Joseph Randall Hebert v. Louisiana State Racing Commission

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-419

JOSEPH RANDALL HEBERT

VERSUS

LOUISIANA STATE RACING ASSOCIATION

**********
WRIT APPLICATION FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 2012-4923
HONORABLE KENT D. SAVOIE, DISTRICT JUDGE
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
John D. Saunders, Judges.

WRIT DENIED.

Saunders, J., dissents and assigns written reasons.
Barry E. Roach
2917 Ryan Street
Lake Charles, LA 70601
(337) 433-8504
ATTORNEY FOR PLAINTIFF/APPELLANT
Joseph Randall Hebert

James D. “Buddy” Caldwell, Attorney General
Rhea P. Loney, Assistant Attorney General
320 No. Carrollton Avenue, Suite 2-B
New Orleans, LA 70119
(504) 483-4000
ATTORNEY FOR DEFENDANT/APPLICANT
Louisiana State Racing Commission

COOKS, Judge.

This writ application was filed by Defendant, the Louisiana State Racing

Association (hereafter the Commission), seeking supervisory writs from the district

court judgment allowing Plaintiff, Joseph Randall Hebert, the opportunity to

conduct discovery. The district court also remanded the matter to the Commission

for further proceedings and to consider any additional evidence gathered through

discovery. This writ was granted to the docket and argued before this Court. For

the following reasons, we find the trial court did not abuse its discretion in

allowing Hebert to conduct discovery and deny the Commission’s writ.

FACTS AND PROCEDURAL HISTORY
This matter involves a racehorse doping dispute. Hebert is a licensed

racehorse trainer in Louisiana. After winning their respective races during June of

2012, eight of Hebert’s horses tested positive for Benzonatate. According to the

Commission’s brief, the Board of Stewards held a hearing and concluded that

“each of the eight samples [from the horses] were positive for the presence of the

drug Benzonatate, classified as an ARCI [American Racing Commissioners

International] Category II Drug.” The Board of Stewards suspended Hebert for six

months and referred “the matter to the Louisiana State Racing Commission [for]

further action due to the opinion of the Board of Stewards that the penalty imposed

was insufficient.”

An administrative hearing was set for November 27, 2012. The Commission

alleges that on October 25, 2012, it sent Hebert a notice of the hearing in which he

was informed he could bring an attorney to the hearing, present evidence, and

subpoena witnesses.

Hebert appeared at the November hearing and testified. He admitted to

administering Benzonatate to each of his horses. He acknowledged Benzonatate,

as far as he understood, was a non-permissive medication pursuant to the rules of

2

racing. Hebert agreed to a three-year suspension of his license and to the

redistribution of the purse money for the pertinent races.

Despite his agreement to accept the suspension at the hearing, Hebert

appealed to the district court. Prior to the district court’s scheduled hearing date,

Hebert submitted a motion for leave to conduct additional discovery and present

additional evidence. A hearing on the motion was held, and Hebert argued based

on his investigation subsequent to the Commission hearing in November 2012, he

learned that Benzonatate was not listed as a prohibited drug by ARCI until July 24,

2012, which was subsequent to the date any of Hebert’s horses in question won its

race.

The Commission countered that all drugs not listed as permitted drugs were

prohibited, irrespective of whether they were specifically identified by ARCI. The

Commission also noted the state chemist could classify a drug regardless of

whether it was listed as a prohibited drug, and the state chemist in this case

concluded the drug found in all of Hebert’s horses was a prohibited Class II drug.

At the conclusion of the hearing, the district court allowed Hebert additional

time to conduct discovery and to take a deposition of the state chemist.

Subsequent to that decision, the Commission filed a writ application seeking the

reversal of the trial court’s ruling. That application was docketed and argued

before this court.

