3 Del. Admin. Code § 1001-21.0

Current through Register Vol. 28, No. 5, November 1, 2024

Section 1001-21.0 - Substance Abuse or Addiction

21.1 Statement of Purpose

21.1.1 The rules in this part establish and describe requirements, criteria, standards and procedures designed to monitor, test for and ultimately control the use of alcohol and drugs by persons within the jurisdiction of the Delaware Thoroughbred Racing Commission. The purpose of these rules is to eliminate substance abuse and thereby enhance the safety, integrity and decorum of horse racing in the State of Delaware. The Commission shall promulgate administrative regulations for effectively preventing the use of improper devices, the administration of drugs or stimulants or other improper acts for the purpose of affecting the speed or health of horses in races in which they are to participate. The Commission is also authorized to promulgate administrative regulations for the legal drug testing of licensees. The Commission is authorized to contract for the maintenance and operation of a testing laboratory and related facilities, for the purpose of saliva, urine, or other tests for enforcement of the Commission's drug testing rules. The licensed persons or associations conducting thoroughbred racing shall reimburse the Commission for all costs of the drug testing programs established pursuant to this section. Increases in costs of the aforementioned testing program shall be reasonable and related to the expansion in the number of days of racing and the number of races held, the need to maintain competitive salaries, and inflation. The Commission may not unreasonably expand the drug testing program beyond the scope of the program in effect as of June 30, 1998. Any decision by the Commission to expand the scope of the drug testing program that occurs after an administrative hearing, at which the persons or associations licensed under 3 Del.C. § 10121 consent to such expansion, shall not be deemed an unreasonable expansion for purposes of this section. The Commission, in addition to the penalties contained in 3 Del.C. § 10125, may impose penalties on licensees who violate the drug testing regulations including the imposition of fines or assessments for drug testing costs.

21.2 Scope

21.2.1 These rules shall be deemed to apply to every licensed person and all employees of licensees within the jurisdiction of the Delaware Thoroughbred Racing Commission. Exception -- Owners who are licensees of the Commission are not subject to this part unless they are otherwise eligible as a result of holding another type of license.

21.3 Violations

21.3.1 It shall be a violation of the rules of racing, subjecting the offender to discipline by the Commission or its designee:

21.3.1.1 To possess, without a valid prescription, any controlled substance while on the premises of a horse racing enclosure within the jurisdiction of the Delaware Thoroughbred Racing Commission;

21.3.1.2 Any individual possessing or under the influence of a prescription medication shall produce for inspection a valid prescription for the medication within twenty-four (24) hours upon demand by the Commission or its designee. The failure to produce the prescription at this time constitutes a separate violation.

21.3.1.3 To be intoxicated or under the influence of alcohol or a controlled substance while on the premises of a horse racing enclosure within the jurisdiction of the Delaware Thoroughbred Racing Commission;

21.3.1.4 To engage in the illegal sale or distribution of alcohol or a controlled substance;

21.3.1.5 To possess any equipment, products or materials of any kind which are used or intended for the use of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, possessing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled dangerous substance while on the premises of a horse racing enclosure within the jurisdiction of the Delaware Thoroughbred Racing Commission;

21.3.1.6 To refuse to submit to urine or drug testing, when notified that such testing is based upon a random drug testing procedure, or is based upon reasonable suspicion that the person to be tested is using drugs or alcohol, or is based upon actions which demonstrate that the individual is impaired.

21.4 Testing Procedures - General

21.4.1 At its discretion, the Commission or its designee may conduct random or episodic drug and/or alcohol testing, as well as testing based upon reasonable suspicion in order to ensure the safety, integrity and decorum of Delaware thoroughbred racing.

21.4.2 Any licensed person and all employees of licensees within the jurisdiction of the Delaware Thoroughbred Racing Commission, except as noted in Rule 21.2, may be subjected to a urine test, blood test or any other test approved by the Commission in a manner prescribed by the Delaware Thoroughbred Racing Commission. The failure to submit to such a test when requested to do so by the Commission or their designee shall subject the offender to discipline as provided in Rule 21.8.

21.4.3 No prior notice need be given as to the onset or cessation of random testing.

21.4.4 Testing based on reasonable suspicion will be conducted just before, during, or just after performance of duties when a supervisor or company official observes behavior or appearance that is characteristic of drug or alcohol misuse and/or has reasonable suspicion to believe the individual has violated the Commission's prohibitions on drug or alcohol use.

