# FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/15/2025 OSCAR NO. 614479 -PAGE Page 1 of 28 *PUBLIC *

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## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/15/2025 OSCAR NO. 614479 -PAGE Page 1 of 28 *PUBLIC *

PUBLIC
PUBLIC
UNITED
UNITED STATES
STATES OF
OF AMERICA
AMERICA
BEFORE
BEFORE THE
THE FEDERAL
FEDERAL TRADE
TRADE COMMISSION
COMMISSION
OFFICE
OFFICE OF
OF ADMINISTRATIVE
ADMINISTRATIVE LAW
LAW JUDGES
JUDGES
FTC
FTC DOCKET
DOCKET NO.
NO. D-9443
D-9443
ADMINISTRATIVE
ADMINISTRATIVE LAW
LAW JUDGE:
JUDGE:

HON.
HON. JAY
JAY L.
L. HIMES
HIMES

IN
IN THE
THE MATTER
MATTER OF:
OF:
DR.
DR. LARRY
LARRY OVERLY,
OVERLY, DVM
DVM

APPELLANT
APPELLANT

THE
THE AUTHORITY’S
AUTHORITY’S PROPOSED
PROPOSED FINDINGS
FINDINGS OF
OF FACT,
FACT, CONCLUSIONS
CONCLUSIONS OF
OF LAW,
LAW,
ORDER,
ORDER, AND
AND SUPPORTING
SUPPORTING LEGAL
LEGAL BRIEF
BRIEF

Comes
Comes now
now the
the Horseracing
Horseracing Integrity
Integrity and
and Safety
Safety Authority,
Authority, Inc.
Inc. (“HISA”
(“HISA” or
or the
the
“Authority”)
“Authority”) pursuant
pursuant to
to the
the Administrative
Administrative Law
Law Judge’s
Judge’s Order
Order on
on Application
Application for
for Review
Review and
and
Application
Application for
for Stay
Stay dated
dated November
November 20,
20, 2025,
2025, and
and submits
submits the
the following
following Proposed
Proposed Findings
Findings of
of
Fact,
Fact, Conclusions
Conclusions of
of Law,
Law, Order,
Order, and
and Supporting
Supporting Legal
Legal Brief.

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/15/2025 OSCAR NO. 614479 -PAGE Page 2 of 28 *PUBLIC *

PUBLIC
PUBLIC
CERTIFICATE
CERTIFICATE OF
OF SERVICE
SERVICE
Pursuant
Pursuant to
to Federal
Federal Trade
Trade Commission
Commission Rules
Rules of
of Practice
Practice 4.2(c)
4.2(c) and
and 4.4(b),
4.4(b), aa copy
copy of
of the
the
Authority’s Proposed
Authority’s
Proposed Findings
Findings of
of Fact,
Fact, Conclusions
Conclusions of
of Law,
Law, Order
Order and
and Supporting
Supporting Legal
Legal Brief
Brief is
is
being served
being
served on
on December
December 15,
15, 2025,
2025, via
via Administrative
Administrative E-File
E-File System
System and
and by
by emailing
emailing aa copy
copy
to:
to:
Hon.
Hon. Jay
Jay L.
L. Himes
Himes
Administrative
Administrative Law
Law Judge
Judge
Office
Office of
of Administrative
Administrative Law
Law Judges
Judges
Federal
Federal Trade
Trade Commission
Commission
600
NW
600 Pennsylvania
Pennsylvania Ave.
Ave. NW
Washington
Washington DC
DC 20580
20580
via
via e-mail
e-mail to
to Oalj@ftc.gov
Oalj@ftc.gov
and
and electronicfilings@ftc.gov
electronicfilings@ftc.gov
With
With aa hard
hard copy
copy to:
to:
Hon.
Jay
L.
Himes
Hon. Jay L. Himes
Administrative
Administrative Law
Law Judge
Judge
Office
Office of
of Administrative
Administrative Law
Law Judges
Judges
Federal
Federal Trade
Trade Commission
Commission
11 Bowling
Bowling Green,
Green, Room
Room 318
318
New York,
NY 10004
New
York, NY
10004

Howard
Howard L.
L. Jacobs
Jacobs
Law
Law Offices
Offices of
of Howard
Howard L.
L. Jacobs
Jacobs
31111
31111 Agoura
Agoura Rd.,
Rd., Suite
Suite 225
225
Westlake
Westlake Village,
Village, CA
CA 91361
91361
Telephone
Telephone (805)
(805) 418-9892
418-9892
Fax
Fax (805)
(805) 418-9899
418-9899
Via
Via email
email to
to howard.jacobs@athleteslawyer.com
howard.jacobs@athleteslawyer.com
George
George M.
M. Wallace
Wallace
215
North Marengo
215 North
Marengo Avenue,
Avenue, Third
Third Floor
Floor
Pasadena,
Pasadena, CA
CA 91101-1504
91101-1504
Telephone
Telephone (626)
(626) 844-677
844-677
Fax
Fax (626)
(626) 795-0353
795-0353
Via
Via email
email to
to gwallace@wbslaw.com
gwallace@wbslaw.com
Counsel
Counsel for
for the
the Appellant
Appellant

/s/
Bryan Beauman
Beauman
/s/ Bryan
Enforcement
Enforcement Counsel

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PUBLIC
PUBLIC
PROPOSED
PROPOSED FINDINGS
FINDINGS OF
OF FACT
FACT
I.
I.
1.
1.

Background
Background to
to the
the Charges
Charges

On
Appellant’s veterinary
On July
July 23,
23, 2024,
2024, HIWU
HIWU Investigators
Investigators conducted
conducted aa search
search of
of Appellant’s
veterinary truck
truck

(the
Alamitos Race
(the “Search”)
“Search”) at
at Los
Los Alamitos
Race Course
Course (“Los
(“Los Alamitos”).
Alamitos”).! 1
2.
2.

During
During the
the Search,
Search, HIWU
HIWU Investigators
Investigators discovered
discovered and
and seized
seized the
the following
following Banned
Banned

Substances:
Substances:
a.
a. Four
Four injectable
injectable vials
vials of
of Testosterone,
Testosterone, which
which is
is aa Category
Category S1
S1 Banned
Banned Substance.
Substance.
2
The
The vials
vials of
of Testosterone
Testosterone lacked
lacked any
any prescription
prescription information.
information.”

jar of
b.b. One
One jar
of Isoxsuprine
Isoxsuprine Powder,
Powder, which
which is
is aa Category
Category S0
SO Banned
Banned Substance.
Substance. There
There
was
jar; however,
was an
an Equine
Equine Sports
Sports Medicine
Medicine prescription
prescription label
label affixed
affixed to
to the
the jar;
however, the
the
label
label lacked
lacked any
any date
date prescribed,
prescribed, horse,
horse, or
or Trainer
Trainer information.
information. The
The label
label also
also listed
listed
aa use-by
use-by date
date of
of 07/09/2023.
07/09/2023. 3
3.
3.

