Trainer v. N.J. Racing Comm'n

• Docket Number: A-1705-21
• Decision Date: 01 September 2023
• Parties: KELVIN HARRISON, TRAINER, Petitioner-Appellant, v. NEW JERSEY RACING COMMISSION, Respondent-Respondent. BRETT PELLING, TRAINER, Petitioner-Appellant, v. NEW JERSEY RACING COMMISSION, Respondent-Respondent. JEFFREY CULLIPHER, TRAINER, Petitioner-Appellant, v. NEW JERSEY RACING COMMISSION, Respondent-Respondent. KEVIN C. MCDERMOTT, TRAINER, Petitioner-Appellant, v. NEW JERSEY RACING COMMISSION, Respondent-Respondent. MARCUS MELANDER, TRAINER, Petitioner-Appellant, v. NEW JERSEY RACING COMMISSION, Respondent-Respondent. KEITH D. TORRO, TRAINER, Petitioner-Appellant, v. NEW JERSEY RACING COMMISSION, Respondent-Respondent. RICHARD D. JOHNSON, TRAINER, Petitioner-Appellant, v. NEW JERSEY RACING COMMISSION, Respondent-Respondent. RICHARD J. NORMAN, TRAINER, Petitioner-Appellant, v. NEW JERSEY RACING COMMISSION, Respondent-Respondent.
• Court: New Jersey Superior Court — Appellate Division

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KELVIN HARRISON, TRAINER, Petitioner-Appellant, v. NEW JERSEY RACING COMMISSION, Respondent-Respondent.

BRETT PELLING, TRAINER, Petitioner-Appellant, v. NEW JERSEY RACING COMMISSION, Respondent-Respondent.

JEFFREY CULLIPHER, TRAINER, Petitioner-Appellant, v. NEW JERSEY RACING COMMISSION, Respondent-Respondent.

KEVIN C. MCDERMOTT, TRAINER, Petitioner-Appellant, v. NEW JERSEY RACING COMMISSION, Respondent-Respondent.

MARCUS MELANDER, TRAINER, Petitioner-Appellant, v. NEW JERSEY RACING COMMISSION, Respondent-Respondent.

KEITH D. TORRO, TRAINER, Petitioner-Appellant, v. NEW JERSEY RACING COMMISSION, Respondent-Respondent.

RICHARD D. JOHNSON, TRAINER, Petitioner-Appellant, v. NEW JERSEY RACING COMMISSION, Respondent-Respondent.

RICHARD J. NORMAN, TRAINER, Petitioner-Appellant, v. NEW JERSEY RACING COMMISSION, Respondent-Respondent.

No. A-1705-21

Superior Court of New Jersey, Appellate Division

September 1, 2023

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Argued February 15, 2023

On appeal from the New Jersey Racing Commission.

Joseph A. Deer argued the cause for appellants (Bashwiner and Deer LLC, attorneys; Joseph A. Deer, on the briefs).

Steven M. Gleeson, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney Sookie Bae-Park, Assistant Attorney General, of counsel Steven M. Gleeson and Levi Klinger-Christiansen, Deputy Attorneys General, on the brief).

Before Judges Accurso and Vernoia.

PER CURIAM

Petitioners Kelvin Harrison, Brett Pelling, Jeffrey Cullipher, Richard D. Johnson, Kevin C. McDermott, Marcus Melander, Richard J. Norman, and Keith D. Torro, licensed horse trainers in New Jersey, appeal from final decisions of the New Jersey Racing Commission imposing penalties for their violation of the Commission's rules governing the administration of controlled therapeutic medications to racehorses. Finding no error, we affirm.

These matters, consolidated for hearing in the Office of Administrative Law, were the subject of cross-motions for summary disposition initiated by petitioners. We take the facts from that record.