21.4.5 Random testing will be conducted on a random, unannounced basis just before, during or just after performance of duties. Names of individuals to be tested will be selected randomly. If a name is selected more than once in the same month, it will be eliminated and another selection will be made. If a name is selected and the individual cannot be tested within the month, the Commission may test the individual at another time. Once notified of a random test, an employee must proceed immediately to the test site.

21.4.6 Return-to-duty testing will be conducted when an individual has violated the Commission's prohibitions on drug or alcohol use and returns to duty.

21.4.7 Follow-up testing will be conducted after there has been a determination that an employee is in need of assistance in resolving problems associated with drug or alcohol misuse. Tests will be unannounced and conducted just before, during or just after the performance of duties. Follow-up testing may be extended for up to sixty (60) months following return to duty.

21.5 Testing Procedures - Urine and Blood Testing

21.5.1 Any licensed person and all employees of licensees within the jurisdiction of the Delaware Thoroughbred Racing Commission, except as noted in Rule 21.2, who has been requested to submit to a test for the presence of drugs or alcohol shall provide the requested sample without unreasonable delay to the designee of the Commission. The sample so taken shall be immediately sealed and tagged for identification. The sealing and tagging of the sample shall be witnessed by the individual tested. It shall be the obligation of the individual tested to cooperate fully with the representative of the Commission obtaining and securing a sample.

21.5.2 If a field screening test indicates the presence of alcohol or a controlled substance, the test results shall be confirmed by a laboratory acceptable to the Commission. When sample quantity permits, each test sample shall be divided into portions so that one portion may be used to confirm the field screening test and another portion may be used by the individual tested to obtain an independent analysis of the sample.

21.5.3 A portion of the test sample will be provided to a laboratory or testing facility, designated by the individual tested, when quantity permits, only upon written request. To protect the security of the chain of custody, the laboratory performing the initial test under Rule 21.5.2 will arrange for transportation of any remaining sample to the facility so designated by the individual for testing. All cost for the transportation and testing of the sample portion so provided shall be the financial responsibility of the requesting person. Payment for the costs of the transportation and testing of this portion of the sample shall be due from the individual tested within fifteen (15) days of the receipt of written notice of the costs.

21.5.4 Any individual may choose to submit to a blood test at a laboratory acceptable to the Commission instead of submitting to a urine test. An individual so choosing must announce the intention to forego the urine test and to obtain a blood test without delay, and proceed to the laboratory for the testing procedure.

21.5.5 If a field screening test has been performed, and the individual conducting the field test has reason to believe that the test results are inaccurate, the individual tested may be directed to submit to a blood test at a laboratory acceptable to the Commission.

21.6 Testing Procedures -- Breathalyzer Tests

21.6.1 Every licensed person and all employees of licenses within the jurisdiction of the Delaware Thoroughbred Racing Commission shall, except as noted in Rule 21.2, when directed by the Commission or their designee, submit to a breathalyzer test. If the results of a breathalyzer test indicate the presence of alcohol in the blood in an amount equal to or greater than .05%, such person shall be immediately suspended for twenty-four (24) hours. Any individual so suspended shall not be allowed to return to his or her duties within the horse racing enclosure until such a time as a breathalyzer test demonstrates a reading of less than .05% of alcohol. Any individual who records a reading above the prescribed level on more than one (1) occasion in a calendar year, shall be subject to the penalties as provided in Section 21.8.

21.6.2 Any individual who has been requested to submit to a breathalyzer test may instead choose to submit to a blood test at a laboratory acceptable to the Commission provided that the test is taken within four (4) hours of the request. An individual so choosing must announce the intention to forego the breathalyzer test and to obtain a blood test without delay, and proceed immediately to the laboratory for the testing procedure.

21.6.3 If a field screening test has been performed and the individual conducting the field test has reason to believe that the test results are inaccurate, the individual tested may be directed to submit to a blood test at a laboratory acceptable to the Commission.

21.7 Reporting Requirements - Confidentiality

21.7.1 It shall be the obligation of the individual conducting the test to report, in writing, to the Chairman of the Commission or the Chairman's designee. The individual conducting the test shall immediately report any test indicating the presence of alcohol or controlled substances to the Chairman or the Chairman's designee. In addition, on a schedule to be set by the Commission, the individual conducting the test shall make a written report to the Commission of the number of people tested each day, the names of the individuals tested each week, the number of tests which were found "positive" in any field screening test and the number confirmed to be "positive" by laboratory testing.

