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Licensees may recover fees from their regulatory agency if a Court determines the agency was not substantially justified in initiating the matter in controversy. When we prevail at Administrative Hearings or in Court, Graff & McGovern evaluates a case to determine if it is suitable to request fees from the agency. John Izzo did so in a recent case.

After prevailing in the Court of Common Pleas and the 10^th District Court of Appeals, a request for fees was made. The Ohio State Racing Commission was found to have violated its own rule as well as the DelBianco case from 2001. The Magistrate found and concluded that the Racing Commisison’s actions could not have been substantially justified because they were contrary to and not in accordance with law.

The law states that attorney fees are awarded in an amount not to exceed seventy-five dollars an hour unless a higher amount is approved by the Court. The Magistrate concluded that only someone with John Izzo’s knowledge, background and experience has the necessary working knowledge and full understanding of the ARCI’s uniform classification guidelines, the Racing Commission’s prohibited substance chart, the interplay between the two and how testing for new substances works, to appreciate and recognize the impact of the Tenth District Court of Appeals’ decision in DelBianco on the issues raised in this case. Therefore, on March 23, 2020, the Magistrate recommended attorney fees at the higher rate of $250.00 per hour. The total award was $13,128.00.

The results in this case are not typical, but it is a prime of example of why licensees and applicants should consult with Experts in Administrative Law, as certified by the Ohio State Bar Association. John Izzo is one of eight attorneys in Ohio certified as an expert in administrative agency law by the Ohio State Bar Association.

If you have any question about the Ohio State Racing Commission, any other state, local or federal agency, or how to challenge agency orders, you should consider contacting an attorney at Graff & McGovern. John Izzo of Graff & McGovern can be reached at 614-228-5800, extension 5, or johnizzo@grafflaw.com.

Prior Posting:

On September 26, 2019, the Tenth District Court of Appeals upheld a 2017 Common Pleas Decision in favor of our client, a standardbred trainer. The Appellate Court agreed with John Izzo that the Ohio State Racing Commission could not enforce a threshold against a trainer that had not been established according to state administrative law.

Quoting the Common Pleas Decision, the Appellate court said the provision stating that the Commission shall give due consideration to the ARCI guidelines obviously does not indicate that the Commission has, in fact, adopted the guidelines. For more information on the Appellate Court’s Decision, look for 2019-Ohio-3903.

Original Posting:

Graff & McGovern represented a Standardbred trainer accused by the Ohio State Racing Commission of racing a horse that exceeded the regulatory threshold of a dopamine metabolite. However, the Commission never established what the threshold was of the dopamine metabolite.

Judge Laurel Beatty Blunt agreed with Graff & McGovern that horsemen must be on notice as to what the regulatory threshold is for substances that naturally occur in horses, such as the dopamine metabolite. The Commission has a rule that states regulatory thresholds must be set by rule or order, and the Commission did neither for the dopamine metabolite. Instead, the Commission relied upon the Association of Racing Commissioners International (ARCI) to set and publish a threshold for the dopamine metabolite.

Judge Beatty Blunt found that the Racing Commission did not follow its own rule. As a result, she found in the trainer’s favor and REVERSED the Commission’s Order.

When dealing with administrative agencies, it is important to be familiar with the agency’s rules. In some instances, such as this case, the agency’s rules can be used against them.