On
Notice letter
On October
October 17,
17, 2024,
2024, HIWU
HIWU sent
sent an
an Equine
Equine Anti-Doping
Anti-Doping Notice
letter to
to Appellant,
Appellant,

informing
informing him
him that
that he
he had
had been
been found
found in
in Possession
Possession of
of two
two (2)
(2) Banned
Banned Substances,
Substances, and
and this
this may
may
result
result in
in Anti-Doping
Anti-Doping Rule
Rule Violations
Violations (“ADRVs”).
(“ADRVs”). A
A Provisional
Provisional Suspension
Suspension was
was imposed
imposed on
on
4
Appellant,
November 4,
Appellant, effective
effective October
October 17,
17, 2024,
2024, which
which was
was subsequently
subsequently lifted
lifted on
on November
4, 2024.
2024.4

4.
4.

On
November 4,
On November
4, 2024,
2024, HIWU
HIWU charged
charged Dr.
Dr. Overly
Overly with
with two
two ADRVs
ADRVs for
for Possession
Possession of
of

Testosterone
Testosterone and
and Isoxsuprine
Isoxsuprine under
under ADMC
ADMC Program
Program Rule
Rule 3214(a)
3214(a) (the
(the “Possession
“Possession Rule”).
Rule”).° 5

1

' Uncontested
Uncontested Stipulation
Stipulation of
of Facts
Facts (“USF”)
(‘USF”) 1,
1, HISA
HISA Appeal
Appeal Book
Book (“AB”)
(“AB”) Tab
Tab 10,
10, p
p 1119.
1119.
USF
3b,
AB
Tab
10,
p
1120.
2 USF 3b, AB Tab 10, p 1120.
3
USF 3a,
3 USF
3a, AB
AB Tab
Tab 10,
10, p
p 1119-1120.
1119-1120.
USF 7,
44 USF
7, AB
AB Tab
Tab 10,
10, p
p 1120-1121.
1120-1121.
5
USF 8,
5 USF
8, AB
AB Tab
Tab 10,
10, p
p 1121.
1121.
2

3

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II.
5.

Evidence on Testosterone

Appellant produced no records to show that he had ever administered Testosterone to a

non-Covered Horse at Los Alamitos.6
6.

HIWU’s veterinary expert, Dr. Dionne Benson, opined that it was unlikely Appellant would

treat any non-Covered Horses with Testosterone at Los Alamitos because such treatment would
result in the horse being placed on a “Vets’ List” and precluded from racing for six months under
California Horse Racing Board (“CHRB”) Regulations.7
7.

When asked why he possessed Testosterone during the Search, Appellant did not tell

Investigator Bennett that Testosterone was needed for his non-Covered practice. Instead, Appellant
told Investigators that the Testosterone was for personal use.8
8.

At the hearing, Appellant changed his story and testified that he used Testosterone in his

off-track practice for a horse named Cosmo. Cosmo is owned by Appellant’s veterinary technician,
Jessica Ingram, with whom Appellant has a previously undisclosed romantic relationship.9
9.

To substantiate Appellant’s treatment of Cosmo, Appellant produced: (i) three deficient

DEA treatment logs (together, the “Treatment Logs”), which documented Testosterone
administrations on 7/23/23, 9/20/23, 3/1/24 and 7/30/24;10 and (ii) pharmacy invoices that failed
to match the lot numbers recorded in the Treatment Logs or provide a complete account as to when
the seized Testosterone was ordered.11

6

Cross-Examination of Cassandra Corbett (“Corbett Cross”), AB Tab 30, p 6052; Final Decision, ¶7.5.6.a.
Examination-in-Chief of Dr. Dionne Benson (“Benson Chief”) AB Tab 30, p 6372; Final Decision, ¶7.5.6.a.
8
Examination-in-Chief of Brian Bennett (“Bennett Chief”) AB Tab 30, p 5844-5846; Final Decision, ¶7.5.6.
9
Cross-Examination of Dr. Overly (“Overly Cross”), AB Tab 30, p 6281-6283; Counsel and Arbitrator Comments,
AB Tab 30, p 6313-6318; Cross-Examination of Jessica Ingram (“Ingram Cross”), AB Tab 30, p 6350-6351; Final
Decision, ¶7.5.6.b.
10
Expert Report of Dr. Dionne Benson (“Benson Report”) at paras 7b, 24-28, AB Tab 15, p 2675-2676, 2681-2683;
Treatment Logs, Tab F to the Witness Statement of Brian Bennett (“Bennett Statement”), AB Tab 8, p 172-174; Final
Decision, ¶7.5.6.b.
11
Benson Report at para 30, AB Tab 15, p 2683-2684; Pharmacy Invoices, Tab F to the Bennett Statement, AB Tab 8,
p 169-171; Photos of Testosterone, Exhibit B to Notice Letter, AB Tab 8, p 113-116; Final Decision, ¶7.5.6.b.
7

4

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10.

Dr. Benson critiqued Dr. Overly’s records, noting that he failed to produce any veterinary

medical records that provide a diagnosis or medical rationale for treating Cosmo with
Testosterone.12 During cross-examination, Appellant stated for the first time that such records
exist, but he failed to explain this omission or introduce the records into evidence.13
11.

Even if accepted as authentic records, the Treatment Logs show that Appellant was not

scheduled to treat Cosmos on the day of the Search, but a week later, on July 30, 2024.14 At the
hearing, Appellant admitted that: (i) it was his practice to always go back to his clinic after
completing his treatments at Los Alamitos; (ii) his truck was unloaded and reloaded as necessary
before going out to see his other, off-track patients; and (iii) his truck was typically loaded and
unloaded/reloaded twice a day, five days a week.15 In light of these admissions, the Arbitrator
concluded that there was no need for Testosterone to be loaded onto Appellant’s truck a week
before his next purported appointment with Cosmo.16
III.
12.

Evidence on Isoxsuprine

Appellant produced no records to show that he had ever administered Isoxsuprine to a non-

Covered Horse, at Los Alamitos or off-track.17
13.

Dr. Benson testified that Isoxsuprine is a non-FDA approved drug that is banned at Los

Alamitos.18 Appellant also admitted that the Isoxsuprine could not be used on non-Covered Horses
at Los Alamitos.19

12

Benson Report at paras 7b, 11, 22, 23; AB Tab 15, p 2675-2676, 2677, 2680-2681; Benson Chief, AB Tab 30; p
6377-6378.
13
Overly Cross, AB Tab 30, p 6269-6270; Final Decision, footnote 15.
14
Treatment Logs, Tab F to the Bennett Statement, AB Tab 8, p 172-174; Overly Cross, AB Tab 30, p 6268; Final
Decision, ¶7.5.6.b.
15
Overly Cross, AB Tab 30, 6227-6229, 6308-6311.
16
Final Decision, ¶7.5.6.b.
17
Corbett Cross, AB Tab 30, p 6053; Final Decision, ¶7.5.7.b.
18
Benson Chief, AB Tab 30, p 6378-6380.
19
Overly Cross, AB Tab 30, p 6230-6231, Final Decision, ¶7.5.7.a.

5

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14.

When asked why he possessed Isoxsuprine during the Search, Appellant did not tell

Investigator Bennett that he needed it for his Non-Covered practice. Instead, Appellant told
Investigators that the Isoxsuprine was old, and he did not know why it was on the truck.20
15.

At the hearing, Appellant again changed his story. Appellant and Ms. Ingram testified that

Ms. Ingram loaded Isoxsuprine onto his truck because a client requested that Appellant bring
Isoxsuprine to a July 17, 2024 appointment for a non-Covered Horse named “Brownie.” Appellant
and Ms. Ingram testified that they attended this appointment with another veterinarian, Dr. Cecilia
Chapparo.21
16.

