Judge leaning toward granting Umarov restraining order against suspension

FRANKFORT, Ky. – A Kentucky circuit court judge said on Wednesday that he is likely to issue a temporary restraining order that would prevent the Kentucky Horse Racing Commission from enforcing a 10-year ban on the owner-trainer Otabek Umarov, citing his concern that Umarov will be unable to earn a living as he awaits a full appeal of the sanction.

Judge Phillip Shepherd of Franklin Circuit Court in Frankfort said after a 40-minute hearing early Wednesday morning that he planned to issue his ruling in a “day or two.” But he strongly suggested in comments prior to the end of the hearing that he would ultimately issue the restraining order, at least until “a fuller hearing on the need for it” is held, perhaps in his own court, Shepherd said.

“I have to say I have a concern about the penalty being in effect before Mr. Umarov has his day in court,” Shepherd said.

Umarov was banned by the racing commission near the end of May after he refused to allow one of his horses stabled at Churchill Downs to be sampled for drug testing, and then, according to the state stewards, secretly ordered a stable employee to remove the horse from the grounds while in discussions with commission personnel who were attempting to resolve the matter.

Umarov appealed the commission’s sanction and requested a stay of the ban until his appeal is heard. The KHRC’s executive director, Marc Guilfoil, rejected the stay, as did the entire racing commission last week in a unanimous vote. That led Umarov to the civil courts to seek an injunction against the commission ban.

While the issuance of a temporary restraining order would be a legal setback for the commission, it may have little impact on Umarov’s ability to return to racing. Shortly after the incident at Churchill, the track issued an order of ejection, and Umarov is not currently allowed on the track’s grounds. Ejection orders are typically honored by other racetracks in a system known as reciprocity.

Civil courts typically take a dim view of state agencies enforcing harsh penalties against a licensee without the benefit of a full evidentiary hearing, as Shepherd noted in his remarks from the bench. However, courts have generally upheld the rights of private companies in determining whether they can ban a person from the premises, as long as the ban is not discriminatory.

Justin Fowles, the attorney for Umarov, said after the hearing that he is still “considering our options” in regards to the ejection order issued by Churchill.

During the hearing, John Forgy, the general counsel for the KHRC, noted that the commission rarely denies a stay of a suspension when it is requested, citing due-process concerns of licensees. However, Forgy said Umarov’s case “confronted us with a very severe set of violations,” noting also that a search of Umarov’s vehicle on the day of the incident turned up four loaded syringes. It is illegal in racing jurisdictions for a trainer to possess syringes.

According to legal filings from Umarov’s counsel, the syringes contained doses of vitamin B-12, vitamin B-1, a potassium supplement, and sarapin, an herbal supplement derived from the pitcher plant that is marketed by Internet suppliers as a painkiller. While none of those substances is illegal per se, it would be illegal to administer any of the substances on race day under any state’s racing rules.

Sarapin, which can go by a number of spellings, has been implicated in illegal race-day administrations in both horse racing and performance-horse events over the past 10 years. Though some horse-racing authorities have attempted to fund studies that would detect sarapin in post-race tests, the funding efforts have been dampened by scientific studies that have failed to demonstrate that the substance has any painkilling effect on humans or horses.