| Matter of Ford v New York State Racing & WageringBd. |
| 2013 NY Slip Op 04065 [107 AD3d 1071] |
| June 6, 2013 |
| Appellate Division, Third Department |
| In the Matter of Mark Ford et al., Respondents, v NewYork State Racing and Wagering Board, Appellant. |
—[*1] Meyer, Suozzi, English & Klein, Garden City (Andrew J. Turro of counsel), forrespondents.
McCarthy, J. Appeal from a judgment of the Supreme Court (Powers, J.), enteredAugust 15, 2011 in Schenectady County, which granted petitioners' application, in aproceeding pursuant to CPLR article 78, to annul a certain regulation promulgated byrespondent.
In 2009, respondent[FN1]adopted regulations that prohibited the use of certain performance enhancing substancesin racehorses, and permitted respondent to drug test all racehorses under the care orcontrol of a trainer licensed by respondent that are anticipated to compete in a race at aNew York racetrack within six months (see 9 NYCRR 4043.12, 4120.17).Petitioners, who are individual licensed owners and trainers of harness racehorses and anonprofit organization of licensed owners, trainers and drivers of harness racehorses,thereafter commenced this CPLR article 78 proceeding challenging the regulationapplicable to harness racing (see 9 NYCRR [*2]4120.17), alleging that respondent exceeded its statutoryauthority and that the regulation is arbitrary and capricious. Supreme Court (Rakower, J.)granted petitioners a preliminary injunction prohibiting respondent from enforcing theregulations and transferred venue. Respondent then answered, seeking dismissal of thepetition. Ultimately, Supreme Court (Powers, J.) determined that respondent hadexceeded its statutory authority by adopting the regulation, annulled it and permanentlyenjoined respondent from enforcing it.[FN2]Although that was sufficient to completely dispose of the matter, "in an effort to guidethe parties" in drafting potential future regulations, the court addressed specificprovisions of the regulation and found them to be arbitrary and capricious. Respondentappeals.
Supreme Court erred in finding that respondent lacked the statutory authority toadopt regulations permitting out-of-competition drug testing of harness racehorses.Racing, Pari-Mutuel Wagering and Breeding Law § 902 (1) provides that the drugtesting of horses "at race meetings shall be conducted by a state college within this statewith an approved equine science program." Supreme Court agreed with petitioners thatthe plain language of this provision limits respondent's authority to test racehorses fordrugs to only those horses that are competing "at race meetings" and does not extend tohorses stabled off-track or to times outside active competition. However, as respondentargues, that section of the statute does not define or otherwise limit respondent'sauthority to implement regulations to conduct drug testing but, rather, mandates that anytesting ordered by respondent on track, at race meetings, be conducted by an approvedentity (see Racing, Pari-Mutuel Wagering and Breeding Law § 902 [1]).Moreover, the court's analysis overlooks the plain language of Racing, Pari-MutuelWagering and Breeding Law former §§ 101 and 301. The first of thosestatutes provides respondent with "general jurisdiction over all horse racing activities andall pari-mutuel betting activities, both on-track and off-track, in the state and overthe corporations, associations, and persons engaged therein" (Racing, Pari-MutuelWagering and Breeding Law former § 101 [1] [emphasis added]).[FN3]The latter statute directs respondent to "adopt rules and regulations . . . tocarry into effect [the statutes'] purposes and provisions and to prevent circumvention orevasion thereof" (Racing, Pari-Mutuel Wagering and Breeding Law § 301 [1]),and, most notably, directs respondent to "prescribe rules and regulations for effectuallypreventing the use of improper devices, the administration of drugs or stimulants or otherimproper acts for the purpose of affecting the speed of harness horses in races in whichthey are about to participate" (Racing, Pari-Mutuel Wagering and Breeding Law §301 [2] [a]).
