The Kentucky Court of Appeals on Friday dismissed an appeal by owner Daniel Waxman regarding a positive test on his horse Loyal Opposition in 2005

at The Red Mile. The decision upheld a ruling issued in April 2009 by a Franklin County Circuit Court judge that affirmed the ruling by the Kentucky Horse Racing Commission (KHRC) following the positive test for flunixin on Loyal Opposition after she won the $80,000 Allerage final Oct. 8, 2005.

Three other horses also tested positive for flunixin on that same day during the 2005 Grand Circuit meet at The Red Mile. Trainer Erv Miller was fined $250 for the positive on Loyal Opposition, veterinarian Dr. Rick Mather was fined a total of $1,500 for having administered the flunixin to Loyal Opposition and two of the other horses. Waxman was ordered to return the $40,000 winner’s share of the purse which had already been paid; Glowing Report, who finished second in the race, will receive credit for the victory. Loyal Opposition was later voted the 2005 Older Pacing Mare of the Year by the U.S. Harness Writers Association.

Over the course of the court hearings, Waxman has been arguing that the KHRC rule regarding the prohibition of the use of certain drugs and its testing procedure after a race was unconstitutional at the time in that it violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and violated three sections of the Kentucky Constitution, also on equal protection grounds.

The conclusion of the ruling reads as follows:

"While there clearly is conflicting evidence in the administrative record, there can be no question that there is substantial evidence that supports the decision of the KHRA. The decision of the KHRA was not arbitrary or capricious. Moreover, the evidence fails to establish that 811 KAR 1:090, as it existed at the relevant time, was unconstitutional for any reason. Accordingly, for the foregoing reasons, Petitioner’s appeal is DENIED. The ruling of the KHRA in case 06-100 is AFFIRMED. There being no just cause for delay, this is a final and appealable order."

(with files from harnessracing.com)