ANALYSIS

In his motion for leave to present additional evidence and conduct further

discovery, Hebert invoked the application of La.R.S. 49:964(E), which provides:

If, before the date set for hearing, application is made to the
court for leave to present additional evidence, and it is shown to the
satisfaction of the court that the additional evidence is material and
that there were good reasons for failure to present it in the proceeding
before the agency, the court may order that the additional evidence be
taken before the agency upon conditions determined by the court. The
agency may modify its findings and decision by reason of the

3

additional evidence and shall file that evidence and any modifications,
new findings, or decisions with the reviewing court.

The trial court found Hebert sustained his burden of proving that the

evidence he sought was material and that he had good reasons for his failure to

present evidence to the agency. In its writ application to this court, the

Commission alleges the trial court abused its discretion in finding Hebert sustained

the above burden of proving materiality and good reasons shown.

I. Materiality.

“Evidence is material if the proposition it tends to prove or disprove is a

matter in issue.” Matte v. La. Farm Bureau Cas. Ins. Co., 95-1308 (La.App. 3 Cir.

6/12/96), 676 So.2d 713, 715 (quoting State v. Rogers, 553 So.2d 453, 455

(La.1989)). Hebert argued to the trial court that whether or not Benzonatate was

listed as a prohibited drug at the time of Hebert’s violation was material to

resolution of this matter. He notes Benzonatate did not become a prohibited drug

by the ARCI until July 24, 2012, which was after Hebert’s horses tested positive

for that drug. Moreover, Hebert maintains he was unaware, until after the

November 27, 2012 hearing, of the information that ARCI did not list Benzonatate

as a Category II prohibited substance until after the alleged administering of that

drug to his horses. According to Hebert, there is a question as to what the

Commission knew regarding whether Benzonatate was a banned substance and

whether the information was concealed from him. Furthermore, it was

acknowledged by all parties that the penalty a violator is subject to is dependent on

the category a listed drug falls into. Thus, its classification is clearly material to

this case. We cannot say the trial court abused its discretion in determining that

the information as to whether or not ARCI listed Benzonatate as a prohibited

Category II drug at the time of the alleged infractions was material to the

resolution of this case.

4

II. Good Reasons Shown.

The primary argument made by the Commission in seeking to overturn the

trial court’s judgment allowing Hebert to conduct additional discovery is that

Hebert failed to demonstrate good reasons for his failure to present evidence at the

original agency hearing. The Commission maintains that Hebert had notice of the

hearing which advised him that he may have an attorney present, offer evidence,

and subpoena witnesses. We note the notice was not included in the submissions

to this court, and, therefore, we cannot verify what was written in it or when it was

sent. This notice was allegedly sent on October 25, 2012, and the hearing was held

one month later. The Commission submits that the Board of Stewards issued the

violations to Hebert during July of 2012. Thus, they maintain Hebert had

sufficient time to prepare his defenses and to discover the evidence he now seeks

to discover and introduce. The Commission also argues no good reasons as to why

Hebert did not do so have been provided.

In its brief to this court, the Commission acknowledges the following

argument that Hebert makes in regard to his failure to present or seek to present

evidence at the prior hearing:

After the fact, after the hearing, Mr. Hebert learned that Benzonatate,
the alleged drug that was allegedly in his horses’ blood system, was
not a prescribed or classified drug by the American Racing
Commissioners International until July 24, 2012.

The Commission maintains this argument alone does not constitute good reasons

for Hebert’s failure to present evidence at the November 27, 2012 hearing.

Specifically, it contends the “failure of Mr. Hebert to look into a potential defense

before the Commission meeting is not a valid reason for failing to present such

defense.”

Hebert counters that he had no reason to present any evidence at the hearing

regarding Benzonatate because he was not aware that the substance, at the time of

5

the alleged administration to the horses, was not a banned substance by the ARCI.