Contrary to petitioners' contentions, nothing in the Racing, Pari-Mutuel Wageringand Breeding Law specifically limits respondent's ability to administer drug tests tohorses that are [*3]either physically located at a stateracetrack or immediately scheduled to compete in a race. While Racing, Pari-MutuelWagering and Breeding Law § 902 mandates that any on-track, in-competitiondrug testing be conducted by a specific entity "to assure the public's confidence andcontinue the high degree of integrity in racing," it does not prohibit respondent fromdeveloping a separate off-track, out-of-competition drug testing program. On thecontrary, Racing, Pari-Mutuel Wagering and Breeding Law former § 101 (1)expressly authorizes respondent to regulate off-track, out-of-competition activity.Considering the plain language of Racing, Pari-Mutuel Wagering and Breeding Lawformer § 101, as well as respondent's "very broad power to regulate the harnessracing industry" (Matter of Sullivan County Harness Racing Assn. v Glasser, 30NY2d 269, 277 [1972]), and "the State's interest in assuring the integrity of racingcarried on under its auspices" (Equine Practitioners Assn. v New York State Racing& Wagering Bd., 105 AD2d 215, 219 [1984], mod on other grounds 66NY2d 786 [1985]), respondent did not exceed its statutory authority when it adoptedregulations permitting off-track, out-of-competition drug testing.
Having determined that respondent had the authority to adopt the regulation, we nowlook to its substance. This Court should uphold a regulation if it has a rational basis andis not unreasonable, arbitrary or capricious (see Kuppersmith v Dowling, 93NY2d 90, 96 [1999]; Matter ofSullivan Fin. Group, Inc. v Wrynn, 94 AD3d 90, 94 [2012]; Matter of Quagliata v StarbucksCoffee, 82 AD3d 1321, 1322 [2011], lv denied 17 NY3d 703 [2011]).Here, the objective of the out-of-competition drug testing regulation, as stated byrespondent when it was proposed, is "[t]o enable [respondent] to assure the public'sconfidence and preserve the integrity of racing at pari-mutuel betting tracks by regulatingthe use of drugs and medications in race horses so that their natural racing ability is notcompromised or enhanced by such use." Prior to the adoption of the regulation at issue,respondent was permitted to conduct pre- and postrace on-track drug testing, but therewas no provision permitting respondent "to detect and deter the administration ofprohibited performance-enhancing drugs and substances in race horses that are notstabled on the grounds of a racetrack." According to George Maylin, the director ofrespondent's drug testing and research program, the existing drug testing scheme wasinsufficient to detect when an unscrupulous owner or trainer had "doped" a horse inorder to enhance its performance because new doping agents exist that can beadministered to a horse off-track many weeks in advance of a race and then clear out ofthe horse's system so that they are not detectable in a blood sample taken on the day ofthe race. Maylin averred that the only reliable way to detect whether a horse had beengiven these new performance-enhancing agents is to test the horse off-track, well inadvance of a race.
The 180-day testing window was not wholly arbitrary or capricious. As Maylinexplained, the prohibited doping agents can remain "efficacious for many weeks orlonger" and "affect performance long after the drug can be detected." Accordingly,respondent identified a 180-day window prior to competition in which horses may betested (see 9 NYCRR 4120.17 [b]). Although petitioners complain that the timeframe is wholly arbitrary, such time frame allows owners and trainers to identify horsesthat may be excused from sampling—i.e., horses that are not anticipated to racewithin 180 days—and also serves to deter unscrupulous trainers and owners fromasserting that certain horses should be excluded from testing based on false claims thatthey do not intend to race within the next 180 days. While petitioners contend that newerscientific testing methods provide more accurate test results closer in time to a race,respondent is not required to adopt the newest or least restrictive alternatives, especiallytaking into consideration such legitimate concerns as respondent's current technologicalcapabilities and [*4]budgetary constraints.[FN4]Considering that some other jurisdictions have longer windows or no time limitation forout-of-competition testing (see e.g. 71 Ind Administrative Code 8-3-5 [b] [365days]; NJ Administrative Code § 13:70-14A.13 [b] [any horse that has competedor is intended to compete within a calendar year]; 810 Ky Administrative Regs 1:110 [3][1] [any horse eligible to race in the state, with no time frame listed]; see alsoAssoc. of Racing Commrs. Intl. model rule 011-022), a 180-day window is not irrationaland is reasonably related to respondent's stated purpose in adopting the regulations(see Equine Practitioners Assn. v New York State Racing & Wagering Bd., 105AD2d at 220).
