No. 91-013 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF THE PROPOSED 

DISCIPLINARY TREATMENT OF THE 

OCCUPATIONAL VETERINARIAN'S 

LICENSE OF JEFFREY C. PEILA, 

LICENSE NO. 9302. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Charles F. Moses; Moses Law Firm, Billings, Montana 

For Respondent: 

Robert P. Verdon, Montana Department of Commerce, 

Helena, Montana 

Filed: 

Submitted on Briefs: May 16, 1991 

Decided: July 9, 1991 
Justice Karla M. Gray delivered the Opinion of the Court. 

The appellant, Dr. Jeffrey C. Peila, appeals from a judgment 

of the District Court of the First Judicial District, Lewis and 

Clark County, which affirmed a final order of the Board of Horse 

Racing, an agency of the Montana Department of Commerce. In its 

order, the Board granted summary judgment against the appellant and 

suspended his license to practice veterinary medicine at Montana 

racetracks for two years. It also fined him $1,000. We affirm. 

We restate the issues raised by the appellant as follows: 

1. Do the Board's medication and veterinary regulations 

constitute a valid delegation of legislative authority? 

2. Are the Board's findings of fact supported by substantial 

evidence and are its conclusions of law correct? 

3. Did the Board properly grant summary judgment? 

The appellant is a licensed and practicing veterinarian, 

having been granted a license to practice veterinary medicine in 

clinics and as part of a farm or ranch practice by the Board of 

Veterinary Medicine, Montana Department of Commerce. In addition, 

prior to the commencement of the current proceedings, he held a 

separate license with the Board of Horse Racing permitting him to 

practice veterinary medicine on animals at race tracks in the State 

of Montana. 

During the 1987 horse racing season, the pertinent regulations 

of the Board of Horse Racing read as follows: 

ARM 8.22.1401(18) Anytraine[r], groom, owner, veterinar- 
ian, or other person found to be responsible for administering or permitting to be administered to any horse 

entered to be raced, any forbidden substance as shown by 

the test and/or analysis of the approved chemist shall 

be subject to a fine, suspension or both. No veterinarian shall be subject to any penaltv for administerins any 

substance insofar as he . . . has informed the owner, 

trainer, or other person requestinq the treatment of the 

name, dosaqe and probable effect of the medication used. 

(Emphasis added.) 

ARM 8.22.1501(11) No person shall improperly tamper or 

attempt to tamper with any horse in such a way as to 

affect his speed in a race, nor shall he counsel or in 

any way aid or abet such tampering. (Emphasis added.) 

On October 3, 1987, a horse named Mr. Squeaky Ruler raced at 

Metrapark Fairgrounds in Billings, Montana. After the race, the 

horse was subjected to a urinalysis examination pursuant to the 

rules of the Board of Horse Racing. The results of the examination 

revealed that Mr. Squeaky Ruler had a Schedule 5 narcotic painkiller called Buprenorphine in his system during the running of the 

race. As a result of this test, a license discipline contested 

case was instituted by the Board of Horse Racing against the 

appellant. On June 6, 1988, the Board issued to the appellant a 

Notice of Proposed Action and Opportunity for Hearing (License 

Discipline). The Notice alleged that the appellant administered 

medications to Mr. Squeaky Ruler and two other racehorses without 

informing the owner, trainer or person requesting the treatment of 

the name, dosage, and probable effect of the medications used, in 

violation of ARM 8.22.1401(18). The Notice also alleged that the 

administration of the medications to the racehorses amounted to 
improperly tampering, or attempting to tamper, or abetting in the 

tampering, with a horse in such a way as to affect its speed in a 

race, in violation of ARM 8.22.l5Ol(ll) . The Notice was subsequently amended in response to objections raised by the appellant 

to add the language "knowingly and intentionally" to reflect the 

appellant's state of mind when he administered the medications. 

On June 22, 1988, the appellant responded to the Notice by 

requesting a hearing before the Board and appropriate time for 

discovery. Thereafter, a hearing examiner was appointed to the 

case by the Board. The record shows that, on July 22, 1988, as 

part of the discovery process, the appellant requested information 

from the Department of Commerce regarding witnesses, documentary 

evidence and scientific evidence that the Department claimed 

supported the allegations in the Notice. The Department responded 

to the discovery requests on August 2, 1988. 

On September 1, 1988, the appellant filed a motion for summary 

judgment setting forth the legal bases upon which dismissal of the 

proceedings should be granted. No action was taken on the motion 

at this time. Discovery continued; the Department noticed up the 

depositions of the appellant as well as two other veterinarians, 

Dr. James H. Bailey and Dr. Richard Richardson. 