Appellant did not produce any veterinary medical records documenting Brownie’s July 17,

2024 appointment. During cross-examination, Appellant stated for the first time that such records
exist, but once again failed to explain why they had not been produced. 22 Appellant also failed to
call Dr. Chapparo or Brownie’s owner as witnesses.23
17.

The Arbitrator concluded that, even if she accepted Appellant’s and Ms. Ingram’s

testimony, there was no explanation as to why expired Isoxsuprine was still on Appellant’s truck
six days after Brownie’s alleged appointment.24
18.

Appellant also had no explanation for why a tub of expired Isoxsuprine “fell through the

cracks” in his office and was still in a bin on site.25

20

Bennett Chief, AB Tab 30, p 5829; Final Decision, ¶7.5.7.
Examination-in-Chief of Dr. Overly (“Overly Chief”), AB Tab 30, p 6134-6136; Cross-Examination of Jessica
Ingram (“Ingram Cross”), AB Tab 30, p 6343-6344, 6355-6357.
22
Overly Cross, AB Tab 30, p 6212-6215.
23
Final Decision, footnote 17.
24
Final Decision, ¶7.5.7.b.
25
Overly Cross, AB Tab 30, p 6231; Final Decision, ¶7.8.13.h.
21

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IV.
19.

Dr. Scollay’s Public Guidance

Prior to the ADMC Program coming into effect, HIWU’s Chief of Science, Dr. Mary

Scollay, gave educational seminars on the ADMC Program. During her seminars, Dr. Scollay
consistently reminded horsemen that possessing Banned Substances is prohibited at all times.26
20.

At the hearing, Dr. Scollay testified about the guidance she would provide in response to

questions from Covered Persons about their ability to “justify” Possession of Banned Substances
during her education seminars. At one particular seminar at Will Rogers Downs in Claremore, OK,
one of the attendees posed a question about veterinarians whose practice includes farm work or
non-Covered Horses, and whether the Possession rules similarly applied to them. A discussion
followed during which Dr. Scollay provided the following explanation (“Will Rogers
Comments”):27
If the veterinarians are practicing also on a population of non-Covered Horses, they’re
taking care of quarter horses or they’ve got a country practice part-time they are able to
possess Banned Substance because we don’t have control over those horses, and so to the
extent that they want to use bisphosphonates on a non-Covered Horse, we can’t ban them
from possessing them… we can’t penalize people for something that we don’t have
control over so, you know, let’s just say because we have the ability to investigate, if
the story starts to get a little weird or a little extreme, you’re going to get more than
a raised eyebrow. But at the end of the day if someone is practicing out in the country,
we don’t have the authority to control the medications they administer or carry for nonCovered Horses… the regulation addresses if there is justification for them to be in
Possession of a Banned Substance and certainly a practice that incorporates nonCovered Horses. [Emphasis added]
21.

In all of Dr. Scollay’s seminars explanations to veterinarians, including the above-

referenced quote, she never stated that a veterinarian has a general or blanket exception to possess
Banned Substances at a Covered Racetrack if they claim to treat non-Covered Horses, or that a

26

Witness Statement of Dr. Scollay (“Scollay Statement”) at paras 4-5, AB Tab 15, p 2638-2639; Examination-inChief of Dr. Scollay (“Scollay Chief”), AB Tab 30, p 5924-5925.
27
Scollay Statement at para 4, AB Tab 15, p 2638-2639.

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Covered Person’s proffered justification will not be subject to further investigation if they have a
non-Covered practice.28
22.

When asked about her prior testimony in the Shell case – where she discussed the potential

confusion that could arise if there were a blanket definition of “justification” – Dr. Scollay
reiterated that there is no proportion of non-Covered practice that, standing alone, can establish a
compelling justification.29
23.

Dr. Scollay further testified that the specific intended use of Banned Substances must be

considered in every context to determine if there is a need to have it at the racetrack, and how that
Possession can be addressed.30
24.

At the Hearing, Appellant testified that he first read the Will Rogers Comments in a blog.31

Appellant’s counsel, Andrew Mollica, later made Appellant aware that the Will Rogers Comments
were referenced in HIWU v. Perez, a prior Possession decision under the ADMC Program.32
25.

During cross-examination, Appellant admitted that he could not recall when he read the

Will Rogers Comments or which blog he read them in.33 Appellant also admitted that he: (i) was
not present for Dr. Scollay’s presentation at Will Rogers Downs; (ii) had never watched an online
recording of the presentation, which had been posted online by an attendee; and (iii) had never
reviewed the slides from Dr. Scollay’s presentation.34

28

Scollay Chief, AB Tab 30, p 5925-5930.
Scollay Chief, AB Tab 30, p 5930-5934.
30
Scollay Chief, AB Tab 30, p 5934-5935.
31
Overly Cross, AB Tab 30, p 6189.
32
Overly Chief, AB Tab 30, p 6106-6111.
33
Overly Cross, AB Tab 30, p 6189-6190, 6192-6193.
34
Overly Cross, AB Tab 30, p 6193-6195.
29

8

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V.
26.

Factors Affecting the Proportionality Analysis

After the parties submitted their written briefs but before the Hearing, ALJ Himes released

his decision In the Matter of Dr. Scott Shell, DVM (“Shell Appeal”),35 a case which similarly
concerned a veterinarian who was found in Possession of multiple Banned Substances during a
search of his veterinary truck at a Covered racetrack.
27.

In the Shell Appeal, ALJ Himes confirmed that Rule 3228(d) of the ADMC Program

permits HIWU to charge a Covered Person with an ADRV for each Banned Substance found in
their Possession;36 however, the principle of proportionality can be considered to determine
whether individual sanctions should be imposed for each charged and established ADRV, or
whether a Covered Person’s sanctions should be combined to allow for an overall reduction in
penalty.37 ALJ Himes concluded that Dr. Shell should be subject to one set of sanctions for his four
Possession ADRVs based on the following factors:
a. Dr. Shell practiced veterinary medicine for more than 37 years and there was no
dispute that he had been previously sanctioned by a veterinary board or racing
authority.38
b. The four ADRVs at issue in the Shell Appeal arose from Dr. Shell’s “professed but
mistaken belief” concerning his ability to possess Banned Substances for his farm
practice or use in West Virginia (where the ADMC Program is currently subject to
an injunction).39

35

Docket No. 9430 (March 6, 2025).
Shell Appeal, Docket No. 9430 (March 6, 2025) 44-48.
37
Shell Appeal, Docket No. 9430 (March 6, 2025) 49-50.
38
Shell Appeal, Docket No. 9430 (March 6, 2025) 50.
39
Shell Appeal, Docket No. 9430 (March 6, 2025) 50.
36

9

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c. Imposing consecutive Ineligibility periods and cumulative fines on Dr. Shell would
be disproportionate to his misconduct, in circumstances where: (i) he was close to
retirement, and an 8-year period of Ineligibility would result in permanent
expulsion from practicing in the HISA-covered racing industry; and (ii) a $100,000
fine would inflict undue financial burden.40
28.

