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SHOEMAKER v. HANDEL

May 13, 1985

WILLIAM SHOEMAKER, ANGEL CORDERO, JR., WILLIAM HERBERT McCAULEY, PHILIP GROVE and VINCENT BRACCIOLE, Plaintiffs,
v.
HAL HANDEL, Executive Director of the New Jersey Racing Commission, SAMUEL A. BOULMETIS, Steward Representing NJ Racing Commission, JOSEPH F. PIARULLI, Associate Steward, CARL H. HANFORD, Associate Steward and RICHARD W. LAWRENSON, Associate Steward, Defendants



The opinion of the court was delivered by: BROTMAN

 BROTMAN, District Judge

 Plaintiffs, William Shoemaker, Angel Cordero, Jr., William Herbert McCauley, Philip Grove, and Vincent Bracciole bring this action under 42 U.S.C. § 1983, seeking a preliminary injunction against defendants Hal Handel, Samuel A. Boulmetis, Joseph A. Piarulli, Carl H. Hanford, and Richard W. Lawrenson, to restrain the enforcement of New Jersey Racing Commission Regulations N.J.A.C. 13:70-14A.10 and 13:70-14A.11, which provide for breathalyzer and urine tests for licensed jockeys.

 This matter having come before the court on April 24, 1985, and the court, having considered the submissions and arguments of the parties, makes the following findings of fact and conclusions of law.

 I. FINDINGS OF FACT

 1. Plaintiffs William Shoemaker, Angel Cordero, Jr., William Herbert McCauley, Philip Grove, and Vincent Bracciole are licensed jockeys of the State of New Jersey who have ridden and intend to continue to ride in thoroughbred horse races in the State of New Jersey.

 2. Defendant Hal Handel is the Executive Director of the New Jersey Racing Commission ("Racing Commission"), Trenton, New Jersey.

 3. Defendant Samuel A. Boulmetis is the Steward representing the Racing Commission at the race meeting held at the Garden State Park, Cherry Hill, New Jersey.

 4. Defendants Joseph A. Piarulli, Carl H. Hanford, and Richard W. Lawrenson are Associate Stewards representing the Racing Commission at the race meeting held at the Garden State Park, Cherry Hill, New Jersey.

 5. The New Jersey State Legislature has established a New Jersey Racing Commission, vested with the broad "powers necessary or proper to enable it to carry out fully and effectually all the provisions and purposes of this act," including jurisdiction over "any and all persons, partnerships, associations or corporations which shall hereafter hold or conduct any meeting within the State of New Jersey whereat horse racing shall be permitted for any stake, purse, or reward." N.J.S.A. 5:5-22.

 6. The Racing Commission promulgated N.J.A.C. 13:70-14A.10 and 14A.11 (attached hereto as Appendix A), pursuant to its authority granted by N.J.S.A. 5:5-30. These regulations permit the use of breathalyzer and urine tests to detect the presence of alcohol or controlled dangerous substances as defined in N.J.S.A. 24:21-1 et seq. They were proposed on June 18, 1984, 16 N.J.R. 1457(a), adopted on January 14, 1985, 17 N.J.R. 470, effective on February 19, 1985, and operational on April 1, 1985.

 7. N.J.A.C. 13:70-14A.10 provides that a State Steward may direct officials, jockeys, trainers and grooms to submit to a breathalyzer test. If the result of that test shows a reading of.05 percent of alcohol in the blood, "such person shall not be permitted to continue his duties." The Steward "may fine or suspend any participant who records a blood alcohol reading of.05 percent or more." Second or repeat offenders "shall be subject to expulsion, or such penalty as the stewards may deem appropriate."

 8. N.J.A.C. 13:70-14A.11 provides, inter alia, that "every jockey for any race at any licensed racetrack may be subjected to a post-race urine test, or other non-invasive fluid test at the direction of the State Steward in a manner prescribed by the New Jersey Racing Commission. Any jockey who fails to submit to a urine test when requested to do so by the State Steward shall be liable to the penalties provided in N.J.A.C. 13:70-31." N.J.A.C. 13:70-14A.11(b). The regulation further provides that a "positive" drug test result be reported in writing to the Executive Director of the Racing Commission or his designee. N.J.A.C. 13:70-14A.11(d).

 9. N.J.A.C. 13:70-14A.11 also provides that "the results of any urine test shall be treated as confidential, except for their use with respect to a ruling issued pursuant to this rule, or any administrative or judicial hearing with regard to such a ruling. Access to the reports of any 'positive' results shall be limited to the Commissioners of the New Jersey Racing Commission, the Executive Director and/or his designee and the subject jockey, except in the instance of a contested matter." N.J.A.C. 13:70-14A.11(e).