On March 18, 1989, after the appellant was deposed but before 

Dr. Bailey and Dr. Richardson were deposed, the appellant filed a 

second motion for summary judgment. It set forth substantially 

the same grounds for dismissing the proceedings as contained in 
the appellant's initial motion for summary judgment. 

After Dr. Bailey and Dr. Richardson were deposed, the Department filed its own motion for summary judgment on June 27, 1989. 

The Department asserted that there were no genuine issues of 

material fact and that it was entitled to judgment as a matter of 

law regarding the offenses alleged in the Notice. Both parties 

briefed their motions for summary judgment and orally argued their 

positions to the hearing examiner on August 25, 1989. Thereafter, 

the hearing examiner issued proposed findings of fact, conclusions 

of law, and order granting summary judgment against the appellant. 

The appellant then submitted written objections to the hearing 

examiner's ruling. 

On November 30, 1989, the Board of Horse Racing heard oral 

argument by counsel for the parties. In an order dated February 

9, 1990, the Board issued its findings, conclusions, and final 

order upholding the ruling of the hearing examiner. Specifically, 

the Board found that on October 3, 1987, the appellant injected the 

racehorse Mr. Squeaky Ruler with the drug Buprenorphine a few hours 

before the horse was to run in a race and that the appellant 

injected Mr. Squeaky Ruler and two other racehorses with the same 

drug on several other occasions. All three racehorses were trained 

by Don Lewis of Blackfoot, Idaho. It further found that each time 

the drug was administered, the appellant failed to inform the 

trainer of the name of the drug, the amount of dosage, or its 

probable effect on the horse. In addition, the Board found that 
the drug was administered with the intent to affect the speed and 

performance of the horses during their races. The Board concluded 

that the appellant administered the injections in violation of ARM 

8.22.1401 (18) and ARM 8.22.1501 (11) . The Board granted summary 

judgment against the appellant and suspended his license to 

practice veterinary medicine at Montana racetracks for two years. 

It also fined him $1,000. 

On February 28, 1990, the appellant petitioned the District 

Court of the Thirteenth Judicial District, Yellowstone County, for 

judicial review of the Board's final order pursuant to the 

provisions of 5 2-4-702, MCA. Shortly thereafter, the parties 

stipulated to a change of venue to the District Court of the First 

Judicial District, Lewis and Clark County. The District Court, 

after reviewing the record before the Board and the briefs and 

arguments of the parties, affirmed the Board's findings of fact, 

conclusions of law and final order on November 14, 1990. The 

appellant's subsequent motion to alter or amend the judgment was 

denied by the District Court on December 26, 1990. This appeal 

followed. 

I. 

Dothe Board's medication and veterinary rules and regulations 

constitute a valid delegation of legislative authority? 

The appellant contends that the Board's medication and 

veterinary regulations are invalid because the statutes authorizing 
the Board to adopt rules and regulations governing horse racing, 

§ 23-4-101 et seq., MCA, provide no standards or guidelines for the 

exercise of the authority sought to be delegated. 

With respect to the validity of a delegation of power by the 

legislature to an administrative agency, this Court has stated as 

follows: 

If the legislature fails to prescribe with reasonable 

clarity the limits of power delegated to an administrative agency, or if those limits are too broad, its 

attempt to delegate is a nullity. 

On the other hand a statute is complete and validly 

delegates administrative authority when nothing with 

respect to a determination of what is the law is left to 

the administrative agency, and its provisions are 

sufficiently clear, definite, and certain to enable the 

agency to know its rights and obligations. 

Milk Control Board v. Rehberg (1962), 141 Mont. 149, 161, 376 P.2d 

508, 515, citing Bacus v. Lake County (1960), 138 Mont. 69, 354 

In Bacus, the enabling statutes provided authority for county 

and district boards of health to enact rules and regulations 

"pertaining to the prevention of disease and the promotion of 

public healthN over their areas of jurisdiction. In holding that 

the statutes constituted an invalid delegation of legislative 

authority, this Court stated: 

We do not believe that this provision is sufficiently 

definite to lay down proper standards for the guidance 

of the agency. What did the legislature mean by "prevention of disease and the promotion of public healthn? 