The following argument was presented by Hebert to the trial court:

[T]he reason he didn’t know [Benzonatate was not a banned substance
by the ARCI when it was administered] is because the Louisiana
[State] racing Commission is telling him. . . “[Y]ou’ve got a banned
substance.” They don’t have any rule promulgated that says
[B]enzonatate is a banned substance. There is nothing in the
Louisiana [State] Racing Commission guidelines that says that. So.
[Mr. Hebert] couldn’t have known until he came to me and we did
some research on [B]enzonatate.

It was acknowledged by the Commission that Benzonatate was in actuality

classified by the state chemist, Dr. Steven Barker, as a Category II prohibited drug

and not by ARCI. It was later adopted by ARCI as a Category II prohibited drug.

The Commission noted La.Admin.Code tit. 35, § 1.1795 provides that unknown or

unidentified drugs which are prohibited but not listed shall be appropriately

classified by the state chemist upon discovery or detection. Thus, the Commission

argues it was within the state chemist’s purview to classify Benzonatate as a

Category II prohibited drug. While this may be true, it does not change the fact

that Hebert was under the belief that Benzonatate was listed as a Category II drug

by the ARCI and not the state chemist. Hebert maintains if he was aware that the

drug was categorized by the state chemist, he would have certainly deposed Dr.

Barker.

It was acknowledged by both parties that the severity of any punishment for

administering a prohibited drug is determined by its classification. There was no

indication that Hebert was aware that the classification of Benzonatate as a

Category II drug was made by Dr. Barker rather than ARCI. As stated earlier, all

parties acknowledged that the penalty a violator is subject to is dependent on the

category a listed drug falls into. Because the penalty Hebert was facing was made

solely as a result of Dr. Barker’s classification of Benzonatate as a Category II

drug, it became apparent to Hebert after the Commission hearing that Dr. Barker’s

6

deposition was material to this case. Hebert’s reliance on the Commission’s

insistence that Benzonatate was an ARCI banned drug at the time of its

administering arguably demonstrates good cause for his failure to take Dr. Barker’s

deposition prior to the hearing.

The trial court at the hearing noted the confusion that existed in this case,

stating as follows:

Here is what we are going to do. I am hearing all kinds of stuff.
I am hearing that it might be this or it might be that or if it ain’t this,
it’s got to be that.

I am going to let [Hebert] go back – he is going to be able to
take the deposition of the chemist that he needs to take and just
develop whatever evidence that he needs to develop and represent it to
the racing commission so that they can make, in my opinion, a more
intelligent decision about all of the facts that should have been
presented to them at the time.

Considering the vast discretion placed in the trial court, we cannot say he

erred in finding Hebert presented good reasons for his failure to present the

evidence he now seeks at the original agency hearing. The record does indicate a

legitimate question as to what Hebert knew as to when, and even if, Benzonatate

was a banned substance at the time of the alleged use of the substance. The record

also establishes Hebert was unaware until after the original agency hearing that

Benzonatate’s classification as a Category II drug was made by Dr. Barker and not

ARCI. Therefore, we will affirm the trial court’s judgment and deny the

Commission’s writ.

WRIT DENIED.

7

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-419

JOSEPH RANDALL HEBERT

VERSUS

LOUISIANA STATE RACING COMMISSION

SAUNDERS, J., dissenting.

I respectfully dissent and would grant the commission’s writ. I find that the

trial court abused its discretion by allowing Hebert to modify the administrative

record and present additional evidence.

The record shows that Hebert had full knowledge that using Benzonatate on

his racehorses in order to gain an unfair advantage against his competitors was

prohibited by the racing commission. At his administrative hearing, Hebert

testified as follows:

Q. And you admit that you gave a drug, Benzonatate, to each of these
eight horses that I’m going to run through the dates on?

