McIlmurray v. Michigan Racing Commissioner

R. B. Burns, P.J. A single issue is presented by these two cases consolidated for purposes of appeal only. The cases arise out of different, though similar, factual circumstances. McIlmurray is the trainer of two harness race horses, “Leader’s Demon” and ”Happy Sharon”.

These horses ran and placed in separate pari-mutuel races at Wolverine Harness Raceway on April 8, 1981, and April 11, 1981. Post-race urinalysis of each horse revealed the presence of methenamine, a urinary tract disinfectant._ At a hearing before the Wolverine Harness Raceway stewards on April 17, 1981, Mcllmurray admitted that methenamine had been administered to both horses prior to the races. The stewards imposed fines of $200 for each horse and ordered redistribution of the purses. Mcllmurray appealed to the Michigan Racing Commissioner who, on August 21, 1981, affirmed the stewards’ decision.

Mcllmurray then appealed to the Ingham County Circuit Court, which affirmed the commissioner. Steven McMullen is the trainer of a race horse, "Varrick”. On May 2, 1981, McMullen asked Dr. Keeran, a veterinarian, to administer phenothiazine to the horse, which he did.

Phenothiazine is an animal worming medication. On May 4, 1981, Varrick raced in the fifth race at Wolverine Harness Raceway and placed first. However, a post-race urinalysis revealed the presence of phenothiazine and, as a result, the stewards revoked McMullen’s license for 30 days and ordered redistribution of the purse. McMullen appealed to the Michigan Racing Commissioner and at a hearing conducted June 17, 1981, evidence was introduced establishing that phenothiazine is not a stimulant, depressant, local anesthetic or tranquilizer and that the medication will not affect the racing condition of a horse.

The commissioner found that phenothiazine does have a reasonable therapeutic purpose, that being the removal of parasites from the body of the horse. By order of February 18, 1981, the commissioner reinstated McMullen’s license and instead imposed a $200 fine. The commissioner, however, affirmed the stewards’ order redistributing the purse on the grounds that phenothiazine is an unauthorized drug. McMullen appealed to the Ingham County Circuit Court, which affirmed. Both McIlmurray and McMullen appeal the circuit court orders affirming the Michigan Racing Commissioner, contending that neither methenamine nor phenothiazine constitute prohibited drugs under the rules and regulations of the Michigan Racing Commissioner.

The question here is whether the Michigan Racing Commissioner acted within the scope of his authority in imposing fines on each of the appellants and in ordering redistribution of the purses won by the appellants’ horses. Since a state agency has no inherent power, and since any authority it has must come from the Legislature, Blue Cross & Blue Shield of Michigan v Ins Comm’r, 403 Mich 399; 270 NW2d 845 (1978), this Court must look to relevant statutory and administrative law' in resolving the present issue. The Michigan Racing Law of 1959, MCL 431.31 et seq.; MSA 18.966(1) et seq., specifically prohibited the administration of "any hypnotic, narcotic, stimulant or depressant” to a racing horse within a period of 24 hours prior to a race in which that horse was entered. MCL 431.48; MSA 18.966(18). Pursuant to the 1959 act, the Michigan Racing Commissioner promulgated rules which further proscribed the administration of narcotic-based anesthetics, hypnotics, stimulants or depressants. 1979 AC, R 431.62.

Today, the Racing Law of 1959 has been superseded by the Racing Law of 1980, MCL 431.61 et seq.; MSA 18.966(31) et seq., which considerably expands the category of substances which may not be administered to horses prior to their entry in a race. Under the new act, the administration of all substances used in the diagnosis, cure, mitigation, treatment or prevention of disease in humans or other animals is prohibited unless otherwise authorized by the Racing Commissioner. MCL 431.83; MSA 18.966(53). Both methenamine and phenothiazine constitute drugs as that term is statutorily defined. The Michigan Racing Commissioner has been directed to promulgate rules and regulations specifying the conditions under which some substances may be administered.

Such rules have not yet been promulgated. Section 6(3) of the 1980 act, MCL 431.66(3); MSA 18.966(36)(3), specifically authorizes the Racing Commissioner to assess a penalty, including a fine of not more than $5,000, for violations of the 1980 act or rules promulgated thereunder. Thus, without even looking at administrative rule 431.62, the Racing Commissioner’s imposition of fines against these plaintiffs is authorized under the 1980 act if it can be found that plaintiffs violated any provision of the 1980 act. Section 23 of the 1980 act, MCL 431.83; MSA 18.966(53), prohibits the presence of drugs in horses during their participation in a race, except under limited circumstances.

Drugs that are stimulants or depressants are absolutely prohibited. Other drugs are prohibited unless authorized by the Racing Commissioner. The term "drug” includes all substances intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in humans or other animals. All parties agree that both methenamine and phenothiazine constitute a drug under the Racing Law of 1980 and that neither Mcllmurray nor McMullen obtained permission from the Racing Commissioner to administer the drugs found in their horses immediately after each race.

Section 11 of the 1980 act, MCL 431.71(4); MSA 18.966(41)(4), provides that trainers are responsible for and the absolute insurers of the condition of their horses entered into a race. This provision has been upheld as constitutional by a panel of this Court in Berry v Michigan Racing Comm’r, 116 Mich App 164; 321 NW2d 880 (1982). Both McIlmurray and McMullen are trainers. Thus, under MCL 431.83; MSA 18.966(53), the Racing Commissioner was acting within his authority when he imposed fines on plaintiffs for the administration of drugs prohibited under the 1980 act. A question remains as to whether the commissioner was also acting within the scope of his authority in ordering redistribution of the purses.

The answer is not straightforward. As already discussed, §6 of the Racing Law of 1980, MCL 431.66; MSA 18.966(36), authorizes the Racing Commissioner to impose a fine on trainers (among others) for violation of any provisions of the 1980 act. Section 6 specifically provides: “the racing commissioner may assess a penalty, including a fine * * (Emphasis added.) The term ”penalty” is not defined in the act.

However, § 2 of the act, MCL 431.62; MSA 18.966(32), provides that "[t]he racing commissioner shall have the powers and duties prescribed in this act and shall have the responsibility for administering the provisions of this act relating to licensing, enforcement, and regulation”. (Emphasis added.) In our opinion, the Racing Commissioner’s power to order purse redistribution is an incidental power necessary to the enforcement of the legislative intent in broadening the proscriptions against substances administered to racing horses just prior to races. Affirmed. R. E. Robinson, J., concurred.