Respondent contends that Supreme Court further erred by declaring arbitrary theregulation's requirement that a licensed owner or trainer, upon respondent's request, bringto a New York track any racehorse that is stabled out-of-state within 100 miles of thetrack (see 9 NYCRR 4120.17 [c]).[FN5]According to the regulatory impact statement, before setting a maximum radius to requirean owner or trainer to transport a horse, respondent "considered the cost andimpracticality of shipping a horse for testing great distances (e.g. across the country)" andbased the 100-mile radius "in part on the fact that many horsemen ship approximatelythat distance in order to compete at New York tracks." Thus, contrary to petitioners'contention and the court's finding, the distance is not completely arbitrary or withoutrationale and, considering that many other jurisdictions that perform out-of-competitiontesting have no maximum distance provision (see e.g. 11 Ill Administrative Code§ 603.200 [a]; 71 Ind Administrative Code 8-3-5 [a], [e]; 810 Ky AdministrativeRegs 1:110 [3] [1]; NJ Administrative Code § 13:70-14A.13 [b]; NMAdministrative Code § 15.2.6.9; see also Assoc. of Racing Commrs. Intl.model rule 011-022), a 100-mile radius is rational and reasonable.
Supreme Court erred in finding that the regulation impermissibly infringed on thelegal rights of individuals not licensed by respondent.[FN6]Horse farm owners who lease property on which racehorses are kept have a reducedexpectation of privacy due to the fact that horse racing is a highly regulated industry(see Marshall v Barlow's, Inc., 436 US 307, 313 [1978]; Anobile vPelligrino, 303 F3d 107, 117-121 [2002]). Moreover, the limited intrusion onto suchproperty is not unconstitutional considering that respondent has a substantial interest indetecting performance-enhancing drugs in racehorses, it is necessary for respondent toenter private property for the limited purpose of conducting the test and the regulationprovides adequate [*5]notice to private horse farmowners that such testing may occur if they house horses under the care or control oflicensed racehorse owners and trainers (see Donovan v Dewey, 452 US 594, 600[1981]; Anobile v Pelligrino, 303 F3d at 117-118). Additionally, all applicantsfor licenses—which would include owners and trainers—are deemed toconsent to providing respondent access to any off-track premises where their horses arestabled, and are required to "take any steps necessary to authorize access by[respondent's] representatives to such off-track premises" (9 NYCRR 4120.17 [j]). Thus,trainers and owners stabling horses at private farms have an obligation to obtainpermission from the property owners for possible unannounced visits by respondent'srepresentatives, thereby placing the burden on licensed individuals rather thanindividuals who are not licensed.
The regulation only requires any "trainer, owner and/or their designees and anylicensed racing corporation" to cooperate with respondent regarding testing (9 NYCRR4120.17 [g]). While that provision permits respondent to impose fines and penalties on"any licensee or other person" who fails or refuses to cooperate, the only nonlicensedpersons who are required to cooperate are designees of trainers and owners, orrepresentatives of licensed racing corporations (9 NYCRR 4120.17 [g]). The languagedoes not explicitly apply to farm owners. Even if the provision imposing fines andpenalties on nonlicensed individuals for their failure to cooperate with respondent couldbe read to apply to nonlicensed farm owners, Racing, Pari-Mutuel Wagering andBreeding Law § 310 expressly authorizes respondent to impose fines or penaltieson anyone "participating in any way" in harness racing. It is reasonable to conclude thatleasing property to licensed owners and trainers of racehorses constitutes participation"in any way" for purposes of that statute. Thus, the regulation does not improperlyinfringe on the legal rights of nonlicensed farm owners.
Supreme Court erred in striking down the regulation's penalty against a trainer for apositive drug test. Although the regulation provides for a minimum penalty of a 10-yearsuspension, the trainer can receive a lower penalty by demonstrating "extraordinarymitigating circumstances" (9 NYCRR 4120.17 [i]). A 10-year suspension, while lengthy,is not so disproportionate to the offense as to shock the conscience; respondent purposelyincluded a lengthy suspension to deter serious violations that could compromise theintegrity of horse racing as well as endanger both human and equine competitors. Asrespondent noted when adopting the regulation, the penalty is consistent with that of atleast two other states (see 71 Ind Administrative Code 8-3-5 [i]; NJAdministrative Code § 13:70-14A.13 [e]). Hence, the penalty provision is notarbitrary, capricious or unreasonable.
