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SHOEMAKER v. HANDEL

September 9, 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

 This is an action under the Civil Rights Act, 42 U.S.C. § 1983, by which plaintiffs seek relief from persons acting under color or authority of state law, who allegedly deprive them of their constitutional rights. Plaintiffs are thoroughbred race horse jockeys who complain that the New Jersey Racing Commission's regulations authorizing breathalyzer and urine tests for alcohol and drug use violate several of their constitutionally protected freedoms. They seek a declaratory judgment and permanent injunction against their enforcement. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.

 Plaintiffs moved for a preliminary injunction to enjoin the enforcement of the contested regulations on April 17, 1985, the date they filed this complaint. On April 24, 1985, oral argument was heard on this motion. This court, on May 13, 1985, issued Findings of Fact and Conclusions of law, in which it denied plaintiffs' motion for a preliminary injunction, ordered changes in the medical disclosure forms used, and directed the state to resolve any ambiguities which might exist in the regulations. *fn1" The court also set an expedited schedule for discovery and a full bench hearing. On June 18, 19, 21 and July 1, 1985, this court heard testimony as to whether a permanent injunction should issue. For the reasons provided below, the court upholds the constitutionality of these regulations.

 The following constitute Findings of Fact and are considered true in all respects.

 I. Findings of Fact

 1. Plaintiffs William Shoemaker, Angel Cordero, Jr., William Herbert McCauley, Philip Grove, and Vincent Bracciole are all nationally known thoroughbred race horse jockeys licensed by the State of New Jersey who have won, over their careers, thousands of individual races. *fn2" Their performances have captured the imagination and loyal following of millions of Americans.

 3. Horse racing is a publicly sponsored sport featuring legalized gambling by members of the general public, which, in turn, generates revenue for the state treasury. Its economic impact is broad. When a fire destroyed the Garden State Racetrack in Cherry Hill several years ago, the State Legislature specifically found that it should "be reopened as soon as possible so that economic benefits of an operating track and its attendant service industries will once again flow into the area -- and to the State as a whole." N.J.S.A. 5:5-94(c).

 4. Jockeys must be in total control of their mental faculties and physical capabilities. Racing requires acute alertness, coordination, skill and reflex ability. The risk of serious injury is apparent considering the speed and number of horses running in a confined area, and is greatly increased if a jockey participates while under the influence of alcohol or controlled dangerous substances.

 5. The court can take judicial notice that alcohol and drug abuse is a serious national problem, which could involve upwards of ten percent of the total population. Recent media attention has focused on this problem as it affects professional and amateur athletes. Dr. Robert Pandina, Associate Professor of Psychology at the Center of Alcohol Studies, testified that the degree of risk of drug abuse among athletes is the same as for the general public. TR, Pandina at p. 9. Unannounced drug screening tests administered to minor league baseball players have resulted in between five and thirty percent of those tested recording a "positive" for some drug use. Id.

 6. Raymond Edward Deputy has been the State Steward for the Delaware Harness Racing Commission since 1977. He testified that the Commission has administered breathalyzer tests since 1969 and urine tests since 1982 to harness drivers on a random basis. TR, Deputy at pp. 32-33. Three to five drivers are required to give urine samples each week. The alcohol testing program produces five to six "positives" each year. Over five hundred harness drivers have been tested for drugs. Fully 14.2% of the drivers tested "positive" for drug use. Id. at 34.

 7. Samuel A. Boulmetis has been the State Steward for the Thoroughbred Racing in New Jersey. He has seen "several" people "drunk" or "high" in the Jockey's Room. However, although Boulmetis served as the State Steward at the Meadowlands in 1984, he did not see any jockey at the track impaired prior to a race during that period. He spent an average of fifteen minutes in the Jockey's Room each night. TR, Boulmetis at pp. 20-21. One year ago, two jockeys were found with cocaine at the race track in New Jersey, TR, Bruce Garland, Deputy Director of the New Jersey Racing Commission, at p. 84.

 8. Each jockey which testified, with the exception of McCauley, observed other persons impaired at the race track -- "six" for Bracciole, "three" for Grove, and "three or four" for Anthony Samuel Black.

 9. A review of the National Association of State Racing Commissions Bulletins reveals that in 1984, eleven jockeys were disciplined in eight states and one Canadian province for involvement with drugs. Garland Affidavit at para. 7, citing Letter of Charles K. Bradley, Assistant Deputy Commissioner, N.J. Racing Commission dated January 7, 1985.

