FROM FRANKLIN CIRCUIT COURT HONORABLE THOMAS D. WINGATE,
JUDGE ACTION NO. 16-CI-01195
FOR APPELLANT: Robert M. Watt, III Steven B. Loy Monica H.
Braun Lexington, Kentucky John L. Forgy Kentucky Horse Racing
Commission Lexington, Kentucky Barry L. Dunn Carmine G.
Iaccarino Public Protection Cabinet Frankfort, Kentucky
AND ORAL ARGUMENT FOR APPELLEE H. GRAHAM MOTION: W. Craig
Robertson, III Lexington, Kentucky
FOR APPELLEE GEORGE STRAWBRIDGE, JR.: Joel B. Turner Griffin
Terry Sumner A. Thomas Sturgeon, III Louisville, Kentucky
ARGUMENT FOR APPELLANT: Steven B. Loy Lexington, Kentucky
ARGUMENT FOR APPELLEE GEORGE STRAWBERRY, JR.: Griffin Terry
Sumner Louisville, Kentucky
BEFORE: COMBS, D. LAMBERT AND SMALLWOOD,  JUDGES.
Kentucky Horse Racing Commission (hereinafter referred to as
the Commission) appeals from an order of the Franklin Circuit
Court which overturned penalties imposed upon H. Graham
Motion and George Strawbridge, Jr. The circuit court held
that certain regulations propounded by the Commission were
unconstitutional and that the Commission acted arbitrarily
when it imposed the sanctions against Appellees. In its
appeal, the Commission argues that the regulations were
constitutional and properly applied. The Commission also
claims that the circuit court was without jurisdiction to
hear Appellees' appeal because they failed to perfect
said appeal. We find that the circuit court's ruling as
to jurisdiction was proper and affirm, but the court's
rulings as to the regulations were erroneous and we reverse
as to those issues.
April 24, 2015, Kitten's Point, a thoroughbred filly
trained by Motion and owned by Strawbridge, won the Bewitch
Stakes at Keeneland. The horse won a purse of $90, 000. After
the race, all participating horses underwent drug screening.
The drug screening on Kitten's Point indicated that the
horse had 2.9 nanograms per milliliter (ng/ml) of
methocarbamol in its blood. This drug is known to help with
muscle cramping. By regulations, the Commission permits no
more than 1 ng/ml to be in a horse's blood at the time of
a race. It is undisputed that Appellees had given
methocarbamol to Kitten's Point for months prior to the
race, but had stopped giving the medication to the horse at
least seven days prior to the race.
Kitten's Point's positive test for methocarbamol, the
Commission Stewards entered an order finding that Appellees
had violated two provisions of the Kentucky Administrative
Regulations (KAR): 810 KAR 1:018, Section 2(2)(c) and 810 KAR
1:018, Section 2(3). Both of these sections concern drugs or
medications being found in a horse's system during a
race. A hearing was held on the violations, and, as herein,
Appellees argued that the 1.0 ng/ml threshold was arbitrarily
low, there was no scientific basis for having the
methocarbamol threshold at that low level, and that it was
likely the methocarbamol entered Kitten's Point's
blood through environmental contamination. Multiple witnesses
testified, including veterinarians and experts knowledgeable
of the interaction of medications in horses.
hearing officer ultimately held that Appellees had violated
the regulations set forth by the Stewards and recommended
that the Commission suspend Motion's trainer's
license for five days, fine Motion $500, disqualify
Kitten's Point, and order Strawbridge to forfeit the $90,
000 purse. The Commission adopted the hearing officer's
recommended findings of fact, conclusions of law and order,
but declined to suspend Motion's trainer's license.
then appealed to the circuit court. The circuit court held
that a lack of scientific evidence evincing the propriety of
the 1.0 ng/ml threshold made the regulations at issue
unconstitutionally arbitrary and that the Commission acted in
an arbitrary and capricious manner in finding Appellees
violated the regulations. This appeal followed.
first address the Commission's argument that
Appellees' appeal to the circuit court should have been
dismissed. A party aggrieved by a final order of the
Commission "may appeal to the Franklin Circuit Court in
accordance with [Kentucky Revised Statute (KRS)] Chapter
13B." KRS 230.330. KRS 13B.140(1) states:
All final orders of an agency shall be subject to judicial
review in accordance with the provisions of this chapter. A
party shall institute an appeal by filing a petition in the
Circuit Court of venue, as provided in the agency's
enabling statutes, within thirty (30) days after the final
order of the agency is mailed or delivered by personal
service. If venue for appeal is not stated in the enabling
statutes, a party may appeal to Franklin Circuit Court or the
Circuit Court of the county in which the appealing party
resides or operates a place of business. Copies of the
petition shall be served by the petitioner upon the agency
and all parties of record. The petition shall include the
names and addresses of all parties to the proceeding and the
agency involved, and a statement of the grounds on which the
review is requested. The petition shall be accompanied by a
copy of the final order.
undisputed that Appellees filed their petition for appeal
with the circuit court before the 30-day deadline set forth
above. It is also undisputed that Appellees served a copy of
the petition on Marc Guilfoil, the Commission's Executive
Director; the Attorney General of Kentucky; and Steven Loy
and Robert Watt, the Commission's counsel in the
administrative proceeding. Summons was also issued in the
names of Loy and Watt, but they were never served.