Does this only mean that the boards of health can 

make quarantine regulations, or could they go so far as 

to prescribe a series of physical exercises for the 
populations within their areas for the promotion of 

public health? May these boards make rules and regulations concerning mental health, and birth control? . . 

w, 138 Mont. at 79, 354 P.2d at 1061. We further stated that: 

We recognize that there has been a relaxation of the 

requirement of specific standards and an allowance of 

more general standards for grants of power to administrative bodies in the area of police [power] regulation, 

including public health. . . . However, even in these 

areas we hold that there must be a more definite standard 

set out by the legislature than has been done in the case 

at bar. 

Bacus, 138 Mont. at 82, 354 P.2d at 1063. 

In our view, the enabling statutes at issue in the present 

case are distinguishable from those held to be invalid in Bacus. 

Section 23-4-104, MCA, authorizes the Board to "adopt rules to 

govern race meets and the parimutuel system." Unlike the statutes 

in Bacus, 5 23-4-104, MCA, goes on to specify thirteen particular 

areas of the horse racing business which the legislature has 

determined to be in need of regulation. Those areas of regulation 

set forth in 1 23-4-104, MCA, which are pertinent to the proceedings against the appellant include: 

(4) corrupt practices; 

(6) licensing of all personnel who have anything to do 

with the substantive operation of racing; [and] 

(8) the veterinary practices and standards which must 

be observed in connection with race meets; 
These statutory provisions give the Board definite instructions as to what particular areas of the horse racing business 

require regulation: as such, they are sufficient to enable the 

Board to know its rights, obligations and duties. Accordingly, we 

hold that the Board's medication and veterinary rules and regulations constitute a valid delegation of legislative authority. 

In a related argument, the appellant contends that the 

enabling statutes and the Board's regulations are unconstitutionally vague in that neither contain any provisions describing the 

"state of mindH required to establish a violation of any of the 

Board's regulations. Citing State v. Austin (1985), 217 Mont. 265, 

704 P.2d 55 and other authority, he maintains that the requisite 

state of mind must be contained in the regulations in order to 

provide notice of what type of conduct is prohibited and when the 

state of mind is not set forth, the regulation is "unworkable and 

unconstitutional." We disagree. 

State v. Austin, cited by the appellant, was a criminal case. 

Courts have uniformly treated disciplinary actions by administrative agencies as civil in nature. Pence v. Idaho State Horse 

Racing Comm'n (Idaho App. 1985), 705 P.2d 1067, 1069 (citing 

cases). As the Idaho Court of Appeals stated in Pence, incidental 

resemblances and analogies to criminal proceedings do not alter the 

inherently civil nature of such administrative proceedings. Pence, 

705 P.2d at 1069. 

This Court addressed the question of vagueness in Rierson v. 
State (1980), 188 Mont. 522, 614 P.2d 1020. We stated that a 

statute violates due process for vagueness when the language used 

does not sufficiently define the required conduct and persons of 

common intelligence must necessarily guess at its meaning. 

Rierson, 188 Mont. at 526, 614 P.2d at 1023. General principles 

of statutory construction also apply to construction of administrative rules. State v. DeMille (Haw. App. 1988), 763 P.2d 5 

The statutes and regulations pertinent to the present case are 

not unconstitutionally vague. The conduct prohibited is specifically and clearly stated in the pertinent regulations. ARM 

8.22.1401(18) provides that: 

Any traine[r], groom, owner, veterinarian, or other 

person found to be responsible for administering or 

permitting to be administered to any horse entered to be 

raced, any forbidden substance as shown by the test 

and/or analysis of the approved chemist shall be subject 

to a fine, suspension or both. No veterinarian shall be 

subiect to anv penalty for administerins any substance 

insofar as he . . . has informed the owner, trainer, or 

other person requestinq the treatment of the name. 

dosaqe and probable effect of the medication used. 

(Emphasis added.) 

In addition, ARM 8.22.1501(11) states: 

No person shall improperly tamper or attempt to tamper 

with any horse in such a way as to affect his speed in 

a race, nor shall he counsel or in any way aid or abet 

such tampering. (Emphasis added.) 

Section 23-4-202 (3) , MCA, expressly provides that the Board may 

suspend or revoke any license issued by the Department of Commerce 

and assess a fine, not to exceed $1,000, against a licensee who 

violates anv provisions of Title 23, Chapter 4, or any rule or 
order of the Board; in addition to the suspension or revocation and 

fine, the Board may forbid application for relicensure for a twoyear period. The regulations enacted by the Board clearly define 

prohibited conduct to persons of common intelligence and the 

statute clearly sets out the sanctions for violation of Board 

regulations. 

11. 

Are the Board's findings of fact supported by substantial 

credible evidence and are its conclusions of law correct? 

