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BONGIORNO v. LALOMIA

May 3, 1994

Robert Bongiorno
v.
Santo Lalomia, etc., et al; Jeffrey La Poff v. Santo Lalomia, etc., et al; Rosemary Smutz v. Santo Lalomia, etc., et al; Steven Elliott v. Santo Lalomia, etc., et al; Jordon Rubin v. Santo Lalomia, etc., et al



The opinion of the court was delivered by: NICHOLAS H. POLITAN

 Dear Counsel:

 This matter comes before the Court on plaintiffs' applications for stays of the orders of the New Jersey Racing Commission suspending plaintiffs' harness race horse trainers licenses pending final disposition of the instant cases. *fn1" For the reasons explained herein, this Court will abstain from reaching the merits of plaintiffs' applications pursuant to the Younger abstention doctrine. *fn2"

 PROCEDURAL BACKGROUND/STATEMENT OF FACTS

 Plaintiffs are each licensed to drive, train and own harness race horses by the New Jersey Racing Commission ("NJRC"). In September and October of 1993, the Board of Judges of the NJRC at the Meadowlands Racetrack issued rulings against each plaintiff imposing a $ 500 fine and period of suspension for each trainer as follows: Bongiorno -- three years from 10/9/93 through 10/8/96; Smutz -- four years from 10/26/93 through 10/25/97; Elliott -- four years from 10/15/93 through 10/14/97; LaPoff -- six years from 10/15/93 through 10/14/99; and Rubin -- two years days from 10/9/93 through 10/8/95. The disciplinary actions arose out of test results from the New Jersey Equine Testing Laboratory indicating that urine samples from horses under the care and control of each trainer tested positive post race for a drug called fernspiride *fn3" in violation of N.J.A.C. 13:71-23.1 and -23.6. Allegedly, prior to rendering the decisions, defendant Frank Zanzuccki, Executive Director of the NJRC, contacted the Chief Judge and indicated that a two-year suspension should be imposed for one post race fernspiride positive with an additional year suspension for each additional positive test. The decisions of the Board of Judges were appealed to the Office of Administrative Law ("OAL"). *fn4"

 The matters of Elliott, LaPoff, Smutz, and Bongiorno were consolidated for hearing before Administrative Law Judge ("ALJ") M. Kathleen Duncan. The matter proceeded to hearing before ALJ Duncan. ALJ Duncan found, based upon the evidence before her, that each of the urine samples contained the substance fernspiride. ALJ Duncan then proceeded to discuss the appropriate penalty. ALJ Duncan first conducted a review of the penalty ranges for post race positives from 1981 through 1993. Furthermore, the ALJ acknowledged that the Association of Racing Commissioners International had promulgated "Recommended penalties and model rules" [hereinafter "RCI guidelines"]. The RCI guidelines categorize various substances into classifications. Depending upon the classification, the suggested penalties will vary. Fernspiride is not recognized in any of the classifications.

 Although the NJRC neither adopted the guidelines nor promulgated its own rules or guidelines, the ALJ acknowledged that the NJRC had issued at least one directive which refers authoritatively to the RCI guidelines with regard to post race test positives for cocaine. After review of the past penalties, the RCI guidelines, and the records of the trainers, the ALJ ordered a six month suspension for each first reported post race positive of fernspiride with an additional four months for each subsequent positive finding. The penalty range imposed by the ALJ was reached, in part, by considering fernspiride to be a Category 3 drug within the RCI guidelines.

 Rubin's case was heard separately before ALJ J. Roger Persichilli. ALJ Persichilli similarly found that Rubin was in violation of N.J.A.C. 13:71-23.1 and -23.6 as a result of the post race positive of fernspiride in a horse under the care of Rubin. In proceeding to the penalty phase, the ALJ determined that as a result of the bypass of the appeal to the Steward in addition to alleged improper communication between Zanzuccki and the Board of Judges, the opportunity to consider mitigating factors never existed. A review of Rubin's prior record persuaded the ALJ that the record mitigated the penalty not aggravated it. Additionally, the ALJ was guided in part by the NJRC's treatment of post race positives for cocaine in accordance with the RCI guidelines and by New York's 120 day suspension for post race fernspiride positives. The ALJ found it "grossly disproportionate" to impose a two year penalty for a drug that is not a controlled dangerous substance. For these and other reasons stated in his opinion, the ALJ determined that the penalty should not have exceeded four months.

