Steve Asmussen v. Iowa Racing and Gaming Commission

IN THE COURT OF APPEALS OF IOWA

No. 22-0990
Filed December 20, 2023

STEVE ASMUSSEN,
Petitioner-Appellant,

vs.

IOWA RACING AND GAMING COMMISSION,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Celene Gogerty, Judge.

Petitioner appeals the decision of the district court that affirmed the

imposition of a fine by the Iowa Racing and Gaming Commission for the presence

of a prohibited substance in a horse. AFFIRMED.

Clark O. Brewster and Joseph C. DeAngelis of Brewster & DeAngelis PLLC,

Tulsa, Oklahoma, and Matthew Boles of Gribble, Boles, Stewart & Witosky Law,

Des Moines, for appellant.

Brenna Bird, Attorney General, and David M. Ranscht and Jeffrey C.

Peterzalek, Assistant Attorneys General, for appellee.

Heard by Greer, P.J., and Schumacher and Badding, JJ. Langholz, J.,

takes no part.
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SCHUMACHER, Judge.

Steve Asmussen appeals the decision of the district court that affirmed the

imposition of a fine by the Iowa Racing and Gaming Commission (IRGC) for the

presence of a prohibited substance in a horse. We find no violation of Asmussen’s

substantive due process rights. Asmussen also did not show the IRGC failed to

properly apply its own rules or that the agency’s decision was not supported by

substantial evidence. We affirm the district court’s decision.

I. Background Facts & Proceedings

Asmussen is an international thoroughbred racehorse trainer and trained

the racehorse Shang.1 Shang finished second in a race at Prairie Meadows

Racetrack and Casino on July 5, 2019. Prairie Meadows routinely conducts blood

and urine testing of all first and second place horses. The test of Shang’s blood

and urine showed a low level of atenolol, a prohibited substance. Asmussen

requested a second test, which was also positive for atenolol. Atenolol is a

medication commonly prescribed to humans for high blood pressure. It is a

prohibited substance for horses under the Drug Testing Standards and Practices

Program Model Rules Guidelines used by the Association of Racing

Commissioners International (ARCI).

A hearing before the Board of Stewards for Prairie Meadows was held on

May 15, 2020. Asmussen did not dispute the positive test result but provided

evidence about the potential cause of the presence of the substance in Shang. He

claimed there was no evidence atenolol was administered to the horse. He

1 Asmussen holds a license to train and racehorses in numerous jurisdictions,

including Iowa.
3

asserted the trace amount of atenolol was due to environmental factors beyond

his control.

The Board found, “[I]t was an inadvertent exposure, and not a deliberate

administration.” Also, “The Board feels the contamination most likely came from a

person closely associated with the horse, and not from the local water.” The Board

concluded, “Although it is likely that the horse carried the drug in his system due

to an inadvertent exposure, he nonetheless carried the drug in his system which

necessitates the disqualification to ensure the integrity of racing, and to instill

confidence in the betting public.”

The Board found Asmussen violated Iowa Administrative Code

rules 491-10.5(1)(a)(1), (2) and 491-10.7(1)(a), (b), and (c). The Board imposed a

fine of $1000 and determined Shang would be disqualified from the second-place

finish, so the purse money from the race would be redistributed. Asmussen’s

racing license in Iowa was not suspended.

Asmussen appealed the Board’s ruling to IRGC, and a hearing was held

before an administrative law judge (ALJ). The ALJ stated, “[T]he amount of

Atenolol present in Shang was at an extremely low level and would not have given

the horse any competitive benefit.” The ALJ found:

Asmussen has presented no evidence that would lead to a
conclusion that Shang’s positive test for Atenolol was somehow
tainted, unreliable, flawed, or otherwise not deserving of
credence. . . . Again, Asmussen’s primary claim was not that the
positive tests were wrong, but rather that they were caused by
environmental or accidental exposure. Accordingly, the prima facie
case, which was established by the positive test from a Commission-
approved laboratory, has not been rebutted. The Commission has
therefore established a violation of the trainer responsibility rule.
Whether this can be called “strict liability” is mere semantics. Any
evidence that the exposure may have been inadvertent or due to
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environmental exposure goes to the degree of penalty to be
imposed, not whether there was a violation.

The ALJ sustained the findings and penalties imposed by the Board of Stewards.

IRGC affirmed the ALJ’s decision without further opinion.

