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New Jersey Racing Com'n v. Silverman

July 21, 1997


On appeal from New Jersey Racing Commission.

Approved for Publication July 21, 1997.

Before Judges Skillman, A.a. Rodriguez and Cuff. The opinion of the court was delivered by Skillman, J.A.D.

The opinion of the court was delivered by: Skillman

The opinion of the court was delivered by


Appellant Richard Silverman is a driver and trainer of harness racing horses licensed by the respondent New Jersey Racing Commission (Commission). On October 23, 1993, appellant was the driver of "Tidewater Trick" in Garden State Park's eleventh race. The horse was the third favorite in a field of eight, with betting odds at race time of seven to two. However, the horse finished in fifth place.

On December 9, 1993, the Board of Judges at Garden State Racetrack determined that appellant had violated N.J.A.C. 13:71-20.10(b) *fn1 by using poor judgment and carelessness in the race and imposed a forty-five day suspension of his license. Appellant appealed to the State Steward, who affirmed the Board's decision. Appellant appealed the Steward's ruling to the Commission, which forwarded the matter to the Office of Administrative Law (OAL) as a contested case.

A hearing was conducted before Administrative Law Judge (ALJ) Persichilli on January 23, 1995. The Commission's only witness was Phyllis DeVitis, one of the three members of the Board of Judges which found that appellant had violated N.J.A.C. 13:71-20.10(b). DeVitis described four rule violations that appellant committed during the course of the race. First, appellant allowed the No. 6 horse to get in front of him and go to the rail, without attempting to close the gap. Second, appellant allowed a gap of two to two and one half lengths behind the horse in front of him to exist for about a half a mile, without attempting to close the gap. Third, appellant seesawed the bit in the horse's mouth, effectively holding the horse back. Fourth, appellant did not use sufficient effort in driving his horse down the stretch. DeVitis also expressed the opinion that a forty-five day suspension was "appropriate for this particular drive." However, on cross-examination DeVitis admitted that the Board discussed imposing a fifteen day suspension "for some length of time" but subsequently agreed to impose a forty-five day suspension after the Commission's Executive Director informed one of the Judges by telephone that he felt a longer suspension should be imposed.

Appellant testified in his defense that he has never had a major suspension, i.e., a suspension of ten days or more, in more than fourteen years of driving horses. Appellant had driven Tidewater Trick two weeks before the race at Garden State Park and found the horse to be calm and manageable. In that race, the horse came from ten lengths behind down the stretch to place second. On October 23, 1993, appellant's strategy was again to race the horse from behind. However, appellant soon discovered that Tidewater Trick was not running the same as he had two weeks earlier. At the first turn, appellant attempted to keep the horse relaxed and take him to the rail. However, the No. 6 horse moved in front of appellant and he settled into fourth position. Because appellant knew he "was in a very bad position," he decided to stay where he was and attempt to improve his position down the stretch. Appellant seesawed the bit in the horse's mouth to settle him down even though such action also would slow down the horse. Just past the three-quarter pole, appellant looked for an opportunity to go inside or outside and found none. At the top of the stretch, appellant was "leaning flat back," because he was trying to control the horse. He tapped the horse with his whip a few times at the wire to try to finish fourth but refused to beat the horse to finish better than fifth when he could not win. In hindsight, appellant would have "pulled the horse," perhaps affording a better chance to win.

Appellant also presented the testimony of Donato Latessa, the presiding Judge on the Board of Judges assigned to Garden State Park on October 23, 1993. Although Latessa did not believe that appellant's horse could have finished higher than fifth, he agreed that appellant made no effort to "close the hole" into which the No. 6 horse dropped and that appellant could have closed the hole further in the stretch. Consequently, Latessa agreed that appellant had used poor judgment in the race, thus violating N.J.A.C. 13:70-20.10(b). However, Latessa also testified that the Judges had agreed to impose a fifteen day suspension for this violation but that the Executive Director, without reviewing the videotape of the race or listening to the audiotape of the hearing before the Board, had placed a telephone call to one of the Judges and instructed them to impose a forty-five day suspension. As a result, the other two Judges changed the decision they had previously agreed upon and imposed a forty-five day suspension. Latessa testified that there had been two other occasions when the Executive Director had recommended imposition of a particular suspension for a violation of the rules in a race at which he was the presiding Judge, and that when the Judges failed to follow his recommendation on one of those occasions, the Executive Director had threatened to fire him. Latessa further testified that the Executive Director's intrusion into the Judges' decision-making process constituted a departure from long-standing agency practice and was improper. Consequently, he refused to join in the decision imposing the forty-five day suspension. Shortly thereafter, Latessa was terminated from his position as a Judge. *fn2 Latessa also testified that a fifteen day suspension was the usual sanction for a violation of N.J.A.C. 13:71-20.10.

On March 7, 1995, the ALJ issued an initial decision finding that appellant violated N.J.A.C. 13:71-20.10(b), and concluding that a fifteen-day suspension of his license was an appropriate penalty. The ALJ gave a detailed explanation of his reasons for imposing a fifteen day suspension rather than the forty-five day suspension imposed by the Board of Judges:

I am strongly influenced by the fact that three Judges, Latessa, DeVitis and Bertola, independently determined that a fifteen-day penalty was proper. In the absence of compelling evidence in this record to support a greater or lesser penalty, I afford their experience and judgment high probative value. The record does not support a greater penalty, especially not the forty-five day suspension sought by the Commission (which was imposed following a phone call from the executive director). There is no evidence of how the executive director determined that the forty-five day-penalty was either reasonable or related to the facts, particularly in the absence of hearing tapes. On the contrary, there is reason to find that forty-five days is arbitrary and unreasonable. Judge DeVitis admitted that the Judges did not consider Silverman's prior driving record. Silverman testified that his racing record contains no major violations in his twelve years of driving throughout various racing jurisdictions in the United States. ... Consideration of this weighty factor in the context of the violation here, a violation more of appearance than intentional wrongdoing, supports a suspension of not more than fifteen days and, arguably, less.

Viewed in its most favorable light, Judge DeVitis's testimony offers weak support for forty-five days as a reasonable and appropriate penalty particular to the racing misconduct in this case. She originally agreed to impose a fifteen-day suspension. Her penalty Conclusion changed after she learned of her employer's wishes, because, as she said, "When someone you are working for makes a recommendation, you take it under advisement most seriously" (or words of similar import). ... Judge DeVitis attempted to provide support for a number given to her, one that effectively increased the penalty she had previously found reasonable by 300 percent. Latessa's prior experience made it clear to him that his job was on the line if he failed to follow his employer's wishes. His testimony was uncontroverted and believable. Thus, the record shows that to one Judge, Latessa, feared for his position if he did not follow the executive director's wishes and that a second Judge, DeVitis, took the executive director's recommendation seriously enough to change her mind on what she initially thought was appropriate to the case. However, I cannot find that forty-five days is appropriate, because the record before me shows that the decision to impose forty-five days was founded upon intimidation and/or fear, or facts unknown.

The Commission considered this matter in an executive session on April 26, 1995 and voted to reimpose the initial forty-five day suspension. The Commission notified appellant of this decision by a letter dated April 27, 1995, which stated that "[a] copy of the Commission's written decision, which will memorialize its final Disposition of this matter, will be forwarded to you together with a ruling implementing said decision." However, the Commission did not issue a written decision until nine months later, on January 22, 1996. In that ...

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