On appeal from a Final Agency Decision of the New Jersey Racing Commission.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...