 Following the decisions of the ALJs, the matters were forwarded to the NJRC for final review. The NJRC determined that the ALJs' decisions should be modified insofar as the penalties were upgraded to 18 months for the first post race positive of fernspiride plus 12 months for each subsequent instance wherein a post race positive for fernspiride was found. In making this determination, the NJRC stressed the gravity of the offenses involved and the paramount importance of protecting the integrity of horse racing in general. In this regard the NJRC noted the widespread increase in post race positives of fernspiride in the previous two years. As the stated purpose for the concededly harsh penalties, the NJRC cited to the deterrence of future fernspiride use as well as the use of other unknown substances. The NJRC specifically rejected the ALJs' reliance on the RCI guidelines as the NJRC had never officially adopted them nor was fernspiride even listed in them. Nor was the NJRC persuaded that the New York rule had any applicability to the proceeding. In fact, it was the unknown nature and effect of fernspiride on which the NJRC relied in determining that a severe penalty was warranted.

 Following the final decisions of the NJRC, plaintiffs filed the instant Complaints in this Court alleging violations of 42 U.S.C. § 1983. Upon the filing of the Complaints, plaintiffs moved by way of Order to Show Cause why the order of the NJRC suspending plaintiffs' licenses should not be stayed pending the determination of the instant Civil Rights Actions to annul the determinations. On the return date of the Order to Show Cause, plaintiffs' counsel informed the Court that plaintiffs had not as of that time exercised their right to appeal the decisions of the NJRC to the New Jersey Appellate Division. At that time, this Court revealed its concerns regarding the issue of abstention and suggested to plaintiffs' counsel that the prudent course of action would be to file the notices of appeal with the Appellate Division and to seek a stay of the final decisions of the NJRC from the Appellate Division, and if need be, the New Jersey Supreme Court. If the New Jersey courts denied the stay applications, then this Court would consider plaintiffs' requests for stays. Plaintiffs' counsel agreed with the Court's suggestion.

 Thereafter, the NJRC immediately considered plaintiffs' applications for a stay of their license suspensions as required by the New Jersey Court Rules as a prerequisite for application to the Appellate Division. The NJRC advised plaintiffs that their applications were denied on February 10, 1994. Notices of Appeals and Motions for Stays were filed by plaintiffs with the New Jersey Appellate Division on February 16, 1994. The Appellate Division denied the motions on February 28, 1994. On March 9, 1994, plaintiffs filed Motions for Stays before the Supreme Court of New Jersey. The Supreme Court denied the motions on March 22, 1994. Thereafter, plaintiffs' counsel notified this Court of the Supreme Court's denial of the stay applications and informed the Court that it wished to proceed with its stay applications in the Civil Rights Actions before this Court. The Court directed the parties to submit supplemental briefs and set the matter down for hearing on April 20, 1994.

 DISCUSSION

 Plaintiffs' Complaints were filed pursuant to 42 U.S.C. § 1983. By way of relief, plaintiffs request this Court to annul the determinations suspending plaintiffs' licenses. Furthermore, plaintiffs' request money damages against defendant Zanzuccki. In their Complaints, plaintiffs allege various constitutional infirmities regarding the hearings and procedures which led to the final decision of NJRC. Initially, plaintiffs contend that in each case, prior to the determination of the Board of Judges, defendant Zanzuccki improperly communicated with the judges. Specifically, it is alleged that Zanzuccki directed the judges to find each of the trainers guilty and to suspend each of them for the specified time of two years for the first infraction with one additional year for subsequent infractions. Furthermore, plaintiffs allege that during the course of the administrative proceedings they were denied discovery of a portion of the urine samples such that they could employ their own experts to test for the fernspiride. They also contend that because no evidence was presented by the state to establish the effects of the fernspiride on the horses, the burden of proving the substance not dangerous was impermissibly shifted to plaintiffs. Finally, plaintiffs' contend that their Eighth Amendment guarantee against excessive punishment was violated by reason of the lengthy sentences that will have the effect of destroying their careers.

 In response to the pending applications, the State urges this Court to abstain from deciding the case pursuant to the doctrine first set forth in Younger v. Harris, 401 U.S 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). This Court ...


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