Perez v. Hoblock

• Decision Date: 28 February 2002
• Docket Number: No. 01 CIV. 5573(RMB).,01 CIV. 5573(RMB).
• Citation: 248 F.Supp.2d 189
• Parties: Robert PEREZ, Plaintiff, v. Michael J. HOBLOCK, Jr., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

248 F.Supp.2d 189

Robert PEREZ, Plaintiff, v. Michael J. HOBLOCK, Jr., et al., Defendants.

No. 01 CIV. 5573(RMB).

United States District Court, S.D. New York.

February 28, 2002.

Joesph Faraldo, Esq., Alan D. Levine, Esq., for plaintiff.

Michele N. Beier, Esq., Assistant Attorney General, for defendant.

ORDER

BERMAN, District Judge.

I. Introduction

Thoroughbred race-horse owner and licensee of the New York State Racing and Wagering Board ("Racing Board") Robert Perez ("Perez" or "Plaintiff) brings this action to challenge a $3,000 fine imposed on him by the Racing Board following a profanity-laced verbal and physical outburst by Plaintiff at a meeting he requested, and which was held on August 31, 2000.¹ Plaintiff contends that by upholding the fine, imposed pursuant to N.Y. Comp.Codes R. & Regs. ("NYCRR"), Title 9, Section 4022.13 ("Section 4022.13"), defendants Michael J. Hoblock, Jr., the Chairman of the Racing Board ("Hoblock"), Cheryl Buley ("Buley") and Joseph J. Neglia ("Neglia"), members of the Racing Board, and Edward J. Martin, the Executive Director of the Racing Board ("Martin," and collectively with Hoblock, Buley and Neglia, "Defendants"), improperly penalized him for the exercise of his free speech in violation of the First and Fourteenth Amendments to the United States Constitution. In his Amended Complaint, Plaintiff asks the Court to: (i) declare 9 NYCRR § 4022.13 unconstitutional "on its face and as applied to him in that it is overbroad and unconstitutionally vague;" (ii) "permanently enjoin Defendants from imposing any penalty or ... collecting any fine from him based upon his alleged violation of 9 NYCRR § 4022.13"; and, (iii) declare that the imposition of a fine pursuant to "9 NYCRR § 4022.13 is a taking of his property without due process of law."

Presently before the Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(b), filed on November 29, 2001 ("Def.Mem."). Plaintiff filed his opposition on June 3, 2002 ("Pl.Mem."), and Defendants filed a reply on July 11, 2002 ("Def.Reply"). By Order dated January 31, 2003, the Court requested further (simultaneous) briefing, namely Plaintiffs Supplemental Memorandum and Defendants' Supplemental Memorandum. For the reasons set forth below, Defendants' motion is granted.

II. Background

The facts were established at an administrative appeal hearing held by the Racing Board on January 18, 2001 and are not in meaningful dispute. See PI. Mem. at 16 ("Both Mr. Perez and the defendants rely upon the record made at the Racing Board hearing for their account of the events that ultimately led to this lawsuit."); Def. Mem. at 4 (relying on "unrefuted testimony at the formal administrative appeal hearing"); see also Kraft Gen'l Foods, Inc. v. Cattell, 18 F.Supp.2d 280, 284 (S.D.N.Y.1998) ("it is well settled that a certified transcript of judicial or administrative proceedings may be considered on a motion for summary judgment") (quoting Langston v. Johnson, 478 F.2d 915, 918 n. 17 (D.C.Cir.1973)).

On August 31, 2000, the stewards responsible for managing the Racing Board's annual meeting at Saratoga, New York ("Stewards") called a special meeting to address a complaint by Plaintiff that the race secretary of the New York Racing Association ("Racing Association"), Mike Lakow ("Lakow"), was allegedly acting unfairly in selecting which horses ran in which races.² Transcript of Jan. 18, 2001 Hearing ("Tr.") at 6-8, 12. When the Stewards advised Lakow about the meeting Plaintiff had requested, Lakow said that he (also) had a complaint about Plaintiff that he wanted to address, Tr. at 70, namely that the day before, Plaintiff had started "cursing and screaming loudly" at him outside the administrative offices at Saratoga. Tr. 113-14.

The August 31, 2000 meeting, which was held in the Saratoga racetrack office of Dave Hicks ("Hicks"), the Racing Association Steward who had called the meeting, was attended by Plaintiff, Lakow and the three Stewards. Tr. at 8-10. At the meeting, Perez complained that Lakow was trying to favor certain thoroughbred owners by placing only five or six horses, rather than twelve horses, in some races. Tr. at 28-29 (Perez "was saying that Mr. Lakow [was] again, fixing races ... and that it wasn't fair and [Lakow] let[ ] races go for certain people. And [Perez] was trying to compare that there were, say, twelve horses in one race and here were only six in another race."). Shortly after the meeting began, Lakow commented that Plaintiffs complaint was "ridiculous." Tr. at 130. Perez "exploded]" and started "pounding the desk," saying "fuck this and fuck that" and "I'll choke him [Lakow]." Tr. at 32, 130. Lakow sat in place, looking "scared to death." Tr. at 71-72.