A. That is correct.

Q. And you admit that this was a nonpermissive medication pursuant to
the rules of racing, correct?

A. That’s correct.

Hebert admitted guilt at his administrative hearing and accepted a three-year

suspension and redistribution of the purses in connection with his use of

Benzonatate. Less than three months after making these admissions and freely

entering his plea, Hebert sought leave from the trial court to conduct additional

discovery and present additional evidence. He sought to argue that Benzonatate

was not included by name in the Association of Racing Commisioners

1

International, Inc.’s (“ARCI”) list of prohibited drugs until the day after his final

win.

Louisiana Revised Statutes 94:964(E) dictates that Hebert may only present

such evidence if “the additional evidence is material and . . . there were good

reasons for failure to present it in the proceeding before the agency.”

First, the evidence Hebert seeks to add is not material. The majority notes

that the category in which ARCI classifies a prohibited drug affects the penalty for

administering that drug. The majority suggests that because of this, whether or not

ARCI prohibited Benzonatate by name when Hebert used it is material. However,

La.Admin.Code tit. 35, § I.1795(C) provides in pertinent part that “[u]nknown or

unidentified drugs or substances which are prohibited but not listed shall be

appropriately classified by the state chemist upon discovery or detection.”

(Emphasis added.) Therefore, drugs may certainly be prohibited without being

listed, as was the case of Benzonatate at the time Hebert used it. In fact,

La.Admin.Code tit. 35, § I.1727 states, “No person shall administer, or cause or

knowingly permit to be administered, or connive at the administration of any drug

not permitted by Chapter 15 to any horse to be entered or entered for a race.”

Chapter 15 permits only two nonsteroidal/anti-inflammatory medications by name-

--Phenylbutazone and Oxyphenylbutazone---and six “bleeder” medications by

name, none of which are Benzonatate. La.Admin.Code til. 35, §§ I.1505, 1509.

Title 35 prohibits use of all other drugs at or near the track except as administered

by a licensed veterinarian. La.Admin.Code tit. 35, §§ I.1501, 1505. Furthermore,

La.Admin.Code tit. 35, § I.1717 states, “The use of a stimulant, depressant, or

anesthetic in a manner that might affect, or tend to affect, the racing performance

of a horse is prohibited.” The additional evidence that Hebert seeks in conducting

discovery regarding the state chemist’s classification of Benzonatate, and

2

regarding the timeline of events in connection with its listing, is therefore not

material.

Second, Hebert has presented no reason whatsoever for his failure to

discover this information, including his failure to take the deposition of the state’s

chemist prior to the proceeding before the agency. Hebert argues that since

Benzonatate was not listed as prohibited when he used it, he lacked notice that it

was prohibited. Hebert’s subjective knowledge of whether or not he was violating

a rule does not affect the application of La.R.S. 49:964(E), nor does it provide a

good reason shown for Hebert’s failure to conduct discovery. Notwithstanding the

fact that Hebert has already testified under oath that he believed the drug was

prohibited by the rules of racing, such a notice requirement does not apply to an

administrative case such as this.

Hebert argues that the additional evidence is material because he “did not

realize that he was being punished without just cause.” This discussion of Hebert’s

subjective knowledge implies a due process argument; however, I cannot agree

that this case involves constitutional rights. No man has a right to participate in the

highly regulated Louisiana race horse gaming industry; it is a privilege that may be

likened to operating a gaming establishment or driving on Louisiana highways. As

such, it is a privilege governed not by the notice requirement of the due process

clause, but instead is within the discretion of the administrative body charged with

regulating the activity---here, the commission. Mr. Hebert argues that he should

not be penalized because the penalty for using Benzonatate on his horses was not

yet established when he acted, as the drug was not yet classified at that time. This

argument may succeed if constitutional or criminal law were to apply in this case.

However, solely administrative law applies to this proceeding.

3

I would vote to grant the writ. Neither Mr. Hebert’s purported lack of

awareness that Benzonatate was a banned substance until after the race nor his

failure to conduct discovery provides sufficient justification under La.R.S.

49:964(E) for additional evidence to be allowed. Accordingly, I would grant the

writ.

4