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Costanzo v. New Jersey Racing Commission

Decided: January 4, 1974.

FRANK J. COSTANZO, JR., APPELLANT,
v.
NEW JERSEY RACING COMMISSION, RESPONDENT



Leonard, Allcorn and Crahay. The opinion of the court was delivered by Allcorn, J.A.D.

Allcorn

[126 NJSuper Page 189] Appellant here appeals from a determination of the New Jersey Racing Commission which affirmed a ruling of the Board of Stewards of Freehold Raceway, revoking an owner's license theretofore issued to appellant.

The Commission predicated the revocation on the following stated grounds:

(A) You are not in membership with the United States Trotting Association;

(B) You falsified your application regarding an ejection at Bay State Raceway [Massachusetts] in violation of New Jersey Harness Racing Rule Chapter 7 Rule 2; and

(C) That based upon your arrest record and association with persons of questionable character the New Jersey Racing Commission in accordance with Chapter 7 Rule 3 of the New Jersey Harness Rules and Regulations has determined that granting you a license would not be in the best interest of racing in this State.

At the very outset we take note that the underlying statute does not either expressly or by implication invest the Commission with the authority to delegate to the "Board of Stewards" or to any one else, the power to revoke a license.*fn1 By the terms of the statute, the Commission is granted "full power * * * to revoke or refuse to issue a license," if deemed to be in the public interest. N.J.S.A. 5:5-33. And the procedure to be followed in the case of license revocation is spelled out in detail under the provisions of N.J.S.A. 5:5-51 to 5:5-61, inclusive -- all of which speak of and to license revocation by the "commission." If there were any doubt remaining, it is dispelled by the provisions of N.J.S.A. 5:5-55, which authorize the Commission, "by order, [to] refer to one * * * of its members the duty of taking testimony in a matter pending before it, and to report thereon to the commission," followed by the express restriction that "no determination shall be made therein except by the commission." Cf. Mercer County, etc. v. Alloway, 119 N.J. Super. 94 (App. Div. 1972),

aff'd 61 N.J. 516 (1972). Accordingly, the action of the "Board of Stewards of the Freehold Raceway," revoking the appellant's license in the first instance, is meaningless and a complete nullity.

Notwithstanding, and as noted earlier, the Commission, as such, does have the authority to revoke an owner's license, on notice and hearing. N.J.S.A. 5:5-51 to 5:51-61, inclusive. And, inasmuch as the revocation by the Commission in this cause was attended by all of the constitutional, statutory and other safeguards inherent in the requirements of due process (including a full hearing, on notice), no harm or adverse effect has resulted to appellant therefrom. Consequently, we will consider the appeal on its merits -- as, in fact, it has been presented and briefed by both sides.

Appellant asserts, first, that the Commission may not lawfully require, as a preliminary qualification to the granting of an owner's license, membership in the United States Trotting Association and, thus, may not revoke on said ground a license theretofore issued. It is plain that the specific legislative delegation to the Commission to issue licenses to owners and others "pursuant to such rules and regulations as the commission may adopt," N.J.S.A. 5:5-33, contains no reference whatever to membership in or to compliance with the rules and regulations of the U.S.T.A. The Commission argues, however, that such authority is plainly granted under the provisions of N.J.S.A. 5:5-30, which authorizes the Commission to "prescribe rules, regulations and conditions under which all horse races shall be conducted," and directs that every permit issued for the running of a harness race shall contain the condition, among others, that "all harness races shall be subject to the reasonable rules and regulations from time to time prescribed by the United States Trotting Association" (except where modified or abrogated by the Commission); and that Rule 26, section 1 of the U.S.T.A. stipulates that "in order to register

a horse the owner thereof must be a member of ...


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