HIWU distinguished the foregoing factors in its written closing submissions as follows:41
a. First, Appellant did not come to the Arbitration with “clean hands” and his
testimony was impeached twice at the hearing regarding his history with veterinary
regulatory authorities. After initially affirming in his witness statement that he had
never been charged with a violation at Los Alamitos,42 Appellant walked back his
testimony at the Hearing and stated he had never been charged with a “medication”
violation, associated with Los Alamitos or CHRB.43 During cross-examination,
HIWU’s counsel, Allison Farrell, asked Appellant about this testimony and took
him to a 15-allegation Amended Accusation pending before the California
Veterinary Medical Board (“Amended Accusation”). When confronted with the
Amended Accusation’s allegations that Appellant fraudulently administered the
medication Ritalin to his ex-spouse’s horse, Appellant conceded that these charges
arise from alleged conduct at Los Alamitos.44 Appellant was again impeached when
Ms. Farrell brought Appellant to four Stewards’ Rulings documenting his four prior
violations of the CHRB Rules between 2009 and 2018.45

40

Shell Appeal, Docket No. 9430 (March 6, 2025) 50.
HIWU Closing at para 40, AB Tab 31, 6417-6418.
42
Witness Statement of Dr. Overly (“Overly Statement”) at paras 5, 52, AB Tab 12, p 1162, 1172-1173.
43
Overly Chief, AB Tab 30, p 5410-5412.
44
Amended Accusation at paras 69-71, Tab 19, p 2939-2940; Overly Cross, AB Tab 30, p 5518-5522.
45
Stewards’ Rulings (Exhibits AA to AD), Tab 25, p 3098-3105; Overly Cross, AB Tab 30, p 5522-5536.
41

10

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b. Second, Appellant did not simply have a mistaken belief concerning his ability to
possess Banned Substances for use in his non-Covered practice. Rather, Appellant
could not point to any regular, documented use of Testosterone or Isoxsuprine in
his non-Covered practice. He otherwise offered inconsistent and poorly
substantiated explanations for sporadically administering Testosterone to Cosmo
and carrying expired Isoxsuprine for an undocumented appointment for Brownie.
Much of his corroborating evidence came from his veterinary technician Ms.
Ingram, whom he failed to disclose as his girlfriend until questioned on crossexamination.
c. Third, there was no evidence that Appellant was close to the end of his career such
that 4 potential years of Ineligibility from working with Covered Horses would
permanently expel him from practicing in the HISA-covered racing industry, nor
was there any indication that Appellant would face an undue financial burden given
the Arbitrator’s discretion to set financial penalties.
29.

The Arbitrator affirmed that HIWU properly charged Appellant with two ADRVs in

accordance with ALJ Himes’ analysis in the Shell Appeal. 46 However, the Arbitrator ultimately
determined that only one set of sanctions should be imposed on the basis that both ADRVs: (i)
arose from one search; and (ii) were related to Appellant’s professed but mistaken belief that
“because he had a majority of Non-Covered horses in his practice, he was able to carry Banned
Substances on his truck at Los Alamitos which were intended for use in his Non-Covered practice
without having to articulate or establish a specific need to carry that Banned Substance at Los
Alamitos for any particular part of his Non- Covered practice.”47

46
47

Final Decision ¶7.6.1-7.6.3.
Final Decision ¶7.7.5.

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VI.
30.

Factors Affecting Dr. Overly’s Degree of Fault

Appellant was aware that the ADMC Program was new and that it regulated the use and

possession of certain substances that may have previously been permitted.48
31.

There is no dispute Appellant knew Testosterone and Isoxsuprine are Banned Substances.

After reading the HISA Rules and taking inventory, Appellant only removed bisphosphonates from
his truck (and instructed his staff not to load bisphosphonates on his truck) because they were
banned by both CHRB and HISA rules.49
32.

Appellant knew that he had Testosterone on his veterinary truck at Los Alamitos, and Ms.

Ingram knew she loaded Isoxsuprine onto his veterinary truck on July 17, 2024.50
33.

Appellant testified that he read the rules, conducted due diligence, and claimed to have

read and relied on Dr. Scollay’s Will Rogers Comments before July 23, 2024. However, Appellant
also admitted that he made no effort to reach out to Dr. Scollay or anyone else at HIWU to discuss
the mixed nature of his practice, his need to carry Testosterone (or Isoxsuprine) at Los Alamitos,
and whether he was at risk of violating the Possession Rule.51
34.

Although he claimed to have read everything available to him, Appellant acknowledged he

had not read all the cases posted on the HIWU website and could not remember reading any of the
cases.52 Appellant also did not make any effort to review Dr. Scollay’s full presentation on the
ADMC Program.53
35.

Appellant admitted his truck was loaded and unloaded twice a day, five days a week

(typically before going to Los Alamitos each morning and after returning from Los Alamitos and

48

Overly Cross, AB Tab 30, p 6186-6187; Final Decision ¶7.8.5, 7.8.13.a.
Overly Cross, AB Tab 30, p 6220-6224; Final Decision ¶7.8.5, 7.8.13.g.
50
Ingram Cross, AB Tab 30, p 6355-6357; Overly Cross, AB Tab 30, p 6136; Final Decision ¶7.8.5, 7.8.13.g.
51
Overly Cross, AB Tab 30, p 6197-6198; Final Decision ¶7.8.5, 7.8.13.e.
52
Overly Cross, AB Tab 30, p 6187-6188; Final Decision ¶7.8.5, 7.8.13.f.
53
Overly Cross, AB Tab 30, p 6194-6195; Final Decision ¶7.8.5, 7.8.13.f.
49

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PUBLIC
going
packing his
going to
to see
see off-track
off-track patients)
patients) and
and that
that he
he delegated
delegated the
the responsibility
responsibility of
of packing
his truck
truck to
to his
his
544
veterinary
veterinary technicians,
technicians, including
including Ms.
Ms. Ingram.
Ingram.°

VII.
VII.
36.
36.

The
The Final
Final Decision
Decision

On
On August
August 21,
21, 2025,
2025, the
the Arbitrator
Arbitrator issued
issued aa Corrected
Corrected Final
Final Award
Award (“Final
(‘Final Decision”),
Decision’’),

which
which concluded
concluded that:
that:
a.
justification for
possessing Testosterone
a. Appellant
Appellant failed
failed to
to establish
establish aa compelling
compelling justification
for possessing
Testosterone
55
or
or Isoxsuprine;
Isoxsuprine;>°

b.b. Appellant
Appellant was
was properly
properly charged
charged with
with two
two Possession
Possession ADRVs,
ADRVs, but
but Appellant
Appellant should
should
56

be subject
be
subject to
to one
one set
set of
of sanctions;
sanctions;°° and
and
c.
c. Appellant’s
Appellant’s degree
degree of
of Fault
Fault was
was Significant,
Significant, but
but he
he should
should receive
receive aa modest
modest
57
reduction
reduction of
of 1-month
1-month to
to the
the standard
standard 24-months
24-months of
of Ineligibility.
Ineligibility.>’

37.
37.

The
The Final
Final Decision
Decision imposed
imposed the
the following
following Consequences:
Consequences:
a.
Appellant
be suspended
a.
Appellant was
was to
to be
suspended for
for 23-months
23-months from
from the
the date
date of
of Issuance
Issuance of
of the
the Final
Final
Decision,
Decision, less
less 169
169 days
days credit
credit for
for time
time served
served under
under the
the prior
prior Period
Period of
of Ineligibility
Ineligibility
and
and subsequent
subsequent Voluntary
Voluntary Provisional
Provisional Suspension;
Suspension;
b. Appellant
Appellant was
was fined
fined $25,000
$25,000 USD;
USD; and
and
c.

