J. Frederick Huff, Jr., Appellant-Appellant,
Ohio State Racing Commission, Appellee-Appellee.
APPLICATION FOR RECONSIDERATION
& McGovern, LP A, and John A. Izzo, for appellant.
Michael DeWine, Attorney General, and Paul Kulwinski, for
1} Appellant, J. Frederick Huff, Jr., has filed a
timely application for reconsideration, pursuant to App.R.
26(A), asking this court to reconsider its decision rendered
on December 22, 2016 in Huff v. Ohio State Racing
Comm., 10th Dist. No. 15AP-586, 2016-Ohio-8336.
Appellee, Ohio State Racing Commission
("commission"), filed a memorandum in opposition.
For the following reasons, we grant appellant's
application for reconsideration.
2} The test generally applied on the filing of an
application for reconsideration in the court of appeals is
whether the application calls to the attention of the court
an obvious error in its decision or raises an issue for
consideration that was either not considered at all or was
not fully considered by the court when it should have been.
Columbus v. Hodge, 37 Ohio App.3d 68 (10th
Dist.1987); Matthews v. Matthews, 5 Ohio App.3d 140
(10th Dist.1981). " '[A]n application for
reconsideration is not designed for use in instances where a
party simply disagrees with the conclusions reached and the
logic used by an appellate court.' " Columbus v.
Dials, 10th Dist. No. 04AP-1099, 2006-Ohio-227, ¶
3, quoting State v. Owens, 112 Ohio App.3d 334, 336
(11th Dist.1996). "App.R. 26 provides a mechanism by
which a party may prevent miscarriages of justice that could
arise when an appellate court makes an obvious error or
renders an unsupportable decision under the law."
Owens at 336.
3} In this court's decision, we concluded that
the commission erred in finding appellant violated Ohio
Adm.Code 3769-18-01, but did not err in finding appellant
violated Ohio Adm.Code 3769-18-02 and 3769-18-03. Appellant
argues this court committed an obvious error in our analysis
of Ohio Adm.Code 3769-18-02 and 3769-18-03.
4} Appellant argues he could not have violated Ohio
Adm.Code 3769-18-02 because he was not present in the state
testing barn when the horse left the barn before the
veterinarian obtained all required specimens and it was the
groom who was responsible for the horse and confirming the
veterinarian obtained all required specimens. Further, he
argues that he is only strictly liable for the condition of
the horse, not for the horse remaining in the testing barn.
5} Ohio Adm.Code 3769-18-02(A) is known as the
trainer responsibility rule, or absolute insurer rule, and
provides that the "[t]rainer shall be the absolute
insurer of, and responsible for, the condition of the horse
entered in a race, regardless of the acts of third
parties." Further, the rule requires the horse to
"remain in the state testing barn area until required
specimens have been obtained by the veterinarian and until he
shall have released said horses." This language provides
that the trainer is responsible for the horse. The language
does not limit the strict liability to positive drug testing,
but imposes strict liability on the trainer for the condition
of the horse.
6} Ohio Adm.Code 3769-18-03(A) provides, as follows:
The owner, trainer, groom or other representative must be
present in the state testing barn when a test sample is taken
from the horse, and must remain until the test sample is
sealed. The official tag attached to a test sample shall be
signed by the owner, trainer, groom or other representative,
as witness to the taking of such test sample. Willful failure
to be present at, or a refusal to allow, or any act or threat
to impede or prevent or otherwise interfere with, the taking
of any such test sample shall subject the ...