Asmussen petitioned for judicial review. The district court found no violation

of Asmussen’s procedural or substantive due process rights. The court also found

the IRGC’s ruling was supported by substantial evidence. It determined that the

IRGC’s ruling was not contrary to the IRCG’s rules as the rules do not require

evidence of the administration of a prohibited substance. The court stated the

rules reflect the legislature’s “intent to prohibit the presence of prohibited

substances in a horse’s system during a race and do not demonstrate any

particular concern for how the substance gets into the horse’s system.” The court

affirmed the IRGC’s decision. Asmussen now appeals.

II. Standard of Review

“In exercising judicial review of the agency’s action, the district court acts as

an appellate court, and its review is circumscribed by Iowa Code chapter 17A.”

Johnston v. Iowa Dep’t of Transp., 958 N.W.2d 180, 183–84 (Iowa 2021). “When

reviewing the decision of the district court’s judicial review ruling, we determine if

we would reach the same result as the district court in our application of the Iowa

Administrative Procedure Act.” Sladek v. Emp. Appeal Bd., 939 N.W.2d 632, 637

(Iowa 2020) (quoting Insituform Techs., Inc. v. Emp. Appeal Bd., 728

N.W.2d 781, 787 (Iowa 2007)). The agency’s factual findings are upheld on

appeal if they are supported by substantial evidence when the record is viewed as

a whole. Evenson v. Winnebago Indus., Inc., 881 N.W.2d 360, 366 (Iowa 2016).
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We consider whether there is substantial evidence to support the findings made

by the agency, not whether the evidence could support different findings. Larson

Mfg. Co. v. Thorson, 763 N.W.2d 842, 850 (Iowa 2009).

III. Substantive Due Process

Iowa has a trainer responsibility rule found in Iowa Administrative Code

rule 491-10.5(1)(a)(1), and provides that a horse trainer is responsible for:

The condition of horses entered in an official workout or race
and, in the absence of substantial evidence to the contrary, for the
presence of any prohibited drug, medication or other substance,
including permitted medication in excess of the maximum allowable
level, in such horses, regardless of the acts of third parties. A
positive test for a prohibited drug, medication, or substance,
including permitted medication in excess of the maximum allowable
level, as reported by a commission-approved laboratory, is prima
facie evidence of a violation of this rule or Iowa Code chapter 99D.

The Board of Stewards applied this rule, finding “Asmussen is the absolute

insurer of, and responsible for the condition of the horse he entered in the seventh

(7th) race on July 5, 2019.” The Board determined the presence of atenolol in the

horse after the race was prima facie evidence the drug was in the horse during the

race. The Board concluded, “Although it is likely that the horse carried the drug in

his system due to an inadvertent exposure, he nonetheless carried the drug in his

system which necessitates the disqualification to ensure the integrity of racing, and

to instill confidence in the betting public.”

In his petition for judicial review, Asmussen claimed the trainer responsibility

rule violated his right to substantive due process because it created an irrebuttable

presumption.2 See Weizberg v. City of Des Moines, 923 N.W.2d 200, 216

2 In his appeal to the IRGC, Asmussen raised this substantive due process claim.

The ALJ noted the agency could not address this constitutional claim and
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(Iowa 2018) (noting an irrebuttable presumption may violate substantive due

process rights). Asmussen asserts there is an irrebuttable presumption that if a

prohibited substance is present in a horse, the trainer is at fault no matter how the

substance was introduced into the horse’s system. He maintains that nothing in

the process allows him to rebut his lack of fault for the presence of the drug.

Accordingly, he argues that he should not be penalized because there was no

evidence he administered the prohibited substance to the horse.

But IRGC contends the presumption relates to a positive post-race test

which “means a horse ran the race while carrying the substance” and the rule

assigns liability for that finding, not fault. IRGC argues the legislature can assign

economic responsibility without fault to achieve deterrence goals. See id. at 217.

And we note that if we apply the rational-basis level of scrutiny, as suggested by

IRGC, that test is deferential to legislative judgment, but not a toothless standard

of review. Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 9 (Iowa 2004);

accord Mathews v. de Castro, 429 U.S. 181, 185 `(1976). So we address the

substantive due process analysis to find the “judicial guardrails” on the application

of this legislative action under the authority of Iowa Code section 99D.25 (2019).

