Kentucky may soon alter its language surrounding the absolute insurer rule for trainers accused of rule violations, per a series of rule changes approved in a special meeting of the Kentucky Horse Racing Commission Tuesday.
Commissioners approved an edit to virtually all the state's horse racing regulations as part of Gov. Matt Bevin's Red Tape Reduction Initiative, which is aimed at simplifying state regulations and reducing legal burdens on small business owners. The majority of the changes approved by the commission Tuesday removed outdated language and eliminated redundant passages. John Forgy, general counsel for the commission, said he believed the months-long project shortened the total length of horse racing regulations in the state by numerous pages.
The primary substantive change made in the rewrite was new language specifying trainers' ability to present evidence in their own defense in cases of medication violations. New language will specify trainers are responsible for horses (and any drugs found therein) “in absence of substantial evidence to the contrary.” Penalty guidelines will include the preface “absent mitigating circumstances…”
Forgy said stewards and commissioners are already consider mitigating circumstances when assigning penalties, but this language will make this procedure more clear.
“As it exists on the books, it does read as an absolute insurer liability rule,” said Forgy, who noted an earlier version of the rule did spell out the trainer's right to offer evidence exonerating himself from medication findings. “What we wanted to do was build that concept back into the regulatory scheme.”
“The key phrase there is 'in absence of substantial evidence to the contrary. This is a legal method by which the trainer could come forward with substantial evidence and the trainer would be able to escape penalties for the situation. What's substantial evidence? Well, it's not something that can be pinned down in black and white exactly … it depends on multiple circumstances.”
The change comes in response to an ongoing legal case between the Kentucky commission and trainer H. Graham Motion over a methocarbamol positive from 2015. Last summer, Franklin Circuit Court judge Thomas Wingate said in a ruling the absolute insurer rule violates Kentucky's state constitution because it doesn't allow the trainer due process. The commission has appealed that ruling.
The absolute insurer rule, which is present in most states in one form or another, gives the trainer responsibility for any substance found inside one of his horses, even if the trainer did not administer the substance himself. The rule was designed to prevent trainers avoiding penalty for drug overages by shifting blame to their employees.
An additional rule change in the medication section specified prohibited or regulated substances include those “foreign to the horse” rather than the previous language, which described the substances as being those which had an impact on various body systems of the horse. The old language, Forgy said, stuck stewards with the confusing task of deciding what impact a given medication did or didn't have on a horse's body on race day.
In an earlier meeting of the commission's Welfare and Safety Committee, commissioners heard a presentation from Dr. Mick Peterson, Director of Ag Equine Programs at the University of Kentucky and renowned expert on racing surfaces. Peterson explained the challenges of assessing and maintaining surfaces for optimum safety and performance, as well as the importance of gathering track data season over season. Peterson is on the board of the Racing Surfaces Testing Laboratory, a 501(c)3 nonprofit group which performs this work in cooperation with North American racetracks. Currently, Keeneland, Churchill Downs, and Turfway Park work with the Racing Surfaces Testing Laboratory to monitor their surfaces; committee members agreed they will reach out to Ellis Park and Kentucky Downs to encourage those tracks to begin partnering with the program.
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