 10. No evidence has been introduced linking a jockey's drug-related impairment with an accident during a race. One accident in Pennsylvania has been linked to alcohol use by a jockey. The vast majority of racing accidents are caused by injuries to the horses.

 12. These regulations apply to jockeys, who are also required to be licensed, and regulates race tracks such as Garden State and Monmouth Parks. *fn4"

 13. To combat alcohol and drug use at the racetrack, the Commission promulgated regulations authorizing the use of breathalyzer tests to detect the presence of alcohol in the blood of jockeys, trainers, officials, and grooms, N.J.A.C. 13:70-14A.10, and urinalyses to detect the presence of controlled dangerous substances not authorized by a valid prescription from a physician. N.J.A.C. 13:70-14A.11. (See Regulations attached hereto as Appendix A). These regulations were proposed on June 18, 1984, N.J.R. 1457(a), adopted on January 14, 1985, 17 N.J.R. 470, became effective on February 19, 1985, and operational on April 1, 1985, the first day of thoroughbred racing in New Jersey following their adoption. Garland, who has primary responsibility relating to the rules and regulations of the Commission, testified that the purpose of the regulations was three-fold: (1) to promote the Commission's primary goal of increasing the safety of participants in the race, (2) to promote the integrity and public perception of the cleanliness of the industry, and (3) to rehabilitate those who are found to abuse alcohol and drugs.

 14. Oral and written notice of the adoption of these rules were provided to all persons affected and to the Jockey's Guild. TR, Garland at p. 44. Notices were posted at the race tracks. Garland Affidavit at para. 11. Each jockey who applied for a 1985 license received a package containing a letter from Commission Executive Director Hal Handel, a sample certification form used for the drug test, and copies of the new regulations. Id. The Commission announced at its monthly meeting that the effective date of these rules, April 1, 1985. Id. On April 1, 1985, a meeting was held at Garden State Park among representatives of the jockeys, the Jockey's Guild, and the Commission, during which the Commission explained the new regulations. Id.

 15. The Jockey's Guild unsuccessfully sought to have the Commission defer implementation of the new regulations until a court test of their constitutionality could be made.

 16. The Commission's breathalyzer rule is modeled after the harness breathalyzer rule in effect since 1969. TR, Garland at p. 44. It provides as follows:

 
Officials, jockeys, trainers and grooms shall, when directed by the State Steward, submit to a breathalyzer test and if the results thereof show a reading of more than .05 percent of alcohol in the blood, such a person shall not be permitted to continue his duties. The stewards may fine and suspend any participant who records a blood alcohol reading of .05 percent or more. Any participant who records a reading above the prescribed level on more than one occasion shall be subject to expulsion, or such penalty as the stewards may deem appropriate.

 N.J.A.C. 13:70-14A.10.

 17. Jockeys are required to take the breathalyzer tests daily. TR, Garland at p. 44. Grooms, trainers, and officials are tested with less frequency. Id.; TR, Boulmetis; Grove at p. 108; McCauley at p. 80.

 18. The breathalyzer apparatus is set up in or near the Jockey's Room and is run by an operator. The test is painless. The testee steps up to the machine and breathes. The machine reads the level of blood alcohol and indicates a "positive" reading by means of a red light that is visible to other persons in the room. TR, McCauley at p. 57; Black at p. 107; Grove at p. 106.

 19. The Breathalyzer regulation does not expressly provide procedures to preserve the confidentiality of the results of the tests nor the privacy of its administration. N.J.A.C. 13:70-14A.10. The Commission prefers to administer the tests in private.

 20. The penalties for violations of the breathalyzer regulation include fines, revocation or suspension of license, and expulsion from racing in New Jersey. N.J.A.C. 13:70-31.1. *fn5" Any person disciplined under the regulation may apply to the Commission and receive a hearing. *fn6"

 21. Since April 1, 1985, the thoroughbred racing breath tests have resulted in five positives at Monmouth and Garden State Parks -- four for officials and one for a jockey. TR, Garland at p. 58. The harness breath test has also produced some positives each year since 1969, although in recent years they have been limited to one or two. Garland Affidavit at para. 5; TR, Garland at p. 57.