Behm v. City of Cedar Rapids, 922 N.W.2d 524, 548 (Iowa 2019) (examining if the

preserved the issue. The ALJ’s decision was affirmed in its entirety by the IRGC.
Asmussen does not make separate claims under the federal and state
constitutional due process clauses. In his appellate brief he recognizes, “Iowa
courts ‘generally decline to apply divergent analyses under the two constitutions,’”
citing Clayton v. Iowa Dist. Ct., 907 N.W.2d 824, 827 (Iowa Ct. App. 2017).
Therefore, we will not separately analyze his substantive due process claim under
the federal and Iowa constitutions.
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state interest in highway regulation and safety under the statute are rationally

related to the means chosen to achieve that purpose).

The concept of substantive due process “prevents the government from

interfering with ‘rights implicit in the concept of ordered liberty.’” State v. Russell,

897 N.W.2d 717, 732 (Iowa 2017) (citation omitted). It is not easy to prove a

substantive due process violation. Bowers v. Polk Cnty. Bd. of Supervisors, 638

N.W.2d 682, 694 (Iowa 2002).

[The] substantive due process doctrine “does not protect individuals
from all governmental actions that infringe liberty or injure property
in violation of some law.” Rather, substantive due process is
reserved for the most egregious governmental abuses against liberty
or property rights, abuses that “shock the conscience or otherwise
offend . . . judicial notions of fairness . .. [and that are] offensive to
human dignity.” With the exception of certain intrusions on an
individual’s privacy and bodily integrity, the collective conscience of
the United States Supreme Court is not easily shocked.

Id. (quoting Blumenthal Inv. Trs. v. City of W. Des Moines, 636 N.W.2d 255, 265

(Iowa 2001)).

We consider a substantive due process claim in a two-step process:

Substantive due process claims have two stages of inquiry.
First, we must determine the “nature of the individual right involved.”
If the right implicated is fundamental, we apply strict scrutiny. Strict
scrutiny analysis requires us to determine “whether the government
action infringing the fundamental right is narrowly tailored to serve a
compelling government interest.” If the right implicated is not
fundamental, we only apply rational basis review. Rational basis
analysis requires us to determine whether there is “a reasonable fit
between the government interest and the means utilized to advance
that interest.”

Russell, 897 N.W.2d at 732 (internal citations omitted).

Asmussen was assessed a fine of $1000. A person “has a property interest

in not being subject to irrational monetary fines.” City of Sioux City v. Jacobsma,
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862 N.W.2d 335, 345 (Iowa 2015). In this situation, a rational basis test may be

applied. See id. Under the rational basis test, we “decide if there is a reasonable

fit between the means used to advance the government interest and the interest

itself.” Garrison v. New Fashion Pork LLP, 977 N.W.2d 67, 86 (Iowa 2022).

“Statutes are presumed constitutional, and we will not declare something

unconstitutional under the rational basis test unless it ‘clearly, palpably, and

without doubt infringe[s]’ a constitutional right.” Id. (alteration in original) (citation

omitted). “A court needs only to find a ‘realistically conceivable’ basis for the

statute toward a legitimate government interest.’” Id. (citation omitted).

In Allen v. Kentucky Horse Racing Authority, a trainer raised a claim much

like that raised by Asmussen. See 136 S.W.3d 54, 61 (Ky. Ct. App. 2004). Carl

Allen claimed the trainer responsibility rule in Kentucky3 was unconstitutional

because “horses may become contaminated from their environment, through no

fault of the trainer or the owner, by touching surfaces, bedding, hay, and water that

may have been in contact with a horse that had received” the prohibited substance.

Id. The court found the trainer responsibility rule was not unconstitutional, noting

it was a reasonable way to promote safety in horse racing. Id.

And in Casse v. New York State Racing & Wagering Board, the Court of

Appeals of New York addressed whether application of that state’s trainer

responsibility rule violated a trainer’s due process rights. 517 N.E.2d 1309, 1309

(N.Y. 1987). The New York trainer responsibility rule provided “the trainer of a

3 Under the Kentucky trainer responsibility rule, “the trainer bears primary
responsibility for the condition of all horses trained by him to ensure that no horse
will race with prohibited drugs or medication.” Deaton v. Ky. Horse Racing Auth.,
172 S.W.3d 803, 805 (Ky. Ct. App. 2004).
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thoroughbred race horse [was] liable for the impermissible presence of a restricted

substance in the horse’s system unless the trainer [could] show by substantial

evidence that he was, in fact, neither personally nor vicariously responsible.” Id.

