05/21/2013 2:29PM

Kentucky commissioner agrees forfeiting purse not intended to be mandatory

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LEXINGTON, Ky. – The executive director of the Kentucky Horse Racing Commission testified on Tuesday that the commission did not initially intend to make purse forfeiture a mandatory penalty when a horse tested positive for a certain class of drugs.

The statement by KHRC executive director John Ward came at the end of a 1 1/2-day hearing at the KHRC offices into an appeal of the disqualification of the filly Sign from the Grade 2, $168,150 Pocahontas Stakes at Churchill Downs last year. The appeal was lodged by the owners of the filly, Claiborne Farm and Adele Dilschneider.

As part of the appeal, attorneys for Sign’s connections had argued that stewards had improperly ordered the redistribution of the Pocahontas purse after Sign’s post-race sample tested above the allowable limit for the medication methocarbamol, a commonly administered muscle relaxant. The lead attorney, David Royse, had argued simultaneously that the stewards were not required to order the redistribution of the purse under Kentucky statute, contrary to testimony, and that the commission had not intended to require purse forfeiture for positives in methocarbamol’s drug class when it approved new rules last year revising the state’s drug penalties.

After calling Ward as his last witness, Royse methodically walked Ward through the process by which the new rules were approved and subsequently amended last year. After producing a July 9 document sent by the KHRC to the state’s rule-approving body indicating that the KHRC wished to strike the language “some or all of” from a new rule approved by the commission in April that laid out the penalties for drug positives, Royse asked if Ward believed the commission had voted to make purse forfeiture discretionary, rather than mandatory, for methocarbamol positives and other Class C drugs during its April deliberations over the rules.

“Probably so, yes,” Ward said.

Though Royse said after the hearing that he was not “pre-supposing” the conclusions that will be made by the appeal’s hearing officer, he expressed confidence that he had made his case for striking down the portion of the law that appears to require purse forfeiture for Class C positives.

“The executive director has admitted that he was mistaken about what he actually approved,” Royse said. “I don’t think there can now be any question about the purse forfeiture.”

Robert Layton, the hearing officer in the appeal, said that he would issue an opinion in the appeal “no later than July 3.”

If the requirement for purse forfeiture is struck down, the racing commission will likely have to amend its statutes on penalties, at least in the case of Class C drugs. The statutes were revised last year as part of a larger effort to toughen the state’s penalties and establish new threshold levels for therapeutic medications.

The brunt of the appeal during 10 hours of testimony focused on the circumstances surrounding Sign’s positive test. The filly’s trainer, Al Stall, and her veterinarian, Dr. Kevin Dunleavy, testified that Sign had never been administered methocarbamol prior to her start in the Pocahontas. But when asked to explain how methocarbamol appeared in her post-race sample, both said that they had no answer.

Another horse trained by Stall, Upon Reflection, tested above the legal limit for methocarbamol 10 days after Sign’s positive test, also after a race at Churchill. Following the second positive test, Stall and Dunleavy said that they removed the drug from the barn and stopped administering it to Stall’s horses.

For the first positive test, Stall was fined $250. He was given a 10-day suspension following the second positive.

Layton indicated after the hearing that he may not issue an opinion on the fines and suspensions for the positive tests.

“My recommended order will not necessarily touch on every piece of evidence presented during the hearing,” he said.