In 2014, the Commission amended its regulations to incorporate by reference the controlled therapeutic medication schedule of the Association of Racing Commissioners International (ARCI), as amended and supplemented, in accordance with N.J.A.C. 1:30-2.2. 46 N.J.R. 2162(a) (Nov. 3, 2014) (codified at N.J.A.C. 13:71-23.1). In December 2019, ARCI amended its schedule in several respects, including lowering the acceptable level of phenylbutazone, commonly referred to as "bute," a non-steroidal antiinflammatory drug (NSAID), in a horse's body on race day from 2.0 micrograms per milliliter in blood or serum to 0.3 micrograms per milliliter. In early January 2020, the Executive Director of the Racing Commission, Judith A. Nason, wrote to the head of the Standardbred Breeders and Owners Association summarizing the changes and enclosing a copy of the revised schedule, which she noted was then in effect, "as a courtesy for your membership."

In June 2020, each of the petitioners ran at least one horse placing first or second in races at the Meadowlands that was determined to have had an excess level of bute in its blood in a post-race blood test. See N.J.A.C. 13:71-23.1(b)(14). The Racing Commission's Board of Judges disqualified the horse in each case, forfeited the purse, fined the trainer $500 and suspended him for fifteen days for breach of his obligations under N.J.A.C. 13:71-23.6.^[1] N.J.A.C. 13:71-23.8(g).

Petitioners appealed and the Racing Commission transferred each case to the OAL, where they were consolidated on petitioners' motion. On their motion for summary disposition, petitioners asserted in their statement of undisputed material facts that each horse had a level of bute in its blood below the threshold allowed before the 2019 amendment but above the threshold permitted in 2020 on the day they raced, supporting their motion with a copy of the lab report of the post-race blood analysis of each horse.

Petitioners argued the Racing Commission had an obligation under the Administrative Procedure Act to provide them personal notice ARCI had lowered the threshold for bute in December 2019. They also argued the inoperability of the link included in N.J.A.C. 13:71-23.1(b)(14) to ARCI's controlled therapeutic medication schedule at http://arcicom.businesscatalyst. com/assets/arci-controlled-therapeutic-medication-schedule---version-2.1.pdf deprived them of the ability to access the revised schedule and perform their obligations under N.J.A.C. 13:71-23.6. Petitioners contended those failures warranted the dismissal of the violations and penalties imposed by the Racing Commission.

The Racing Commission cross-moved to uphold the violations and the penalties imposed on petitioners, arguing the Commission had properly noticed its incorporation of ARCI's controlled therapeutic medication schedule in 2014, providing all the notice to petitioners required. The Commission also contended it did not maintain the link to the medication schedule, which was simply provided as a convenience to the reader, and the link, even if broken, contained all the information required to locate the ARCI schedule.

In a thorough and thoughtful opinion tracing the history of the use of bute in the horse racing industry, its advantages in reducing inflammation, and its "major drawback" of interfering "with a veterinarian's ability to evaluate the degree of lameness" in a horse, as well as the efforts of various bodies to harmonize the rules governing horse racing around the country so trainers racing in different states face fewer conflicting rules, Administrative Law Judge William J. Courtney upheld petitioners' rule violations and penalties. ALJ Courtney found petitioners did not dispute the Racing Commission provided the required public notice when it adopted the amendments incorporating ARCI's controlled therapeutic medication schedule in 2014, and he rejected their argument that the Racing Commission was obligated to provide them personal notice in 2019 when ARCI lowered the threshold for bute.

Specifically, the ALJ rejected petitioners' reliance on In re Adoption of Rules Concerning Conduct of Judges of Compensation, N.J.A.C. 12:235-3.11 through 3.23, 244 N.J.Super. 683 (App. Div. 1990), as inapposite. In that case, we invalidated the adoption of regulations, after the shortest possible comment period, creating a commission to review the performance of the judges of workers' compensation with the power to recommend their "censure, suspension or removal." Id. at 684-85. We held "a proposed regulation directly, uniquely and significantly affecting about 50 state employees whose identities and addresses are well known" required more than the minimal statutory notice "to inform them of the proposed regulation and the time and manner of comment." Id. at 687.

ALJ Courtney correctly found the case does not stand for the proposition that an agency incorporating into its rules a third-party source by reference "as amended...