Ruis Attorney to Push CHRB to Explain Justify Decision

Attorney Darrell Vienna, representing horseman Mick Ruis, plans to again ask the California Horse Racing Board for further detail on how it arrived at a decision to not disqualify Justify  from victory in the 2018 Santa Anita Derby (G1) after he tested positive for scopolamine in a post-race test.

As reported by the Louisville Courier-Journal Oct. 15 and confirmed by Vienna Oct. 16, the CHRB has rejected an initial request for a hearing on the decision. Vienna told BloodHorse on Wednesday that he plans a more extensive request early next week because he believes the CHRB response failed to answer his questions.

In denying the request, CHRB general counsel John McDonough cited Business and Professions Code 19577. 

"Please be advised that the board dismissed the matter as authorized under Business and Professions Code 19577(d)," McDonough said in a response to Vienna. "Therefore, further hearing on the subject is not required or warranted."

Vienna said that response didn't address his questions.

"They gave a response, but I would characterize it as a non-response," Vienna said, adding that in his request for a hearing he asked for reasons why the regulator didn't take action following the post-race positive for Justify. "I was asking for the basis of their decision, and they responded by citing the rule that allows them to make such a decision."

The New York Times broke the story Sept. 11 that although Justify tested positive for scopolamine, the CHRB—behind closed doors—opted to not take action.

Ruis owned and trained 2018 Santa Anita Derby runner-up Bolt d'Oro . The day after the New York Times story, Ruis told BloodHorse that had Bolt d'Oro been declared the winner, he not only would have picked up a bigger check that day but his colt would have been more valuable in the stud deal, with a grade 1 win at 3 to go along with his two grade 1 wins at 2. He called for further explanation from the board.

"How can the regulatory board support a decision that goes against its own rules that called for a disqualification and loss of purse?" Ruis said Sept. 12, referencing the report that at the time of the infraction, California called for disqualification of horses who test positive for scopolamine. "Do they even have the authority to do that? If so, that process should be changed."

CHRB equine medical director Dr. Rick Arthur said Sept. 12 that he determined the positive was caused by environmental contamination and that he and CHRB executive director Rick Baedeker, for that reason, recommended the board not call a positive. He said the board unanimously approved that recommendation.

Scopolamine: Substance in Middle of Justify Scandal

This approach is in line with the rule cited in the CHRB's response to Vienna. That section of the rule notes: "Any recommendation to the board by the executive director to dismiss the matter shall be by mutual agreement with the equine medical director. The authority for the disposition of the matter shall be the responsibility of the board."

Vienna, on behalf of Ruis, also wants more clarity and explanation on the timing of changes to CHRB rules on scopolamine. The CHRB updated scopolamine to a non-disqualification substance—the current rule—but Vienna said that at the time of the race the rules called for disqualification. He wants to know how far along the CHRB was in making any changes to that rule.

Vienna said he's not necessarily opposed to the regulator making a determination that a positive test was the result of environmental contamination, but he questions a protocol that allows such a decision to be made behind closed doors. Vienna plans a follow-up request on the matter to the CHRB and possibly the governor's office. He said a public hearing should still be possible, and he hopes the CHRB reconsiders.