Commission eventually moved to dismiss the action because
they claimed Appellees had failed to perfect their appeal
within the 30-day timeframe having failed to have a summons
issued in the name of the Attorney General pursuant to
Kentucky Rule of Civil Procedure (CR) 4.04(6). Appellees
argued that they were not required to issue or serve a
summons on anyone because KRS 13B.140(1) sets forth the
appeal requirements and does not mention the issuance of a
summons. Appellees also served a summons on the Attorney
General after the Commission had filed its motion to dismiss.
The circuit court denied the Commission's motion, finding
that Appellees commenced the action in good faith.
issues are questions of law and reviewed de novo.
Appalachian Reg'l Healthcare, Inc. v. Coleman,
239 S.W.3d 49, 54 (Ky. 2007). We agree with the circuit court
as to this issue. Appellees continue to argue that a summons
was not required because it is not mentioned in KRS 13B.140;
however, we disagree. CR 1(2) states that the civil rules
"govern procedure and practice in all actions of a civil
nature in the Court of Justice except for special statutory
proceedings, in which the procedural requirements of the
statute shall prevail over any inconsistent procedures set
forth in the Rules."
In Transportation Cabinet, Department of Highways v. City
of Campbellsville, 740 S.W.2d 162, 164 (Ky. App. 1987),
the Court of Appeals recognized that "[a]n appeal to the
circuit court from an order of an administrative agency is
not a true appeal but rather an original action." It
logically follows that the procedural steps required to
"take" an appeal from an administrative agency
action are precisely the same steps required to commence any
other original action in the circuit court. The rules that
determine when a civil action commences, therefore, determine
when an appeal of an administrative action has been taken.
CR 3.01 provides that "[a] civil action is commenced by
the filing of a complaint with the court and the issuance of
a summons or warning order thereon in good faith."
Similarly, KRS 413.250 provides that "[a civil] action
shall be deemed to commence on the date of the first summons
or process issued in good faith from the court having
jurisdiction of the cause of action." Furthermore,
"[i]f the action is commenced by the filing of the
petition and the issuance of summons, and only one time
period is specified, it must follow that both actions [that
is, the filing of the petition or other initial
pleading and the issuance of the summons] must be
taken within the period of time provided in the
statute." Metro Medical Imaging, LLC v.
Commonwealth, 173 S.W.3d 916, 918 (Ky. App. 2005).
Isaacs v. Caldwell, 530 S.W.3d 449, 454 (Ky. 2017)
(emphasis in original).
that even though KRS 13B.140 does not mention summonses, the
summons requirement set forth in the civil rules is not
inconsistent with the statutory procedures and is required to
commence an action in the circuit court. This Court could
find no published case law dealing with summonses and KRS
13B.140; however, we did find a number of unpublished cases
that hold as we do in this case. See Guardian Angel
Staffing Agency, Inc. v. Commonwealth, No.
2014-CA-001387-MR, 2015 WL 8528344 (Ky. App. Dec. 11, 2015);
Dixon v. Bd. of Educ. of Harlan Cty., No.
2009-CA-000941-MR, 2011 WL 43230 (Ky. App. Jan. 7, 2011);
Davenport v. Norsworthy, No. 2002-CA-000903-MR, 2003
WL 21714085 (Ky. App. July 25, 2003); Adkins v. Justice
Cabinet, No. 2002-CA-000766-MR, 2003 WL 2004504 (Ky.
App. May 2, 2003).
though we have rejected Appellees' argument that a
summons was not required, we still find that the circuit
court correctly allowed the case to proceed because the case
was commenced in good faith. The Commission is correct that
Appellees should have served a summons upon the Attorney
General. CR 4.04(6) requires that "[s]ervice shall be
made upon the Commonwealth or any agency thereof by serving
the attorney general or any assistant attorney general."
However, CR 3.01 does not require a summons be flawlessly
issued, only that it be issued in good faith. This means that
errors or flaws in the issuance and service of a summons are
not fatal to a cause of action. See Arlinghaus Builders,
Inc. v. Kentucky Pub. Serv. Comm'n, 142 S.W.3d 693
(Ky. App. 2003).
the Commission's final order was entered on October 11,
2016. Appellees filed their appeal with the circuit court on
November 4, 2016, and summonses were issued, but never served
on the Commission's counsel. A copy of the appeal was
sent to the Attorney General and the Commission's
Executive Director on November 7, 2016. The Commission then
filed its motion to dismiss on November 23, 2016. Appellees
had a summons issued to the Attorney General on December 7,
2016, and it was received on December 14, 2016.
that the circumstances of this case indicate that Appellees
commenced this action in good faith. Good faith has been
something less than perfection or complete accuracy. Above
all, it means not to take advantage of, not to deceive, not
to be underhanded. Black's Law Dictionary states on this
point: 'Good faith consists in an honest intention to
abstain from taking any unconscientious advantage of another,
even through the forms or technicalities of law, together
with an absence of all ...