The court concluded:

The stringent standard of responsibility imposed by this
State’s trainer responsibility rule, with its provision for the opportunity
of the trainer to rebut his culpability, strikes a fair balance between
the harshness of an absolute liability rule, on the one hand, and the
considerable difficulty of proving the trainer’s personal culpability, on
the other. As a measure reasonably calculated to protect the public
and competitors from tainted horse racing, and the horses from
injury, while at the same time avoiding the considerably more
onerous burden of absolute responsibility on the trainer, the rule
satisfies the requirements of due process of law under both the
Federal and State Constitutions.

Id. at 1312–13.

As noted, “[a] substantive due process violation is not easy to prove.”

Lennette v. State, 975 N.W.2d 380, 394 (Iowa 2022). The imposition of a fine to

the trainer of a horse that has tested positive for the presence of a prohibited

substance immediately after a race does not “shock the conscience.” See Save

Our Stadiums v. Des Moines Indep. Cmty. Sch. Dist., 982 N.W.2d 139, 150

(Iowa 2022). There is also a rational basis for the trainer responsibility rule, as it

acts “to ensure the integrity of racing, and to instill confidence in the betting public.”

We conclude Asmussen has not shown his substantive due process rights were

violated.
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IV. Imposition of Penalty

Asmussen contends the IRGC did not properly interpret its own rules when

it imposed a penalty.4 Rule 491-10.7(1) provides:

(a) No horse, while participating in a race, shall carry in its
body any medication, drug, foreign substance, or metabolic
derivative thereof, which is a narcotic or which could serve as a local
anesthetic or tranquilizer or which could stimulate or depress the
circulatory, respiratory, or central nervous system of a horse, thereby
affecting its speed.
....
(c) Proof of detection by the commission chemist of the
presence of a medication, drug, foreign substance, or metabolic
derivative thereof, prohibited by paragraph 10.7(1)(a) or (b), in a
saliva, urine, blood, or hair sample duly taken under the supervision
of the commission veterinarian from a horse immediately prior to or
promptly after running in a race shall be prima facie evidence that
the horse was administered, with the intent that it would carry or that
it did carry in its body while running in a race, a prohibited medication,
drug, or foreign substance in violation of this rule.
....
(f) The owner, trainer, groom, or any other person having
charge, custody, or care of the horse is obligated to protect the horse
properly and guard it against the administration or attempted
administration of a substance in violation of this rule. If the stewards
find that any person has failed to show proper protection and
guarding of the horse, or if the stewards find that any owner, lessee,
or trainer is guilty of negligence, they shall impose discipline and take
other action they deem proper under any of the rules including
referral to the commission.

(Emphasis added).

Asmussen asserts that the rules require proof a prohibited substance was

administered to a horse. He states that under rule 491-10.7(1)(c) the proof of

4 Asmussen also claims the IRGC regulations do not follow the enabling legislation

in Iowa Code section 99D.25 and the regulations are thus entitled to no deference.
He did not raise this issue before the IRGC or the district court. We conclude this
issue has not been preserved for our review and we do not address it. See Meier
v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002) (“It is a fundamental doctrine of
appellate review that issues must ordinarily be both raised and decided by the
district court before we will decide them on appeal.”).
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administration may be based on a presumption because of the presence of the

substance in the horse, but the presumption may be rebutted by evidence the

substance was not administered to the horse. Asmussen contends that he

rebutted the presumption of administration because the Board of Stewards

specifically found, “[I]t was an inadvertent exposure, and not a deliberate

administration.” Asmussen claims that because he rebutted the presumption of

administration of the prohibited substance, he should not have been penalized.

The ALJ rejected Asmussen’s argument, stating

Properly understood under the prima facie scheme embodied in this
rule, the violation may be rebutted, for example, by evidence that the
drug test was unreliable, or flawed, or had some other shortcoming.
In other words, the burden-shifting scheme is not rebutted by a
showing that the trainer did not affirmatively administer the drug or
that there was no intentional act that led to the positive test. Rather,
it may be rebutted by evidence of an unreliable or erroneous test. As
the rule makes clear, the trainer is strictly responsible for the
“condition of the horse” and “any prohibited drug . . . regardless of
the acts of third parties.”

The ALJ then found Asmussen presented no evidence to show the test was

unreliable and thus had not rebutted the presumption the horse had raced with a

prohibited substance in its system. This analysis was affirmed by the IRGC.