 10. N.J.A.C. 13:70-14A.11 also provides that "no jockey shall use any Controlled Dangerous Substance as defined in the 'New Jersey Controlled Dangerous Substance Act, ' N.J.S.A. 24:21-1, et seq. or any prescription legend drug, unless such substance was obtained directly, or pursuant to a valid prescription or order from a licensed physician, while acting in the course of his professional practice. It shall be the responsibility of the jockey to give prior notice to the State Steward that he is using a Controlled Dangerous Substance or prescription legend drug pursuant to a valid prescription or order from a licensed practitioner." N.J.A.C. 13:70-14A.11(a).

 11. On April 1, 1985, a meeting was held in the jockey's room at the Garden State Park, Cherry Hill, New Jersey, among representatives of the Racing Commission, jockeys, and representatives of the National Jockeys Guild, the purpose of which was to explain the new regulations.

 12. The Jockeys Guild requested that the Racing Commission defer implementation of these regulations until a court challenge to their validity could be mustered. The Racing Commission declined to defer enforcement.

 13. Defendants have forced or threatened to force plaintiffs to undergo breathalyzer and/or urine testing pursuant to N.J.A.C. 13:70-14A.10 and 14A.11.

 14. Defendants have forced or threatened to force plaintiffs to fill out certain forms requiring the disclosure of personal medical data and other information pursuant to N.J.A.C. 13:70-14A.11(a).

 II. CONCLUSIONS OF LAW

 1. The following Conclusions of Law, insofar as they may be considered Findings of Fact, are so found by this court to be true in all respects.

 2. Jurisdiction is conferred upon this court by 28 U.S.C. §§ 1331 and 1343, this being a suit under 42 U.S.C. § 1983, which provides, in pertinent part, that:

 
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

 3. In order to support the entry of a preliminary injunction under Federal Rule of Civil Procedure 65(b), the applicant must make a showing as to the following four factors:

 
(a) the significance of the threat of irreparable harm to plaintiffs if the injunction is not granted;
 
(b) the state of the balance between this harm and the injury that granting the injunction would inflict upon the defendant;
 
(c) the probability that plaintiff will prevail on the merits; and
 
(d) the public interest will be served.

 The court must balance these factors. In re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137, 1143 (3rd Cir. 1982); Continental Group, Inc. v. Amoco Insurance Company, 614 F.2d 351 (3rd Cir. 1980); Rennie v. Klein, 462 F. Supp. 1131, 1142 (D.N.J. 1978).

 4. A petition for a preliminary injunction is addressed to the sound discretion of the trial court, Evening News Publishing Company v. Allied Newspaper Carriers of New Jersey, 149 F. Supp. 460, 462 (D.N.J. 1957), and such relief should be granted only when it is necessary to preserve the status quo during the pendency of an action so as to avoid irreparable harm.

 5. Plaintiffs allege that N.J.A.C. 13:70-14A.10 and 14A.11 violate their rights guaranteed by the Fourth, Fifth, and Ninth Amendments and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Specifically, plaintiffs argue that defendants:

 
(a) subject jockeys to unreasonable searches and seizures;
 
(b) require the disclosure of private medical information, potentially relevant to violations of the criminal law of the State of New Jersey, without adequate safeguards for maintaining its confidentiality;
 
(c) fail to provide a hearing during which plaintiffs can challenge the results of the breathalyzer and urine tests; and
 
(d) discriminate against jockeys as a group by singling them out for breathalyzer and urine testing.

 The court will address the strength of the plaintiffs' claims seriatim.

 6. The Search and Seizure Claim. The Fourth Amendment provides that "the right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The essential purpose of the proscriptions in the Fourth Amendment is to "impose a standard of 'reasonableness' upon the exercise of discretion by government officials," including law enforcement agents and state regulatory personnel, in order to "safeguard the privacy and security of individuals against arbitrary intrusions. . . ." Delaware v. Prouse, 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979); Marshall v. Barlow's Inc., 436 U.S. 307, 312, 56 L. Ed. 2d 305, 98 S. Ct. 1816 (1978); Camara v. Municipal Court, 387 U.S. 523, 528, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). Thus, the Fourth Amendment protects individuals from "unreasonable government intrusions into their legitimate expectations of privacy." United States v. Chadwick, 433 U.S. 1, 7, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977).

 Except in certain carefully limited classes of cases, a search of private property or person without consent is "unreasonable" unless it has been authorized by a valid search warrant. See Marshall, supra. An exception to the search warrant requirement has been recognized for "pervasively regulated businesses" and for "closely related" industries "long subject to close supervision and regulation." Id.; United States v. Biswell, 406 U.S. 311, 316, 32 L. Ed. 2d 87, 92 S. Ct. 1593 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72, 77, 25 L. Ed. 2d 60, 90 S. Ct. 774 (1970). These cases are indeed exceptions,

 
but they represent responses to relatively unique circumstances. Certain industries have such a history of government oversight that no reasonable expectation of privacy * * * could exist for a proprietor over the stock of such an enterprise. Liquor (Colonnade) and firearms (Biswell) are industries of this type; when an entrepreneur embarks upon such a ...

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