Appellant
Appellant was
was required
required to
to pay
pay $15,000
$15,000 USD
USD towards
towards HIWU’s
HIWU’s share
share of
of the
the
Arbitration costs.
Arbitration
costs.°®58

54

¶7.8.13.g.
4 Overly
Overly Cross,
Cross, AB
AB Tab
Tab 30,
30, 6227-6229,
6227-6229, 6308-6311;
6308-6311; Final
Final Decision
Decision 97.8.13.g.

55

¶7.5.8.
°5 Final
Final Decision,
Decision, 47.5.8.

56

¶7.6.3, 7.7.1-7.7.5.
%¢ Final
Final Decision,
Decision, 7.6.3,
7.7.1-7.7.5.

57

¶7.8.17.
57 Final
Final Decision,
Decision, §7.8.17.
¶8.1.
58 Final
Final Decision,
Decision, §8.1.

58

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PROPOSED CONCLUSIONS OF LAW
1.

Appellant had the burden to establish a “compelling justification” by a preponderance of

the evidence. Appellant failed to meet his burden for either of the Possession ADRVs charged and
established in this matter. Appellant therefore committed two Possession ADRVs contrary to Rule
3214(a) of the ADMC Program.
2.

Appellant was properly charged with two ADRVs.

3.

Separate, consecutive sanctions should be imposed for each ADRV based on a proper

assessment of proportionality in accordance with the Shell Appeal.
4.

Appellant failed to establish No Fault or Negligence.

5.

Appellant bears responsibility for delegating the tasks of loading and unloading his

veterinary truck to his veterinary technicians, including Ms. Ingram.59 Any Fault committed by
Appellant’s delegates that contributes to either of his ADRVs is therefore strictly fixed to
Appellant.
6.

The Arbitrator’s assessment of Fault was correct and should be applied in respect of each

ADRV, such that Appellant receives a 1-month reduction for each 24-month period of Ineligibility
imposed on him.
PROPOSED ORDER
Based on the foregoing findings of fact and conclusion of law, incorporated herein, the
undersigned Administrative Law Judge (“ALJ”) ORDERS AND ADJUDGES that:
a. Appellant failed to establish a compelling justification for possessing Testosterone
or Isoxsuprine.

59

Per the lex sportiva, the objective fact of a delegated third party’s misdeed is imputed to the Covered Person: see
e.g., CAS 2016/A/4643, Maria Sharapova v ITF at para 85.

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b.. Appellant
Appellant was
was properly
properly charged
charged with
with two
two Possession
Possession ADRVs,
ADRVs, for
for which
which he
he should
should
serve
serve separate
separate and
and consecutive
consecutive sanctions.
sanctions.
c. Appellant’s
Appellant’s degree
degree of
of Fault
Fault was
was Significant,
Significant, but
but he
he should
should receive
receive aa modest
modest
reduction
reduction of
of 1-month
1-month to
to the
the standard
standard 24-months
24-months of
of Ineligibility
Ineligibility for
for each
each ADRV.
ADRV.
d. The
be imposed
be 46-months
The period
period of
of Ineligibility
Ineligibility to
to be
imposed on
on Appellant
Appellant shall
shall be
46-months (23(23months
months per
per ADRV)
ADRV) from
from the
the date
date of
of issuance
issuance of
of the
the Arbitrator’s
Arbitrator’s Final
Final Decision,
Decision,
less
under the
less 169
169 days
days credit
credit for
for time
time served
served under
the prior
prior Period
Period of
of Ineligibility
Ineligibility and
and
subsequent
subsequent Voluntary
Voluntary Provisional
Provisional Suspension.
Suspension.
e. Appellant’s
Appellant’s fine
fine will
will be
be adjusted
adjusted from
from $25,000
$25,000 USD
USD to
to $35,000
$35,000 USD.
USD.
f. Appellant
Appellant will
will continue
continue to
to pay
pay $15,000
$15,000 USD
USD towards
towards HIWU’s
HIWU’s share
share of
of the
the
Arbitration
Arbitration costs.
costs.

15
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SUPPORTING LEGAL BRIEF
I.

Introduction
This appeal concerns a review of the Final Decision, by which Appellant challenges the

Arbitrator’s conclusion that he violated ADMC Program Rule 3214(a) and seeks to overturn the
imposed Consequences ordered by the Arbitrator as arbitrary, capricious, an abuse of discretion,
prejudicial, or otherwise not in accordance with law. Specifically, Appellant contends: (i) he
established, by a preponderance of the evidence, that he had a compelling justification for
Possession of Banned Substances, and thus an ADMC Program Rule 3214(a) violation did not
occur; and (ii) the Arbitrator erroneously found that Appellant did not demonstrate “No Fault or
Negligence” such that all penalties should be expunged, or alternatively, Appellant’s degree of
Fault was minimal and his sanctions should have been reduced accordingly.
The Arbitrator correctly concluded that Appellant was in Possession of two Banned
Substances at Los Alamitos and failed to establish a compelling justification for Possession of
either Banned Substance on the evidence. Critically, Appellant’s assertion that a “compelling
justification” is established based on the composition of his practice is a red herring that would
render the Possession Rule meaningless and fails to consider the full context of public guidance
from HIWU’s former Chief of Science, Dr. Scollay.
The Arbitrator also correctly determined that: (i) Appellant’s conduct failed to establish
No Fault or Negligence; and (ii) Appellant is entitled to no more than a minimal reduction to his
period of Ineligibility. However, the Arbitrator’s Fault analysis erroneously applied principles of
proportionality to impose one set of Consequences for the two ADRVs that were established on
the evidence. This error should be corrected on de novo review by imposing consecutive 23-month
sanctions for each of the two Possession ADRVs, for a total of 46-months.

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II.

Summary of Applicable Law
The ADMC Program Rules that govern a Possession charge were summarized by the Chief

ALJ and ALJ Himes in prior appeals filed by Dr. Luis Jorge Perez, DVM,60 and Dr. Scott Shell,61
as well as Justice Sarah M. Davenport in her order denying a preliminary injunction in the matter
Jason Scott v. Horseracing Integrity & Safety Authority et al.62
Under Rule 3214(a), Possession of a Banned Substance without a “compelling
justification” constitutes an ADRV. HIWU bears the onus of establishing the fact of Possession,
which was undisputed in this case. The burden then shifts to the Covered Person to establish a
“compelling justification” defense, which is “fact-driven,” “case-specific,” and “part of a
regulatory scheme directed to banishing doping from thoroughbred horseracing.”63 Accordingly,
“compelling justification” excusing Possession is an “exception” that should “be interpreted
restrictively,” and an exemption that will apply in a “small minority” of cases.64
In the Scott Injunction Order, Justice Davenport rejected criticism that the Possession Rule
fails to provide Covered Persons with guidance on how to alter their practice to comply with the
rule. The Possession Rule clearly dictates that veterinarians should refrain from possessing Banned
Substances, which are set out in detail on the Authority’s “Prohibited List” – leaving “scant room
for confusion over what can and cannot be possessed.” A veterinarian can always comply with the

