July 6, 2007
DENNIS A. DRAZIN, PETITIONER-APPELLANT,
NEW JERSEY RACING COMMISSION, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey Racing Commission.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 21, 2007
Before Judges S.L. Reisner and Seltzer.
Petitioner, Dennis A. Drazin, appeals from respondent's July 26, 2006, final agency decision that adopted the initial decision of an Administrative Law Judge (ALJ). The ALJ affirmed a decision of the Board of Judges, which had refused to change the order of finish of the Iselin Breeders' Cup Handicap run on August 28, 2005, at Monmouth Park Racetrack. We affirm.
The ALJ accurately described the events leading to the appeal:
The undisputed facts can be summarized. Approaching the 1/8-mile pole, Z [petitioner's horse] was more than a length behind WV. The portion of the track that each horse occupies is known as a path. WV was running in path four and Z was running in path six. Path four is closer to the rail than is path six. At the 1/8 pole WV's jockey looked to his rear, and changed his whip from his right to his left hand. Almost immediately, WV moved to the outside, toward Z in path six. At one point, WV totally occupied path six. As a result of WV's move to the outside, Z was forced out in the same direction and lost one quarter to one half of a length to WV. WV's move to the outside constituted, at the very least, an incident. There was never any contact between horses as a result of this incident. After the incident, Z did make up some ground on WV, but lost the race by almost a length. At the conclusion of the race Z's jockey filed a protest with the outrider, claiming that he had been fouled by WV at the 3/16 pole. As a result of this protest the three stewards immediately conducted an inquiry of the race that began with a review of the films of the race from four cameras. Each race is filmed by these four cameras, which show the entire race from four different angles. The stewards then interviewed the jockeys of Z and WV by telephone. At the conclusion of this process they voted, 3-0, to uphold the order of finish, with WV as the winner and Z as the place horse.
The Stewards Report on this race states:
Objection #5 against #7 at the 3/16 mile pole. Incident did not affect the outcome of the race. No action taken.
After petitioner appealed the refusal to change the order of finish and the matter was referred to the Office of Adminsitrative Law for a hearing, the ALJ received evidence from Stephen Pagano, the Chief Steward for the New Jersey Racing Commission; Eddie King, Z's jockey; and John Forbes, Z's trainer. The ALJ also reviewed the film of the race.
He concluded that WV violated N.J.A.C. 13:70-11.1, which provides: "When clear, a horse may be taken to any part of the course but no horse shall cross or weave in front of other horses in such a way as to impede them or constitute or cause interference or intimidation." The ALJ then went on to consider the evidence to decide if the foul affected the outcome of the race. He accepted the testimony of Pagano, which he characterized as opining "that any foul or incident attributable to WV or his jockey had no affect on the final placement of Z or WV." The ALJ quoted Bonaventura v. N.J. Racing Comm'n, 93 N.J.A.R. 2d (RAC) 33 to support his belief that he was entitled to give "considerable weight to the findings of the stewards. . . . Stewards are selected because of their experience. . . .
Rulings of stewards should only be set aside when they are clearly wrong." After reviewing the evidence, the ALJ made the following determination:
My review of the evidence leads me to the conclusion that Mr. Pagano was not "clearly wrong." Although running far off the pace for the first three-quarters of the race, Z began to make up ground in the last quarter mile. The foul at the 1/8 pole did cause him to lose one-quarter to one-half of a length; however, he never broke stride and seemed to recover from the foul quickly. Most significantly, after recovering, Z never made a strong or commanding move to take the lead. Although closing about one-quarter of a length prior to the finish, my review of the films indicates that Z would not have overtaken WV even if the race had been extended another eighth of a mile.
Having determined that petitioner's horse had committed a foul that did not affect the order of finish, the ALJ rejected petitioner's claim that the foul itself required that his horse be declared the winner. That claim was based upon petitioner's reading of N.J.A.C. 13:70-11.8, which vests the stewards "with power to determine the extent of disqualification in cases of fouls."
