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New Jersey Racing Com'n v. Elliot

May 3, 1996

NEW JERSEY RACING COMMISSION, PEITIONER-RESPONDENT,
v.
STEVE ELLIOT, JEFFREY LAPOFF, ROSEMARY SMUTZ AND ROBERT BONGIORNO, RESPONDENTS-APPELLANTS.



On appeal from the New Jersey Racing Commission.

Approved for Publication May 3, 1996.

Before Judges Dreier, Kestin, J.A.D., and Cuff. The opinion of the court was delivered by Kestin, J.A.D.

The opinion of the court was delivered by: Kestin

The opinion of the court was delivered by KESTIN, J.A.D.

Four trainers licensed by the New Jersey Racing Commission appeal from a decision of the Commission imposing fines and suspending their licenses and privileges for extended periods ranging from thirty months to sixty-six months. We affirm.

The orders were based upon findings that horses under the care of each trainer had tested positive for the drug "fenspiride", thereby establishing violations of N.J.A.C. 13:71-23.6, the "trainer responsibility" rule, and N.J.A.C. 13:71-23.1, the "no medication" rule. The sanctions in each case included an eighteen-month suspension for the first instance in which a horse under a particular trainer's supervision was found with fenspiride in its system and twelve months for each additional instance.

After the respective races, customary testing was conducted of urine samples from the winning horses and others selected at random. On July 23, 1993, the first occasion on which a test for fenspiride was conducted, as well as on several subsequent occasions in the ten days following, the substance was detected. After repeat tests to verify accuracy, the trainers in this matter were charged.

The trainers requested and received a hearing before a panel of three racing Judges, N.J.S.A. 5:5-37a; N.J.A.C. 13:71-1.20; -2.3; -3.3, which determined that regulatory violations had occurred. The panel imposed fines and suspensions ranging from three years to six years. The record establishes that the Executive Director of the Commission communicated by telephone with the chief racing Judge and specified the periods of suspension that, in his view, needed to be imposed.

The matter was ultimately tried in a contested case hearing pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-9 and -10. The administrative law Judge issued an initial decision in which she found that fenspiride had been administered to the animals indicated on the occasions specified. In order to determine what penalties were appropriate, the Judge reviewed the records of each of the trainers, surveyed available background on penalties previously imposed by the Commission for the use of various types of substances, and focused upon the fact that

little is known about fenspiride.... For many years fenspiride was thought to be a bronchodilator. Only the most recent literature, has described it as an anti-broncho constrictor with anti-inflammatory properties. All of this research involves the drug's effect on human beings, not horses. Furthermore, the latest study is not necessarily the best simply because it was done most recently.

The Judge found also that the evidence before her provided no adequate basis to determine

the nature and effect of fenspiride, particularly in horses. However, it is probable that whoever administered the drug to these horses was under the impression that it is a bronchodilator and therefore a performance enhancer since that would reflect the long term thinking about the drug rather than the most recent Conclusions. Respondents have offered evidence to indicate that with a couple of exceptions, the horses performed primarily as expected rather than in any enhanced manner. The fact that the drug did not have the probable desired effect, however, should not in any way mitigate the penalty imposed.

She concluded

that fenspiride should be treated as a Class 3 drug for purposes of imposing a penalty and the fact that it is not readily available for therapeutic purposes implies a surreptitious purpose in its administration and therefore, warrants a suspension toward the upper end of the range. With respect to the prior suspension records of each of the respondents, any prior suspensions for post race positives were ...


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