60

In the Matter of Luis Jorge Perez (“Perez Appeal”), Docket No. 9420 (February 7, 2024) 3-5.
Shell Appeal, Docket No. 9430 (March 6, 2025) 14-16.
62
Memorandum Order Denying Plaintiff’s Motion for a Preliminary Injunction (“Scott Injunction Order”),
No. 2:25-cv-632-SMD-GJF (October 22, 2025).
63
Shell Appeal, Docket No. 9430 (March 6, 2025) 16.
64
Shell Appeal, Docket No. 9430 (March 6, 2025) 16; Scott Injunction Order, No. 2:25-cv-632-SMD-GJF (October
22, 2025) 16.
61

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Possession Rule by not possessing the substances it prohibits. The Possession Rule does not need
to spell out all situations where the act of Possession is prohibited.65
Under Rule 3223(b), the required sanction for any violation of Rule 3214(a) is a period of
Ineligibility of two years, a fine of up to $25,000, and payment of some or all the adjudication
costs and HIWU’s legal costs. A Covered Person may be entitled to mitigated sanctions, where he
establishes on a balance of probabilities that he acted with No Fault or Negligence (Rule 3224), or
No Significant Fault or Negligence (Rule 3225). The determination of No Fault is rare and
exceptional.66
Pursuant to 15 U.S.C. §3058(b), the Consequences imposed on Appellant are subject to de
novo review. On appeal, the reviewing ALJ must determine: (i) whether Appellant’s acts are in
violation of the ADMC Program Rules approved by the Commission (here, Rule 3214(a)); and (ii)
whether the civil sanction ordered by the Arbitrator was arbitrary, capricious, an abuse of
discretion, prejudicial, or otherwise not in accordance with law.67
To pass the “arbitrary and capricious” standard, there must be a “rational connection
between the facts and judgment” at issue.68 To make this finding, the ALJ considers whether the
Decision was “based on a consideration of the relevant factors and whether there has been a clear
error of judgment.”69 Judicial review under the arbitrary and capricious standard looks to ensure
that “the agency has acted within a zone of reasonableness and, in particular, has reasonably

65

Scott Injunction Order, No. 2:25-cv-632-SMD-GJF (October 22, 2025) 15-16.
FIS v Therese Johaug v NIF, CAS 2017/A/5015 ¶185.
67
15 U.S.C. §3058 (b)(1), (b)(2)(A)(ii)-(iii); 16 C.F.R. § 1.146 (b)(2)-(3).
68
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 31 (1983).
69
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on other grounds by Califano
v. Sanders, 430 U.S. 99 (1977).
66

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considered the relevant issues and reasonably explained the decision.”70 Similarly, an “abuse of
discretion” arises where there is “a plain error, discretion exercised to an end not justified by the
evidence, [or] a judgment that is clearly against the logic and effect of the facts as are found.” 71
Whether the sanctions are in accordance with the law is determined with reference to the
substantive law of the HISA statute and the implementing regulations, as summarized above.72
Pursuant to 15 U.S.C. §3058(b)(3)(A), the ALJ may “affirm, reverse, modify, set aside, or
remand for further proceedings, in whole or in part the final civil sanction of the Authority,” and
“make any finding or conclusion that, in the judgment of the [ALJ], is proper and based on the
record.”73 The Authority requests that the ALJ uphold the determination that Appellant committed
two ADRVs and adopt the Arbitrator’s Fault analysis, but modify the award to impose
individualized Consequences for each established violation.
III.

Response to Appellant’s Grounds of Appeal
a. Appellant Failed to Establish a Compelling Justification for Possessing
Testosterone or Isoxsuprine
On appeal, Appellant asserts that he interpreted Dr. Scollay’s Will Rogers Comments to

mean that he could establish a compelling justification, through “records and testimony
demonstrating that his practice regularly used, or intended to use, the Banned Substances at issue
in his Non-Covered practice and, consequently, that he was permitted to be in possession of those
substances.”74

70

FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021).
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782, 798 (9th Cir. 2005).
72
This standard of review has been confirmed in other FTC appeals from civil sanctions imposed by the Authority,
including the Perez Appeal: Docket No. 9420 (February 7, 2024).
73
15 U.S.C. §3058(b)(3)(A)(ii)-(iii).
74
Appellant Notice of Appeal and Application for Review, p 2.
71

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The evidence shows that Dr. Scollay did not give any public guidance indicating that a
veterinarian has a general or blanket exception to possess Banned Substances if they “claim” to
treat non-Covered Horses, or that a Covered Person’s proffered justification will not be subject to
further investigation if they have a non-Covered practice.75 Rather, the specific intended use of
Banned Substances must be considered in every context to determine if there is a need to have it
at the Racetrack, and how that Possession can be addressed.76 Any finding to the contrary would
transform the “compelling justification” defense into an exception that swallows the Possession
Rule and renders it meaningless.
Moreover, Appellant’s records and testimony clearly did not establish that he had a need to
possess Testosterone or Isoxsuprine at Los Alamitos for his non-Covered Horse practice. In
reaching this conclusion, the Arbitrator fully considered the evidence before her, with respect to
each Banned Substance in issue.
The Testosterone Evidence
With respect to the Testosterone, Appellant’s records showed that he has never used
Testosterone on a non-Covered Horse at Los Alamitos.77 This was consistent with Dr. Benson’s
evidence that treating a non-Covered Horse with Testosterone would preclude the horse from
racing for six-months at Los Alamitos.78
After initially telling Investigators that the Testosterone was for personal use,79 Appellant
attempted to justify his Possession on the basis that he used Testosterone in his off-track practice

75

HISA Proposed Finding of Fact (“PFF”) #21; Scollay Chief, AB Tab 30, p 5925-5930.
PFF #23; Scollay Chief, AB Tab 30, p 5934-5935.
77
PFF #5; Corbett Cross, AB Tab 30, p 6052; Final Decision, ¶7.5.6.a.
78
PFF #6; Benson Chief, AB Tab 30, p 6372; Final Decision, ¶7.5.6.a.
79
PFF #7; Bennett Chief, AB Tab 30, p 5844-5846; Final Decision, ¶7.5.6.
76

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for a horse named Cosmo. Cosmo is owned by Appellant’s veterinary technician, Ms. Ingram,
with whom Appellant has a previously undisclosed romantic relationship, raising serious
credibility concerns.80 Moreover, Appellant failed to produce any veterinary medical records for
Cosmo documenting a diagnosis or medical rationale for Testosterone treatment – despite claiming
that such records exist, and failing to provide an explanation as to why they were not produced.81
In any event, the limited records that were produced by Appellant included Treatment Logs
which showed that Appellant was not scheduled to treat Cosmos on the day of the Search, but a
week later, on July 30, 2024. But at the hearing, Appellant admitted that: (i) it was his practice to
always go back to his clinic after completing his treatments at Los Alamitos; (ii) his truck was
unloaded and reloaded as necessary before going out to see his other, off-track patients; and (iii)
his truck was typically loaded and unloaded/reloaded twice a day, five days a week. In light of
these admissions, the Arbitrator rightly concluded that there was no need for Testosterone to be
loaded onto Appellant’s truck a week before his next purported appointment for Cosmo.82
The Isoxsuprine Evidence
With respect to the Isoxsuprine, Appellant’s records showed that he has never used
Isoxsuprine on a non-Covered Horse at Los Alamitos or off-track.83 This was consistent with Dr.
Benson’s evidence that Isoxsuprine is banned at Los Alamitos, and Appellant’s admission that the
Isoxsuprine could not be used.84

80

PFF #8; Overly Cross, AB Tab 30, p 6281-6283; Counsel and Arbitrator Comments, AB Tab 30, p 6313-6318;
Ingram Cross, AB Tab 30, p 6350-6351; Final Decision, ¶7.5.6.b.
81
PFF #10; Overly Cross, AB Tab 30, p 6269-6270; Final Decision, footnote 15.
82
PFF #11; Treatment Logs, Tab F to the Bennett Statement, AB Tab 8, p 172-174; Overly Cross, AB Tab 30, p 6268;
Final Decision, ¶7.5.6.b.
83
PFF #12; Corbett Cross, AB Tab 30, p 6053; Final Decision, ¶7.5.7.b.
84
PFF #13; Benson Chief, AB Tab 30, p 6378-6380; Overly Cross, AB Tab 30, p 6230-6231, Final Decision, ¶7.5.7.a.