On appeal, petitioner presents the following arguments for our consideration:
Point One - The Racing Regulations Impose a Disqualification upon a Horse who Commits a Foul that Interferes with Another Horse, Without the Need to Prove Further that the Foul Affected the Outcome of the Race and without giving the Stewards discretion not to impose a disqualification.
Point Two - Plaintiff Needed Only to Establish The Elements of N.J.A.C. 13:70-11.1 by a Preponderance of Evidence, Not to An Absolute Certainty.
As to petitioner's second point, we note that respondent found a foul had occurred. We assume from the arguments presented that petitioner objects to the further finding that the foul did not affect the outcome of the race, although that finding is not required by N.J.A.C. 13:70-11.1; it is, instead, an ingredient for determining the effect of a foul. In any event, our review of a final agency "decision is a limited one." Clowes v. Terminix Int'l., Inc., 109 N.J. 575, 587 (1988). We determine only "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
Given this standard, respondent's determination that the foul did not affect the order of finish, supported by substantial credible evidence in the record, is binding upon us even if we would have reached a different decision. See In re Taylor, 158 N.J. 644, 657 (1999) (citing Clowes, supra, 109 N.J. at 588; Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28-29 (1981)). Petitioner's argument to the contrary is without sufficient merit to justify discussion in a written opinion.
R. 2:11-3(e)(1)(D), (E).
We also reject as without merit defendant's claim that the agency viewed the findings of the stewards by considering whether the finding that the order of finish was unaffected by the foul was "not clearly wrong." To the contrary, the ALJ was clear that he had made an independent finding. In any event, we have no doubt that, under the circumstances, that phrase indicates that there was evidence to support the conclusion that the foul did not affect the order of finish. That finding is the substantive equivalent of a determination that substantial credible evidence in the record supported the conclusion.
We turn then to consider whether the finding of a foul, not affecting the order of finish, requires modification of the race results. N.J.A.C. 13:70-11.8 provides, "The stewards are vested with power to determine the extent of disqualification in cases of fouls. They may place the offending horse behind such horses as in their judgment it interfered with, or they may place it last." Although we are not obligated to defer to an agency decision on a question of law, Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973), "[a]n administrative agency's interpretation of its regulations is entitled to substantial weight." Simon v. Bd. of Trs., Police & Firemen's Ret. Sys., 233 N.J. Super. 186, 195 (App. Div.), certif. denied, 117 N.J. 652 (1989).
Even without that deference, we are satisfied the agency interpretation was correct. The regulation consists of two sentences. The first sentence vests the stewards with the power to determine the extent of disqualification in cases of fouls. The second describes the range of actions available should the stewards elect to take any action. The use of the word "may" is instructive. That term "is ordinarily permissive or directory and the words 'must' and 'shall' are generally mandatory." Harvey v. Bd. of Chosen Freeholders of Essex County, 30 N.J. 381, 391 (1959). In fact, "[t]he use of the word 'may' indicates that the court has discretion in determining whether any of the enumerated remedies is appropriate to a case." Brenner v. Berkowitz, 134 N.J. 488, 510 (1993).
We discern no basis for departing from this principle when an administrative agency rather than a court is involved. Accordingly, the regulation provides the stewards with the discretion to decide if a change to the order of finish is warranted and, if so, to what extent. In this case, the stewards took no action, as they were entitled to do.
At oral argument, petitioner advanced the theory that the order of finish should be modified if a foul had the potential to affect the order even if it could not be demonstrated that it did, in fact, do so. That issue was not raised before the administrative agency and we decline to consider it for the first time here. In re Petition for a Declaratory Ruling Regarding the City of Plainfield's Park-Madison Site, 372 N.J. Super. 544, 551 (App. Div. 2004) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)), certif. denied, 182 N.J. 630 (2005).
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