Supreme Court found that the list of prohibited substances was both vague andinconsistent with other regulations permitting the use of certain substances. Theregulation at issue defines "[p]rohibited substances" as "(1) blood doping agentsincluding" specifically listed substances, "or any substance that abnormally enhances theoxygenation of body tissues; (2) gene doping agents or the nontherapeutic use of genes,genetic elements, and/or cells that have the capacity to enhance athletic performance orproduce analgesia; (3) protein and peptide-based drugs, including toxins and venoms" (9NYCRR 4120.17 [e]). While experts may debate the application of some phrasescontained in the regulation, such as whether a substance "abnormally enhances theoxygenation of body tissues" or whether the use of certain genes or cells is"nontherapeutic" or has "the capacity to enhance athletic performance or produceanalgesia," the list of prohibited substances is not so vague as to require annulment of theregulation.[*6]
Subparagraph (e) (3) of 9 NYCRR 4120.17,however, is inconsistent with a different regulation that permits the use of specifiedsubstances during certain time frames prior to races (see 9 NYCRR 4120.2).Maylin acknowledged that certain drugs with permitted uses under 9 NYCRR 4120.2contain proteins, which would render them prohibited under 9 NYCRR 4120.17 (e) (3).He avers that respondent would read the specific rule as governing over the more generalrule—i.e., that respondent would allow horses to be treated with protein-baseddrugs that are permitted within certain time frames under 9 NYCRR 4120.2 despite theunconditional ban of protein and peptide-based drugs under 9 NYCRR 4120.17 (e)(3)—but this assertion is not supported by any language in either regulation. A ruleof statutory construction provides that a general provision yields to a specific one, butonly when "there is a general and a particular provision in the same statute" (McKinney'sCons Law of NY, Book 1, Statutes § 238; see Matter of Lamar Adv. of Penn, LLC v Pitman, 9 AD3d734, 735 [2004]). Even assuming that this rule can be applied to regulations, asopposed to statutes, the general and specific provisions at issue here exist in differentregulations, rendering the rule inapplicable. Accordingly, we find that the portion of theregulation prohibiting all "protein and peptide-based drugs" was properly annulledbecause it is inconsistent with, and cannot be reconciled with, the permitted-useregulation.
Rose, J.P., Spain and Egan Jr., JJ., concur. Ordered that the judgment is modified, onthe law, without costs, by reversing so much thereof as annulled and enjoined respondentfrom enforcing all portions of 9 NYCRR 4120.17 except (e) (3) and, as so modified,affirmed.
Footnote 1: Effective February 1,2013, the Racing, Pari-Mutuel Wagering and Breeding Law was amended (see L2012, ch 60, § 1 [part A]), and respondent was merged into a newly-created entitycalled the New York State Gaming Commission (see Racing, Pari-MutuelWagering and Breeding Law § 102).
Footnote 2: Inasmuch as petitionerschallenged only the regulation applicable to harness racehorses, the regulation applicableto thoroughbred racehorses (see 9 NYCRR 4043.12) remains valid.
Footnote 3: While petitioners arguethat the phrase "both on-track and off-track" is meant to modify only the immediatelyprior words "betting activities," we read that explanatory phrase more broadly, asapplying to "all horse racing activities and all pari-mutuel betting activities" (Racing,Pari-Mutuel Wagering and Breeding Law former § 101 [1]). This broader readingmore fully allows respondent to fulfill its purpose and obligations.
Footnote 4: Petitioners point to thetests performed by respondent in another case (Matter of Laterza v New York State Racing & Wagering Bd.,68 AD3d 1509, 1510-1511 [2009]), as proof that such newer testing methods couldbe implemented. While scientifically possible, this is not required. Indeed, the experts inthat case noted that respondent did not own the equipment necessary to conduct aconfirmatory test, and such equipment was "very expensive and rare" (id. at1511).
Footnote 5: For horses stabled inNew York, respondent's employees will apparently travel to the stable to take a specimenfor testing.
Footnote 6: Inasmuch as respondentdid not raise petitioners' lack of standing with respect to this issue in its answer, thatdefense has been waived (see CPLR 3211 [a] [3]; [e]).