 22. Jockeys must submit to a post-race urine test "at the direction of the State Steward in a manner prescribed by the New Jersey Racing Commission." N.J.A.C. 13:70-14A.11(b). This test is designed to ensure that the jockeys are not under the influence of any "controlled dangerous substances" or "prescription legend drugs" unless obtained by prescription from a doctor and disclosed to the Commission. Id. at 11(a).

 23. The Commission has implemented the regulation as follows: The names of all participating jockeys at a given "race meeting" are placed in an envelope. The steward or his representative draws the names of three to five jockeys for testing. A representative of the Jockey's Guild is invited to supervise the selection of names. The Commission has stated that it may alter the number of jockeys tested per night. TR, Garland at pp. 42-43.

 24. The jockeys whose names are selected must provide the sample after their last race that day. The jockey is given a plastic container for this purpose. He fills out a certification form (See Certification Form attached hereto as Appendix B) which asks questions concerning the use of prescriptive and nonprescriptive medications. The purpose of the certification form is to provide an exception for use of controlled dangerous substances pursuant to a valid prescription from a licensed physician.

 25. The state represents that the jockeys do not have to complete the portion of the form labeled "For Treatment Of," which asks them to disclose the illnesses that the drugs identified treat. Consistent with this representation, the court ordered the Commission to insert the word "Optional" next to the "For Treatment Of" section so as to make the state's policy clear. Shoemaker, supra, at 1160-61. The state has complied with the court's order.

 26. The certification forms contain two identical numbers. One number is removed and placed on top of the sample and then sealed with the urine specimen. The sample has no other identifying markings. The sample is then sent to the laboratory for overnight testing. The remaining portion of the form is sent to the Executive Director of the Commission and stored in a safe at his office. When the laboratory results are sent to the Executive Director, he determines who had a positive test by matching the numbers. The actual test results, the certification forms, and any other materials generated by this rule are stored in a safe at the Commission and are available only to the Executive Director or his designee and the Commissioners of the New Jersey Racing Commission. Garland Affidavit at para. 9(c).

 27. The tests results are confidential and will not be supplied to any law enforcement agency, including the New Jersey State Police. Garland Affidavit at para. 9(b). The New Jersey Division of Criminal Justice has issued an Advisory Opinion in which it voices no objections to the regulations, is unaware of any statute which would require the Racing Commission to report suspected drug to prosecutorial authorities and that mere use of Controlled Dangerous Substances is not a crime, but a disorderly persons offense. Garland Affidavit at para. 8. The regulations provide only for civil administrative penalties. The Commission would stop testing immediately if the state sought to use the information obtained for a criminal investigation or prosecution. TR, Garland at p. 88.

 28. If a positive result is engendered for an individual without a prescription, the Executive Director must follow the steps outlined in the rule.

 29. For a first violation, the jockey receives a written reprimand and warning that he will be subject to mandatory drug testing for a period of time on a daily basis and that any further violations will result in sanctions as specified in the regulations. The procedures for administering the test will be the same during the mandatory period as with the regular testing program. See N.J.A.C. 13:70-14A.11(d)(2).

 30. For a second violation, the jockey must enroll in a Supervisory Treatment Program approved by the Commission, and may continue to participate in racing unless such participation is deemed, by the Executive Director or his designee "to be detrimental to the best interests of racing." Failure to comply with this directive shall subject the jockey to the full range of penalties authorized by N.J.A.C. 13:70-31-1, including fines and expulsion. N.J.A.C. 13:70-14A.11(d)(3).

 31. For a third or any subsequent violation, the jockey shall be subject to the penalties in N.J.A.C. 13:70-31-1. He may enroll in the Supervisory Treatment Program only in lieu of these penalties with the approval of the Commission. N.J.A.C. 13:70-14A.11(d)(4).

 33. On May 24, 1985, the Commission proposed amendments to the urine testing regulation. (See Amendments attached hereto as Appendix C). A public comment period and formal adoption must follow. TR, Garland at p. 49. The Commission seeks to widen the scope of the rule by testing -- in addition to jockeys -- officials, trainers, and grooms. N.J.A.C. 13:70-14A.11(c), (c) and (d) (proposed). The confidentiality guidelines will be expressly broadened to include any and all information obtained pursuant to the rule. No disclosure of these materials could be made without the approval of the Executive Director of the Commission or his designee. N.J.A.C. 13:70-14A.11(e)(proposed). The Commission would store any information and reports collected for up to a year, after which they would be destroyed. An exception is provided to permit the Commission to maintain records for those "who have violated this rule" without time limit, for the purpose of recording "the number of violations and the results of supervisory treatment and for use should future violations occur." N.J.A.C. 13:70-14A.11(f)(proposed).

