On appeal from Final Decision of the New Jersey Racing Commission.
King, Simpson and Scalera. The opinion of the Court was delivered by Simpson, J.A.D.
James King, Jr., a licensed harness driver, appeals from the January 8, 1985 final administrative action of the New Jersey Racing Commission (NJRC) suspending King from racing for six months. The NJRC found that King drove a horse, Nancy's Best Bet, in the 8th race at Freehold on March 31, 1984 "with design to prevent his winning" in violation of N.J.A.C. 13.71-20.10(a). On April 5, 1984, a board of three judges, including presiding Judge Peter Virag, reached the same conclusion and imposed the same suspension pursuant to N.J.A.C. 13.71-8.2 and 13.71-8.13, and on April 19, 1984 state steward Richard J. O'Donnell affirmed the finding and six months suspension. N.J.A.C. 13.71-8.3 and 13.71-8.13. King appealed to the NJRC pursuant to N.J.A.C. 13:71-3.1 and the matter was referred to the Office of Administrative Law as a contested case pursuant to N.J.S.A. 52:14B-1 et seq. and N.J.S.A. 52:14F-1 et seq. In his Initial Decision of September 6, 1984 the Administrative Law Judge (ALJ) concluded that no violation had occurred and King should not be suspended unless the NJRC modified or rejected this recommended decision in a final decision within the time limits provided in N.J.S.A. 52:14B-10.
Most of the operative facts are not disputed. Nancy's Best Bet was a rough-gaited horse that was difficult to drive. Nevertheless, King drove an excellent race, at least to approximately the final 95 feet of the home stretch. At that point a horse in front of King's broke stride and the driver pulled to the outside. King then steered his horse to the left and finished second to the winning horse by a head. As he steered Nancy's Best Bet to the inside, King "grabbed" his horse and
the judges, state steward, and NJRC concluded that he thereby slowed his horse to avoid winning the race. Appellant and several other drivers testified that King properly grabbed Nancy's Best Bet to prevent her from breaking stride and being disqualified. The videotape shows that King took hold of his horse at a crucial point in the race, but the witnesses and experts drew different conclusions as to whether he steadied her to salvage second place or slowed her down to avoid finishing first. On this appeal King contends that:
I. THE NJPC HAS NEVER OFFICIALLY ACTED UPON THE KING APPEAL AND UNDER THE SPECIFIC TERMS OF N.J.S.A. 52:14B-10(c), THE DECISION OF OAL JUDGE THOMAS CLANCY DISMISSING THE CHARGES IS THE FINAL DECISION.
II. THE NJRC IMPROPERLY REJECTED THE CREDIBILITY FINDINGS OF JUDGE CLANCY.
III. TRADITIONAL NOTIONS OF DUE PROCESS AND FAIRNESS SHOULD PREVENT THE NJRC FROM BASING A FINDING OF A VIOLATION OF ITS RULES PRIMARILY UPON THE SUBJECTIVE OPINIONS OF ITS OWN EMPLOYEES.
IV. CONSIDERING THE ENTIRE RECORD, THERE IS INSUFFICIENT EVIDENCE TO CONCLUDE THAT MR. KING INTENTIONALLY DETERMINED NOT TO WIN THE RACE.
V. IMPOSITION OF A FULL SIX-MONTH SUSPENSION WITHOUT ANY EXPLANATION, VIOLATES BASIC PRECEPTS OF FAIRNESS AND IS A SHOCKING EXAMPLE OF ADMINISTRATIVE ARBITRARINESS AND ABUSE.
Our careful review of the entire record and the arguments in support of Points II through V satisfy us that the decision of the NJRC is supported by sufficient credible evidence on the record on the whole and the issues of law raised are clearly without merit. R. 2:11-3(e)(1)(D) and (E). See also, as to Points II, III and IV, DeVitis v. New Jersey Racing Com'n., 202 N.J. Super. 484 (App.Div.1985). As to Point V, the reliance upon Pitts v. N.J. Racing Com'n., 185 N.J. Super. 190 (App.Div.1982), certif. den. 97 N.J. 693 (1984), is misplaced since that case involved only a one sentence decision entirely lacking in findings and conclusions. ...