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During the Search, Appellant initially told Investigators that he did not know why (expired)
Isoxsuprine was on his truck.85 At the Hearing, Appellant and Ms. Ingram then testified that Ms.
Ingram had, in fact, loaded Isoxsuprine onto the truck because a client requested that Appellant
bring Isoxsuprine to a July 17, 2024 appointment for a non-Covered Horse named “Brownie.”86
Appellant did not produce any veterinary medical records documenting Brownie’s July 17, 2024
appointment – despite (once again) claiming for the first time at the hearing that such records
exist.87
The Arbitrator ultimately concluded that, even if she accepted Appellant’s and Ms.
Ingram’s testimony, there was no explanation as to why expired Isoxsuprine was still on
Appellant’s truck six days after Brownie’s alleged appointment88 – particularly when Appellant’s
truck was frequently loaded and unloaded in the usual course.89
Taken as a whole, there is no basis to reverse the Arbitrator’s conclusions on the
“compelling justification” defense or reach a different conclusion on de novo review of the
evidence.
b. Appellant’s Grounds for Reducing His Sanctions Should be Rejected
Appellant also failed to meet his burden to establish: (i) No Fault, such that all
Consequences ordered against him should be eliminated; or (ii) a basis to further reduce his
Consequences under the Fault analysis.90

85

PFF #14; Bennett Chief, AB Tab 30, p 5829; Final Decision, ¶7.5.7.
PFF #15; Overly Chief, AB Tab 30, p 6134-6136; Ingram Cross, AB Tab 30, p 6343-6344, 6355-6357.
87
PFF #16; Overly Cross, AB Tab 30, p 6212-6215.
88
PFF #17; Final Decision, ¶7.5.7.b.
89
PFF #11; Overly Cross, AB Tab 30, 6227-6229, 6308-6311.
90
As discussed below, the Arbitrator (erroneously) determined that principles of proportionality required the sanctions
for Appellant’s two Possession ADRVs to be combined and considered under a single Fault analysis. Accordingly, the
Arbitrator considered whether the standard two years of Ineligibility for a single ADRV should be eliminated or
reduced. Final Decision ¶7.7.1-7.7.5.
86

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Appellant’s claim that he established No Fault is based on the assertion that a “reasonable
veterinarian” would have interpreted Dr. Scollay’s statements to mean that he could carry Banned
Substances if he had “proper records demonstrating Non-Covered use or intended use.”91 This
argument fails on two fronts, with regard to the evidence discussed above: (i) Appellant cannot
establish No Fault by relying on a selective and self-serving interpretation of Dr. Scollay’s
guidance, which would render the Possession Rule meaningless; and (ii) in any event, Appellant
produced no records showing that he had ever used or intended to use Testosterone or Isoxsuprine
in his Non-Covered practice at Los Alamitos.
The law is clear that No Fault is a high burden to prove: Covered Persons must demonstrate
that it was nearly impossible for them to reasonably suspect or know that they may be committing,
or at risk of committing, an ADRV.92 The Arbitrator applied this standard, noting that to establish
No Fault, Appellant needed to show that “despite the exercise of utmost caution he could not have
reasonably known or suspected he was committing an ADRV by having Testosterone and/or
Isoxsuprine on his veterinary truck at Los Alamitos.”93
Appellant’s conduct falls well below this standard, in circumstances where the undisputed
evidence shows that:
•

Appellant was aware of the new ADMC Program Rules and claims to have studied them;94

•

Appellant knew Testosterone and Isoxsuprine are Banned Substances under the new
ADMC Program Rules;95

91

Appellant Notice of Appeal and Application for Review, p 2.
WADA Code, article 10.5, note 65; FIS v Therese Johaug v NIF, CAS 2017/A/5015 ¶185.
93
Final Decision ¶7.8.4.
94
PFF #30; Overly Cross, AB Tab 30, p 6186-6187; Final Decision ¶7.8.5, 7.8.13.a.
95
PFF #31; Final Decision ¶7.8.5, 7.8.13.g.
92

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•

Appellant knew he had Testosterone on his veterinary truck at Los Alamitos;96

•

Ms. Ingram knew that she loaded Isoxsuprine onto Appellant’s veterinary truck on July 17,
2024;97

•

Appellant admitted he read the rules, conducted due diligence, and claimed to have read
and relied on the Will Rogers Down Comments before July 23, 2024, but made no effort
to reach out to Dr. Scollay or anyone else at HIWU to discuss the mixed nature of his
practice, his need to carry Testosterone (or Isoxsuprine) at Los Alamitos, and whether he
was at risk of violating the Possession Rule;98 and

•

Appellant made no effort to review Dr. Scollay’s full presentation on the ADMC Program.99
Taken as a whole, the Arbitrator’s No Fault analysis was rationally connected to the facts,

based on a relevant consideration of factors, and otherwise in accordance with the law on the No
Fault standard. There is no legal or factual basis to overturn her analysis, which was consistent
with all prior decisions issued on the subject under the ADMC Program.
In considering the appropriate degree of Fault, the Arbitrator also properly applied the twostep Cilic framework, which has been adopted in multiple decisions under the ADMC Program:100
•

First, the Arbitrator concluded that Appellant demonstrated Significant Fault based on
relevant objective factors, which warrants a sanction between 17-24 months.101 A

96

PFF #32; Ingram Cross, AB Tab 30, p 6355-6357; Overly Cross, AB Tab 30, p 6136; Final Decision ¶7.8.5, 7.8.13.g.
PFF #32; Ingram Cross, AB Tab 30, p 6355-6357; Overly Cross, AB Tab 30, p 6136; Final Decision ¶7.8.5, 7.8.13.g.
As the Arbitrator noted, Ms. Ingram’s knowledge is imputed to Dr. Overly and he is strictly liable for ensuring that
the staff he delegates responsibility to for loading and unloading substances on his veterinary truck comply with the
Rules.
98
PFF #33; Overly Cross, AB Tab 30, p 6197-6198; Final Decision ¶7.8.5, 7.8.13.e.
99
PFF #34; Overly Cross, AB Tab 30, p 6194-6195; Final Decision ¶7.8.5, 7.8.13.f.
100
Cilic v International Tennis Federation, CAS 2013/A/3327, cited in HIWU v. Poole, JAMS No. 1501000576 ¶7.167.17.
101
Final Decision ¶7.8.11-7.8.13.
97

