Legg v. Oregon Racing Commission , 89 Or. App. 198 ( 1988 )

RICHARDSON, P. J.

Petitioners, the owners and trainers of three racing greyhound dogs, seek review of an amended final order from the Oregon Racing Commission. We affirm.

Petitioners’ greyhounds raced at Multnomah Kennel Club (MKC) in different races on different dates. Routine urine tests performed after each race detected the presence of a sulfonamide in each of the dogs involved. After a hearing, the Commission affirmed MKC’s Board of Judges and held that sulfonamides are “drugs” within the meaning of ORS 462.010(7), that the three dogs raced in violation of ORS 462.415(1) (b), because they had a “drug” in their systems, and that the dogs’ trainers violated ORS 462.415(3) by allowing the dogs to race while they had a drug in their systems. The penalties imposed were forfeiture of the purses won by two of the dogs (the third finished out of the money), a ten-day suspension of the dogs and their trainers and a $150 fine for the trainer whose dog finished out of the money.

Petitioners first contend that the Commission erred in holding that sulfonamides are “drugs” within the meaning of ORS 462.010(7):

“ ‘Drug’ means any narcotic, sedative, anesthetic, analgesic, drug or other medication of any kind or description intended for use in any manner — directly or indirectly, internally or externally — in the diagnosis, treatment, mitigation or cure of injury or disease or for use in the prevention of disease, which could affect, in any manner, the racing condition or performance of an animal as a depressant, stimulant, local anesthetic, analgesic, sedative or otherwise. The term also includes substances (other than foods) intended to affect the structure or any function of the body of the animal and all substances affecting the central nervous system, respiratory system, or blood pressure of any animal other than vitamins or supplemental feeds. Also specifically included is any identified substance which can affect or interfere with the true and accurate testing and analysis of blood, saliva, urine or other samples taken from racing animals.”

The Commission found, inter alia:

“18. Sulfonamides are used with greyhounds to help cure various respiratory and gastro-intestinal problems. The treatment is usually at least several days, and the effect of sulfonamides is not immediate.

“19. Sulfonamides can affect the respiratory system. Treatment over a period of time of a greyhound with sulfonamides for a respiratory problem can restore the greyhound’s respiratory system to a healthy state, or at least make the greyhound less sick. A greyhound with a healthy respiratory system will generally perform better than if it had a respiratory illness. However, because sulfonamides take effect over a period of time, administering a sulfonamide to a greyhound just prior to a race will not affect the greyhound’s performance in that race. A sulfonamide can only affect the racing performance of a greyhound by improving the greyhound’s health. The sulfonamide itself will not make the greyhound run faster or slower.”

The Commission concluded that sulfonamides are “drugs” within the meaning of ORS 462.010(7), in part because sulfonamides are substances that “can affect the respiratory system of a greyhound.” The undisputed evidence is that sulfonamides can be used to treat and cure bacterial infections in the respiratory systems of dogs. The Commission’s findings in that regard are “supported by substantial evidence in the record.” ORS 183.482(8)(c). It follows that sulfonamides fall within the category of “all substances affecting the * * * respiratory system * * * of any animal * * and sulfonamides are therefore “drugs” within the meaning of ORS 462.010(7).

Petitioners next contend that the Commission abused its discretion and acted inconsistently with its prior practice in failing to adopt a rule under ORS 462.415(5) allowing small or trace amounts of sulfonamides to be present in a dog’s system during a race.¹ The contention has no merit. ORS 462.415(5) states that the Commission “may, by rule, adopt a medication program * * * that it finds to be in the best interest of racing.” That statute does not obligate it to adopt a rule regarding any medication. The fact that the Commission has promulgated rules allowing limited use of two drugs dissimilar to sulfonamides² does not amount to anything as significant as a “prior practice” under ORS 183.482(8)(b)(B).

Petitioners’ final contention is that the Commission erred in fining the losing trainer $150. Under ORS 462.405(4), the Commission has discretion in imposing sanctions for racing violations. It is a racing violation for an animal to participate in a race if it has a “drug,” as defined by ORS 462.010(7), in its system on race day. ORS 462.415(1)(b). Under ORS 462.415(3), a trainer is strictly liable for the condition of an animal entered in a race. The fine was imposed on the trainer for allowing a greyhound to race with a sulfonamide, or “drug,” in its system. The fine was within statutory limits. ORS 462.405(1)(a).

Affirmed.

1 Petitioners apparently rely on ORS 183.482(8)(b)(B), which authorizes us to remand an order to the agency if we hold that its exercise of discretion is

“inconsistent with * * * a prior agency practice, if the inconsistency is not explained by the agency * *

2 The record is devoid of any evidence that indicates or suggests any similarities between the two drugs and sulfonamides.