“[L]egal systems can assign economic losses without fault to achieve

deterrence goals.” Wiezberg, 923 N.W.2d at 217. The goals for the IRGC rules

are set out by the legislature in section 99D.25(2):

The general assembly finds that the practice of drugging or
numbing a horse or dog prior to a race:
a. Corrupts the integrity of the sport of racing and promotes
criminal fraud in the sport;
b. Misleads the wagering public and those desiring to
purchase a horse or dog as to the condition and ability of the horse
or dog;
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c. Poses an unreasonable risk of serious injury or death to the
rider of a horse and to the riders of other horses competing in the
same race; and
d. Is cruel and inhumane to the horse or dog so drugged or
numbed.

The district court held,

These findings evidence an intent to prohibit the presence of
prohibited substances in a horse’s system during a race and do not
demonstrate any particular concern for how the substance gets into
the horse’s system. “It is obvious that the legislature meant to
prohibit the placing of any drug or other like substance into the body
of a [horse,] where it is not normally found, in order to affect the
outcome of a race.” [State v.] Brumage, 435 N.W.2d [337,] 343
[(Iowa 1989)].

We affirm the district court’s conclusion that the IRGC’s interpretation of its rules

was not “[t]he product of reasoning that is so illogical as to render it wholly

irrational” or “inconsistent with a rule of the agency.” See Iowa Code

§ 17A.19(10)(g), (i). The IRGC could properly determine Asmussen was

responsible for the presence of atenolol in Shang’s system although there was no

evidence Asmussen administered the substance to the horse.

V. Sufficiency of the Evidence

Asmussen claims the IRGC’s findings are not supported by substantial

evidence. He contends the rules require a finding that a prohibited substance

affected a horse’s speed. He states no evidence shows the low level of atenolol

found in Shang affected the horse’s speed. He also states that the IRGC did not

show that atenolol was a prohibited substance.

The legislature has prohibited:

The drugging or numbing of a horse or dog with knowledge or
with reason to believe that the horse or dog will compete in a race
while so drugged or numbed. However, the commission may by rule
13

establish permissible trace levels of substances foreign to the natural
horse or dog that the commission determines to be innocuous.

Iowa Code § 99D.25(3)(b). Rule 491-10.7(1)(a) prohibits a horse from carrying in

its body while participating in a race a prohibited substance “which could stimulate

or depress the circulatory, respiratory, or central nervous system of a horse,

thereby affecting its speed.” (Emphasis added).

Asmussen argues the rules only seek to regulate substances that could

affect a horse’s speed. See Iowa Admin. Code r. 491-10.7(1)(a). He also notes

that the legislature has recognized that trace levels of some substances may be

innocuous. See Iowa Code § 99D.25(3)(b).

Section 99D.23(1) provides the IRGC “may adopt by reference nationally

recognized standards as determined by the [IRGC] or may adopt any other

procedure or standard.” The Board of Stewards noted the ARCI Drug Testing

Standards and Practices Program Model Rules Guidelines classifies atenolol as a

Class 3, Penalty B drug. The Board reviewed the recommended penalties for the

presence of atenolol in a horse. The ALJ also stated, “Iowa follows guidelines

promulgated by [ARCI], which publishes the Drug Testing Standards and Practices

Program Model Rules Guidelines. These Guidelines classify Atenolol as a

Class 3, Penalty B drug.” The IRGC properly relied on nationally recognized

standards that list atenolol as a prohibited substance.

The Board also found, “There is no acceptable level for Atenolol in any

sample, as there is no screening limit.” While the IRGC “may by rule establish

permissible trace levels of substances foreign to the natural horse or dog that the

commission determines to be innocuous,” the IRGC rules have not established a
14

permissible or innocuous level for atenolol. See Iowa Code § 99D.25(3)(b); Iowa

Admin. Code r. 491-10.7(1)(k) (listing a permissible level for some substances).

The IRGC could properly determine that any level of atenolol in a horse’s system

is not permissible.

Furthermore, as the district court pointed out, “rule 10.7(a)(1) does not state

that a violation requires a finding that a prohibited substance present in the horse’s

system actually did affect the horse’s speed, but rather merely provides that a

horse cannot ‘carry in its body’ any of the prohibited substances that could affect

a horse’s speed.” The IRGC was not required to show that the level of atenolol in

Shang’s system affected the horse’s speed. Therefore, Asmussen’s contentions

concerning whether this proposition is supported by substantial evidence are

unavailing.

We affirm the decision of the district court that affirmed the IRGC imposing

a fine for the presence of a prohibited substance in a horse.

AFFIRMED.