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reasonable veterinarian in Appellant’s position would not have assumed that he had a
right to carry Banned Substances at Los Alamitos without a specific need for those
substances in his or her Non-Covered practice based simply on the Will Rogers
Comments. Instead, a reasonable veterinarian would have perceived risk in carrying
Banned Substances at Los Alamitos and taken further steps to mitigate that risk.102
•

Second, the Arbitrator considered whether there were any subjective factors that
justified reducing Appellant’s sanction below 24-months. Appellant was only entitled
to a slight reduction of 1-month on the basis that there was no evidence he intended to
or did treat Covered Horses with Testosterone or Isoxsuprine, and thus there was no
evidence he intended to cheat.103

Further reducing Appellant’s period of Ineligibility would have been inconsistent with the
sanction ranges established by Cilic, adopted in HIWU v. Poole and followed by other members
of the Arbitral Body, and prior ALJ decisions. Accordingly, there is once again no legal or factual
basis to alter the Arbitrator’s Fault analysis and to do so would be a rejection of all other ADMC
Program jurisprudence on this issue.
c. Appellant’s Sanctions Should be Separately Imposed for each ADRV
If the ALJ affirms that Appellant committed the two ADRVs at issue, Appellant’s
Consequences should be modified to impose a 23-month period of Ineligibility for each ADRV. As
outlined below, the Arbitrator’s proportionality analysis was not rationally connected to the facts.
Accordingly, her decision to impose one set of Consequences was arbitrary and capricious.

102
103

Final Decision ¶7.8.14.
Final Decision ¶7.8.15-7.8.17.

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The Arbitrator failed to consider any of the following factors, which distinguish Appellant’s
case from ALJ Himes’ proportionality analysis in the Shell Appeal:
•

Appellant does not have a clean history with veterinary regulatory authorities and was
impeached twice at the Hearing when questioned about: (i) an ongoing proceeding
before the California Veterinary Medical Board; and (ii) four Stewards’ Rulings
documenting his four prior violations of CHRB Rules between 2009 and 2018.104

•

Whereas Dr. Shell had a professed but mistaken belief that he could possess Banned
Substances for his farm practice or use in West Virginia, Appellant did not produce
similar evidence that the Banned Substances at issue were, in fact, regularly being used
in Appellant’s non-Covered practice. As outlined above, Testosterone use was poorly
substantiated and limited to sporadic treatments of one horse, owned by Appellant’s
veterinary technician and girlfriend. Isoxsuprine use was never documented. Moreover,
Arbitrator’s finding that Appellant had a professed but mistaken belief that he could
possess Banned Substances at Los Alamitos for “intended use” in non-Covered
practice, without any need to “articulate or establish a specific need”, ignores the fact
that Appellant failed to establish even a hypothetical, prophylactic need for
Testosterone or Isoxsuprine. To reiterate the evidence above, Appellant has never used
Testosterone or Isoxsuprine in his non-Covered practice at Los Alamitos.105

•

There is no evidence that imposing consecutive, cumulative sanctions for each ADRV
would end Appellant’s career – shortly before retirement or otherwise – or cause undue

104

PFF #28; Amended Accusation at paras 69-71, Tab 19, p 2939-2940; Overly Cross, AB Tab 30, p 5518-5522;
Stewards’ Rulings (Exhibits AA to AD), Tab 25, p 3098-3105; Overly Cross, AB Tab 30, p 5522-5536.
105
PFF #5: Corbett Cross, AB Tab 30, p 6052; Final Decision, ¶7.5.6.a; PFF #12: Corbett Cross, AB Tab 30, p 6053;
Final Decision, ¶7.5.7.b.

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PUBLIC
financial
financial harm.
harm. In
In fact,
fact, the
the Authority
Authority acknowledges
acknowledges that
that there
there is
is discretion
discretion to
to set
set
financial
penalties and
financial penalties
and is
is only
only seeking
seeking to
to increase
increase Appellant’s
Appellant’s fine
fine to
to an
an amount
amount not
not to
to
106
exceed
exceed $35,000.
$35,000.!°

If
Appellant, each
If separate
separate sanctions
sanctions are
are imposed
imposed on
on Appellant,
each 23-month
23-month period
period of
of Ineligibility
Ineligibility
should
be served
should be
served consecutively.
consecutively. This
This approach
approach is
is consistent
consistent with
with the
the framework
framework applied
applied by
by ALJ
ALJ
Himes
by which
proportionality determines
Himes in
in the
the Shell
Shell Appeal,
Appeal, by
which proportionality
determines whether
whether aa Covered
Covered Person
Person is
is
subject
be illogical
subject to
to aa single
single set
set of
of sanctions,
sanctions, or
or one
one set
set of
of sanctions
sanctions per
per ADRV.
ADRV. It
It would
would be
illogical and
and
antithetical
antithetical to
to this
this framework
framework to
to conclude
conclude that
that even
even where
where proportionality
proportionality dictates
dictates that
that separate
separate
sanctions
period.
sanctions be
be imposed,
imposed, they
they should
should run
run concurrently
concurrently over
over the
the same
same period.

th
ALL
ALL OF
OF WHICH
WHICH IS
IS RESPECTFULLY
RESPECTFULLY SUBMITTED
SUBMITTED THIS
THIS 15
15" day
day of
of December,
December, 2025.
2025.

/s/Bryan H.
H. Beauman
Beauman
/s/Bryan
BRYAN
BRYAN BEAUMAN
BEAUMAN
REBECCA
REBECCA PRICE
PRICE
333
333 W.
W. Vine
Vine Street,
Street, Suite
Suite 1500
1500
Lexington,
Lexington, Kentucky
Kentucky 40507
40507
Telephone:
Telephone: (859)
(859) 255-8581
255-8581
bbeauman@sturgillturner.com
bbeauman@sturgillturner.com
rprice@sturgillturner.com
rprice@sturgillturner.com
HISA
HISA ENFORCEMENT
ENFORCEMENT COUNSEL
COUNSEL

106

106 Pursuant
Pursuant to
to ADMC
ADMC Program
Program Rule
Rule 3223,
3223, the
the default
default financial
financial penalty
penalty for
for aa first-time
first-time Possession
Possession ADRV
ADRV is
is aa fine
fine
of
of “up
“up to”
to” $25,000.
$25,000. If
If Appellant
Appellant is
is found
found to
to have
have committed
committed two
two first-time
first-time ADRVs,
ADRVs, the
the ALJ
ALJ may
may impose
impose aa financial
financial
penalty
up to
penalty of
of up
to $25,000
$25,000 per
per violation
violation ($50,000
($50,000 total)
total) but
but retains
retains discretion
discretion to
to set
set aa lower
lower financial
financial penalty.
penalty.

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MICHELLE
MICHELLE C.
C. PUJALS
PUJALS
ALLISON
ALLISON J.
J. FARRELL
FARRELL
4801
4801 Main
Main Street,
Street, Suite
Suite 350
350
Kansas
Kansas City,
City, MO
MO 64112
64112
Telephone:
Telephone: (816)
(816) 291-1864
291-1864
mpujals@hiwu.org
mpujals@hiwu.ore
afarrell@hiwu.org
afarrell@hiwu.org
HORSERACING
HORSERACING INTEGRITY
INTEGRITY &
&
WELFARE
UNIT,
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DIVISION
WELFARE UNIT, A DIVISION OF
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28
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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aftc%3Af6f0a5b4ddbf7aa2. Public record. Not legal advice.