Hicks decided that "it was best for me to talk to [Perez] as a friend to get him out of there and talk to him and say, Bobby, you know, relax." Tr. at 53. Perez, however, refused to go outside the meeting room and, instead, "started ... cursing at [Lakow] and threatening, he made remarks and ... then he started raising his voice, cursing and carrying on." Tr. at 54. An employee working in the office next door heard the escalating "yelling" and "commotion" through the wall, and said to her co-workers, "God what the heck is going on back there." Tr. at 102. By then, Hicks decided that the meeting could not continue and the Stewards got up to leave. Tr. at 14. 56-57 ("I couldn't conduct a meeting, no, I couldn't. Not after that kind of display of temper.... It was a washout .... It was too much animosity in the room toward the ... Race Secretary.")

When the Stewards started for the door, Perez "said, you know, fuck this and this isn't right." Tr. at 33. Perez then began "hollering" at Hicks and (repeatedly) called him a "cocksucker." Tr. at 16, 31, 57. Hicks then told Perez that he was going to recommend a fine of $500 because of Perez' abusive behavior. Tr. at 40 ("problem" with Perez was "[t]he abusive language and the way he conducted himself). Perez replied, "make it a thousand," and he cursed again. Tr. at 57. Hicks obliged and raised the fine to $1000. Id. ("He swore again, I [made] it a thousand."). Perez "cursed more," saying "that's a thousand, make it two thousand." Tr. at 35, 56. Perez kept swearing until Hicks raised the fine to $5,000. Tr. at 57. Finally, Perez said, "Fine me ten thousand, I don't really care," Tr. at 14, to which Hicks replied, "Well, I can't go that far, Bobby."³ Tr. at 57; see also Tr. at 60 ("[T]he only way would be the next step, and I've done it in the past over the years, was to suspend them for their behavior in that type of situation. And I didn't want to do that.").

Thereafter, a "security guard came out from the [jockey]'s room." Tr. at 14 The guard had heard the yelling at his post, approximately fifty to seventy-five feet from the Steward's office, through a "big solid wood door." Tr. at 143. One of the Stewards, Carmine Donofrio ("Donofrio"), testified that he was "looking for [the guard] anyway, and all I said was, you know, get him out of here, meaning Mr. Perez. And he left on his own at that point." Tr. at 14

Following the August 31, 2000 meeting, the record indicates that the Stewards conferred and reviewed Plaintiffs behavior. Donofrio, as the Steward for the Racing Board, proposed a $3,000 fine for violation of Section 4022.13. See Report of Hearing Officer Edward J. Martin, dated Apr. 26, 2001 ("Hearing Report") at 1, attached as Exhibit B to Declaration of Alan D. Levine, dated May 30, 2002 ("Levine Declaration"). Hicks testified that the Stewards fined Perez "for his display of temper and use of profane language, which he was using, in the presence of the Stewards as well as the Racing Secretary and other people that were listening in nearby offices where the door was wide open." Tr. at 59.

Pursuant to 9 NYCRR § 4022.14 ("Section 4022.14"), Plaintiff appealed the fine to the Racing Board, which held a hearing on January 18, 2001 ("Administrative Hearing") before Martin, the Racing Board's hearing officer.⁴ Hearing Report at 1. Perez did not testify at the Administrative Hearing but was represented by counsel who actively participated by crossexamining the (six) witnesses who did testify and by arguing that Plaintiffs conduct at the August 31, 2000 meeting was protected by the First and Fourteenth Amendments.⁵ Tr. at 145-56. In a seven page written Hearing Report, dated April 26, 2001, Martin rejected Plaintiffs First Amendment argument, finding that in "this instance" Section 4022.13 "as applied is not overly broad or vague." Hearing Report at 6. Martin also concluded that Plaintiffs behavior "disrupted" the Steward's meeting; that Perez had lost his temper; "shouted and used profanity;" threatened to choke one of the officials at the meeting; "pounded the desk;" and called the Racing Association Steward "a profane name and, was aware that a continuation of his behavior would result in a sanction," but "would not discontinue his disruptive behavior." Hearing Report at 3^1. Martin also found that Plaintiffs actions "were detrimental to the best interests of racing generally, in that he demonstrated disrespect to the stewards and disrupted the stewards' meeting, to the point that made further investigation into his complaint impossible." Hearing Report at 4. Martin recommended that the full Racing Board uphold a fine in the amount of $1,000. Hearing Report at 7.

At a (further) hearing held on May 1, 2001, the full Racing Board approved Martin's recommendation to uphold a fine, but ordered that a $3,000 fine be imposed (as had been recommended by the Racing Board Steward Donofrio), "based upon the aggravated, persistent nature of the misconduct and the need to foster respect for racing officials." In the Matter of Robert Perez, NYRA No. 00^5, Racing Board Findings and Order, dated May 1, 2001, attached as Exhibit C to Levine Declaration ("Racing Board Order").⁶

III....