Section 2-4-704, MCA, sets forth the statutory standards for 

judicial review of administrative decisions. This Court has 

interpreted g 2-4-704, MCA, to mean that an agency's findings of 

fact are subject to a "clearly erroneous" standard of review while 

an agency's conclusions of law will be upheld if the agency's 

interpretation of law is correct. Steer, Inc. v. Dept. of Revenue 

(Mont. 1990), 803 P.2d 601, 603, 47 St.Rep. 2199, 2200. 

In his deposition, the appellant stated that he administered 

Buprenorphine to each horse in question on several occasions, 

always on the day of and prior to a race in which each horse was 

scheduled to run. He further stated that the drug was a painkiller 

sold under the name of Buprenex and that he administered it to Mr. 

Squeaky Ruler with the intent to relieve the horse of pain so that 

the horse would run "straighter and smoother" the way it normally 

did before becoming "mildly lame." The appellant chose that 
particular drug because in his judgment it was a fairly mild drug 

and would not be detected in a urinalysis examination. By his own 

admission, the appellant did not inform the trainer of the name of 

the medication administered, its dosage, or the probable effect of 

the medication on the horse. In addition, documentation of the 

appellant's bills to the trainer of the horses in question was also 

offered as evidence of his administration of the drug to the horses 

prior to their races. 

This evidence is undisputed and is substantial and credible. 

Therefore, the Board's findings of fact are not clearly erroneous. 

The appellant contends that, even in light of this factual 

evidence, he did not violate any of the Board's regulations. He 

contends that he cannot be held in violation of the Board's 

regulations on the basis of medicating a racehorse before a race 

because under the regulations the trainer is absolutely responsible 

for the condition of any horse entered in a race (ARM 

8.22.1401 (8) ) ; a veterinarian may medicate a racehorse with FDA 

approved drugs (ARM 8.22.1401(9) and (17)); and there are no time 

limitations relative to medication (ARM 8.22.1401(10)). we 

disagree. 

The Board did not conclude that the appellant violated any of 

the regulations to which the appellant refers. The Board concluded 

that he violated ARM 8.22.1401 (18) , which requires the veterinarian 

to inform the owner, trainer or person requesting the treatment of 

the name of the medication, its dosage, and its probable effect on 
the horse, and ARM 8.22.1501(11) , which expressly prohibits any 

person from tampering with a horse so as to affect its speed in a 

race. It is true that, under the regulations, a veterinarian may 

medicate a horse with an FDA approved drug at any time before a 

race. However, that medication may not affect the speed of the 

horse during the race. Given the appellant's own admissions 

regarding the administration of the drug Buprenorphine to the 

horses in question, we hold that the Board correctly concluded that 

the appellant violated ARM 8.22.1401(18) and ARM 8.22.1501(11). 

111. 

Did the Board properly grant summary judgment? 

The appellant contends that the Board improperly granted 

summary judgment in this case, arguing that there were material 

factual issues in dispute and that under the Montana Administrative 

Procedure Act (MAPA) he had the right to an evidentiary hearing. 

Procedural due process requires that parties be given reasonable 

notice and a reasonable opportunity to be heard; these due process 

requirements are reflected in MAPA in 5s 2-4-601, and 2-4-612(1), 

MCA. Section 2-4-612(1), MCA, provides that "[olpportunity shall 

be afforded all parties to respond and present evidence and 

argument on all issues involved." (Emphasis added.) However, due 

process does not reguire development of facts through an widentiary hearing when there are no material factual issues in dispute. 

Smith v. State Dept. of Revenue, CSED (Alaska l99O), 790 P.2d 1352, 
1353. See also, K. Davis, 1989 Su~~lement to Administrative Law 

Treatise, 5 12.10 at 332-34. 

There were no material factual issues in dispute in the 

present case. The appellant's own deposition testimony negated any 

material factual issues. In addition, the appellant himself moved 

for summary judgment, thereby acquiescing to a summary disposition 

of the proceedings. Moreover, the hearing on the motions for 

summary judgment affordedthe appellant fair opportunity to contest 

the legal issues raised. Accordingly, we hold that the Board 

properly granted summary judgment under the circumstances of this 

case. 

Af f inned. 

We concur: 
July 9, 2991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Charles F. Moses 

Moses Law Firm 

P.O. Box 2533 

Billings, MT 59103 

Robert P. Verdon, Legal Counsel 

Dept. of Commerce 

111 North Jackson, Lower Level 

Helena, MT 59620 

ED SMITH 

CLERK OF THE SUPREME COURT