School Dist. Bd. of Edn. v. Admr., Bur. of Emp. Servs., 21 Ohio St.3d 5, 10 (1986). Additionally, administrative rules cannot exceed the rulemaking authority delegated by the General Assembly. Id., citing Sterling Drug, Inc. v. Wickham, 63 Ohio St.2d 16, 19 (1980).
{53} Under
{54} In construing a grant of administrative power from a legislative body, both the intention of that grant of power and the extent of the grant must be clear, and, if there is doubt, the doubt must be resolved against the grant of power. League of United Latin Am. Citizens v. Kasich, 10th Dist. No. 10AP-639, 2012-Ohio-947, ¶ 48, citing D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, ¶ 40.
{55} Here, appellant points to the plain language of
{56} The General Assembly has expressly authorized the recovery of costs of an administrative hearing by the administrative agency in specific situations. For example,
{57} Similarly,
{58} Both
{59} Instead, the structure created by the General Assembly under
{60} In response, the Commission asserts because the General Assembly delegated it the power to issue rulings against licensees, the delegation incorporates the power to asses the costs of the hearing. Thus, the Commission argues, the costs of an appeal are part of the penalty of violating a rule, and the Commission has the authority to assess penalties to rule breakers. We find the Commission‘s argument unconvincing.
{61}
{ 62} The Commission further argues that, as a matter of general policy, costs are a part of every adjudicatory system, relying on both
{64} Second,
{65} Thus, because the General Assembly chose not to expressly grant the Commission the authority to recover costs and it has demonstrated its willingness to do so for other administrative agencies, we will not read
{66} Accordingly, we sustain appellant‘s third assignment of error.
VII. Disposition
{67} The common pleas court did not abuse its discretion in affirming the Commission‘s order that appellant violated
Judgment affirmed in part and reversed in part; cause remanded with instructions.
CONNOR and O‘GRADY, JJ., concur.