21.7.2 Any information received and records retained in the process of obtaining a test sample including, but not limited to, medical information, information regarding the lawful use of prescription medication, the results of any tests and any reports filed as a result of attending any approved treatment program shall be treated as confidential, except for their use in a ruling issued pursuant to this rule, or any administrative or judicial hearing with respect to such a ruling. Access to the information received and/or reports generated shall be limited to the Commissioners of the Delaware Thoroughbred Racing Commission, the Commission's designee, the Secretary of the Department of Agriculture and employees of the office of the Attorney General.

21.7.3 Information received and reports generated pursuant to this rule shall be stored in the office of the Chairman of the Commission for a period of three (3) years. After three (3) years, they may be destroyed at the discretion of the Commission. The Commission may maintain information received and reports on individuals violating this rule for the purposes of recording the number of violations and results of treatment programs, should future violations occur.

21.8 Penalties

21.8.1 These penalties apply to any individual who tests "positive" for a controlled substance or tests "positive" on a breathalyzer test for a second time.

21.8.2 The individual shall be suspended from their duties; and

21.8.3 The individual shall submit to a professional evaluation by a substance abuse professional approved by the Commission or its designee. If the substance abuse professional determines that the individual requires rehabilitation, the individual must properly follow the prescribed rehabilitation program, and will be subject to follow-up testing, as described above and in accordance with any direction of the rehabilitation counselor. The suspension shall not be lifted until:

21.8.4 The Commission or its designee makes a finding that the individual's condition is not detrimental to the best interest of racing;

21.8.5 The individual can produce a negative test result performed at a laboratory designated by the Commission at the individual's expense;

21.8.6 The individual successfully completes any prescribed rehabilitation program and/or is certified as ready to return to work by the rehabilitation professional; and

21.8.7 The individual shall be placed on probation for a period of one (1) year from the date of the violation. The individual shall be subject to mandatory follow-up testing at the discretion of the Commission and/or the substance abuse counselor or program during the period of probation. The expense of such further mandatory testing may be at the individual's expense. The laboratory testing facilities, as well as the date, time and frequency of the tests are at the sole discretion of the Commission or their designee.

21.9 For the individual's second violation of these rules (third positive test on a Breathalyzer):

21.9.1 The individual shall be required to enroll in a rehabilitation program approved by the Commission. Inquiries as to whether a particular program meets the approval requirements of this rule shall be referred to the Commission or its designee; and

21.9.2 The individual shall be suspended for a minimum of six (6) months or until the requirements of this sub-section are fulfilled, whichever is greater; and

21.9.3 The individual shall be placed on probation for a period of two (2) years following the suspension. During the period of suspension and probation, the individual shall be subject to mandatory testing at the discretion of the Commission or its designee. Further mandatory tests shall be at the expense of the individual. The laboratory, date, time and frequency of the test are within the sole discretion of the Commission or its designee.

21.9.4 For an individual's third violation (fourth positive test on a Breathalyzer), the individual shall be banned from participating in horse racing within the jurisdiction of the Delaware Thoroughbred Racing Commission. The individual may apply to the Commission to have the ban lifted after not less than five (5) years have elapsed since the last violation. The decision to lift or not to lift the ban is within the sole discretion of the Commission except that no individual is eligible to have a ban lifted without documentary evidence of satisfactory completion of an in-house substance abuse program approved by the Commission.

21.9.5 In addition to any other requirements specified in Rule 21.8, the Delaware Thoroughbred Racing Commission may require an individual to submit additional proof of rehabilitation as may be requested in view of the professional evaluation and other facts and circumstances surrounding the violation.

Added: 2/22/95

Revised: 10/26/95

Revised: 8/27/96

3 Del. Admin. Code § 1001-21.0

1 DE Reg. 508 (11/1/97)
1 DE Reg. 1184 (2/1/98)
3 DE Reg. 754 (12/1/99)
3 DE Reg. 1541 (5/1/00)
4 DE Reg. 179 (7/1/00)
4 DE Reg. 1131 (1/1/01)
4 DE Reg. 1821 (5/1/01)
6 DE Reg. 641 (11/1/02)
6 DE Reg. 1205 (3/1/03)
7 DE Reg. 766 (12/1/03)
7 DE Reg. 1540 (5/1/04)
8 DE Reg. 1289 (3/1/05)
8 DE Reg. 1699 (6/1/05)
10 DE Reg. 546 (09/01/06)
10 DE Reg. 1581 (04/01/07)
11 DE Reg. 1374 (04/01/08)
12 DE Reg. 1514 (06/01/09)
14 DE Reg. 1047 (04/01/11)
15 DE Reg. 520 (10/01/11)
15 DE Reg. 1584 (05/01/12)
16 DE Reg. 1265 (06/01/13)
17 DE Reg. 1061 (5/1/2014) (Final)