 34. The Commission is preserving the confidentiality of all information collected under the urine test rule as if the proposed amendments had already been adopted.

 35. A jockey may be required to provide a urine sample a maximum of three times within a seven day period. Should a jockey's name turn up in excess of three times, the steward disregards the selection and draws another name. Jockeys subject to mandatory testing due to past violations are not included in this group. At Garden State Park, no rider was selected more than three times in a fifteen day period. TR, Boulmetis at p. 12. At Monmouth Park, plaintiffs McCauley and Bracciole were tested three times within a twenty-four hour period. Id.

 36. Many jockeys have been unable to provide urine samples when requested. Jockeys "reduce," or lose weight quickly, by eliminating excess bodily fluids so as to lighten the load the horse must carry during the race. This lessens their ability to provide post-race urine samples. TR, Boulmetis at p. 11.

 37. The Commission has detained jockeys unable to give urine samples for up to an hour. If the steward determines that a jockey is unable to provide a sample, he is excused and retested the next day he participates, or on a day he is not reducing so heavily. If a jockey leaves without giving a sample or being excused, the state steward contacts him and gives him a hearing. Failure to follow procedures as mandated by the urine test rule can subject jockeys to the penalties provided in N.J.A.C. 13:70-31-1. In one case, a steward fined a jockey for failing to provide a urine sample and for leaving the race track without being excused. Tr, Garland at p. 47.

 38. "Positive" test results may measure not only use of drugs at the race track, proximate to race time, but private use of drugs, off regulated premises. For example, marijuana may engender a positive test result even though a jockey did not use it for a week prior to the race and is not presently impaired. The state is using "special procedures" for evaluating positive tests results indicating marijuana use. TR, Garland at p. 55.

 39. The State of Delaware has had a drug testing program for its harness racing drivers since 1982. It uses a spot-check "EMIT" test, which is administered on a random basis. If a test result is positive, the sample is taken for a full laboratory analysis overnight. Over 500 harness drivers have been tested under this program. Approximately 14.2% of the samples have turned out positive for drug use. TR, Deputy at p. 34.

 40. The Delaware Harness Racing Commission found that the average age for positive test results was 26. Delaware began to test more heavily in this age group. As a result, the number of positive tests has increased to 18.2% of the total number of tests. Id.

 41. Since April 1, 1985, the New Jersey thoroughbred racing urine tests have resulted in one positive for cocaine use by a jockey. Two harness drivers in New Jersey have tested positive for cocaine.

 42. The Commission chose to implement the urine tests in this manner in order to maximize their value as a deterrent, to promote the public's perception of the industry's ability to regulate itself, to reduce the adversarial nature of the test by treating all jockeys equally, and because jockeys would be reluctant to report or confront peers whom they suspected of being impaired. TR, Boulmetis at pp. 6-7. The jockeys testified that they had sufficient incentive to police themselves, given, that they too, would be riding alongside the impaired person and could be subject to increased risk of a serious accident.

 43. The jockeys believe that the urine tests, as administered, unfairly single them out as a group and encourage the public to infer that they use controlled dangerous substances at the race track. They testified that all impaired persons who had access to horses -- including owners, trainers, grooms, and the gate crew -- posed a risk of serious injury to the participants and should be tested. The state argues that it selected only jockeys for urine testing because of the heightened chance for accidents during the running of a race. TR, Boulmetis at p. 25.

 II. Conclusions of Law

 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 United States Constitution. Specifically, plaintiffs argue that the regulations:

 (a) subject jockeys to unreasonable searches and seizures in violation of the Fourth Amendment;

 (b) fail to provide a hearing during which plaintiffs can challenge the results of the breathalyzer and urine tests in violation of the due process clause of the Fourteenth Amendment;

 (c) discriminate against jockeys as a group by singling them out for breathalyzer and urine testing in violation of the equal protection clause of the Fourteenth Amendment; and

 (d) 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 in violation ...


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