De Vitis v. New Jersey Racing Com'n

• Decision Date: 15 July 1985
• Citation: 495 A.2d 457,202 N.J.Super. 484
• Parties: Tom DE VITIS, Appellant, v. NEW JERSEY RACING COMMISSION, Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 484

202 N.J.Super. 484

495 A.2d 457

Tom DE VITIS, Appellant, v. NEW JERSEY RACING COMMISSION, Respondent.

Superior Court of New Jersey Appellate Division.

Argued May 29, 1985.

Decided July 15, 1985.

Michael D. Schottland, West Long Branch, for appellant (Chamlin, Schottland, Rosen, Cavanagh & Uliano, West Long Branch, attorneys; Michael D. Schottland, West Long Branch, of counsel, Steven J. Abelson, West Long Branch, on brief).

Maxine H. Neuhauser, Deputy Atty. Gen. for respondent (Irwin I. Kimmelman, Atty. Gen. of N.J., attorney; James J. Ciancia, Asst. Atty. Gen., of counsel; Neuhauser, on brief).

Before Judges MICHELS, PETRELLA and BAIME.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Tom De Vitis, a harness racing driver-trainer-owner licensed in New Jersey, appeals from a final administrative action of the New Jersey Racing Commission (Commission). The Commission imposed a 10-day suspension upon De Vitis for violating the provisions of N.J.A.C. 13:71-20.10(b). The Commission found that during the fifth race at Freehold Raceway on November 1, 1983, De Vitis drove in an unsatisfactory manner as a result of lack of effort, carelessness, misjudgment or a demonstrated lack of judgment in performance in violation of the provisions of N.J.A.C. 13:17-20.10(b).

We have studied carefully the entire record in the light of the arguments presented and are satisfied that the determination of the Commission is not arbitrary, capricious or unreasonable and does not lack full support in the evidence. See Henry v. Rahway State Prison, 81 N.J. 571, 579-580, 410 A.2d 686 (1980); Campbell v. Dept. of Civil Service, 39 N.J. 556, 562, 189 A.2d 712 (1963). See also R. 2:11-3(e)(1)(D). Moreover, all of the issues of law raised are clearly without merit. R. 2:11-3(e)(1)(E).

I.

We emphasize that our role in reviewing the Commission's findings in a case of this kind is to determine "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 ... and ... with due regard also to the agency's expertise where such expertise is a pertinent factor." Mayflower Securities v. Bureau of Securities, 64 N.J. 85, 92-93, 312 A.2d 497 (1973), (quoting Close v. Kordulak Bros., 44 N.J. 589, 599, 210 A.2d 753 (1965)). See also In re Suspension of Heller, 73 N.J. 292, 309, 374 A.2d 1191 (1977); Jackson v. Concord Company, 54 N.J. 113, 117-118, 253 A.2d 793 (1969). We are satisfied that such evidence appears in the record.

Furthermore, it is not our function to substitute our independent judgment for that of an administrative body, such as the Commission, where there may exist a mere difference of opinion concerning the evidential persuasiveness of the relevant proofs. First Sav. & L. Assn. of E. Paterson v. Howell, 87 N.J.Super. 318, 321-322, 209 A.2d 343 (App.Div.1965), certif. den., 49 N.J. 368, 230 A.2d 400 (1967). As a reviewing court, we will not weigh the evidence determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein. See In re Tenure Hearing of Grossman, 127 N.J.Super. 13, 23, 316 A.2d 39 (App.Div.1974), certif. den., 65 N.J. 292, 321 A.2d 292 (1974).

Additionally, the determination to be reviewed in this case is that of the Commission, not that of the administrative law judge who made findings of fact and conclusions of law. The supplementary legislation to our Administrative Procedure Act, see N.J.S.A. 52:14B-1 et seq.; 52:14F-1 et seq., has preserved the bifurcated administrative adjudication process in which the hearing and decisional phases of cases are handled separately. See In re Uniform Adm'v Procedure Rules, 90 N.J. 85, 91, 447 A.2d 151 (1982). Thus, while administrative law judges have primary responsibility for conducting hearings in contested cases, "the head of an agency will himself exercise the ultimate options of adopting, rejecting, or modifying" the recommendations of the administrative law judge in each particular case. Id. (quoting Sponsors' Statement to Senate No. 766 (Senators Yates and Weiss)). The Commission has the duty of ensuring that the administrative law judge's decision was based on a preponderance of the credible evidence. Cf. In re Polk License Revocation, 90 N.J. 550, 560, 449 A.2d 7 (1982); Dore v. Bedminster Tp. Bd. of Ed., 185 N.J.Super. 447, 453, 449 A.2d 547 (App.Div.1982).

The Legislature vested in the Commission the power and duty to govern all aspects of horse racing in the State, including all those employed in the industry. State v. Dolce, 178 N.J.Super. 275, 285, 428 A.2d 947 (App.Div.1981). The State has had and continues to have a vital interest in the horse racing industry, particularly since the business itself and the legalized gambling which accompanies its activities strongly impact the public interest. State v. Dolce, supra, 178 N.J.Super. at 284, 428 A.2d 947; State v. Garden State Racing Assn., 136 N.J.L. 173, 175-176, 54 A.2d 916 (E. & A.1947). See Jersey Downs, Inc. v. Div. of N.J. Racing Commission, 102 N.J.Super. 451, 457, 246 A.2d 146 (App.Div.1968). Indeed, the danger of clandestine and dishonest activity inherent in horse racing, as in all forms of gambling, has been well recognized. See Garifine v. Monmouth Park Jockey Club, 29 N.J. 47, 55, 148 A.2d 1 (1959); Dare v. State, 159 N.J.Super. 533, 536, 388 A.2d 984 (App.Div.1978). "Strict and close regulation is therefore regarded as highly appropriate," and the Commission's expertise in the area should receive substantial deference. Dare v. State, supra, 159 N.J.Super. at 537, 388 A.2d 984. See Jersey Downs, Inc. v. Div. of N.J. Racing Comm'n, supra, 102 N.J.Super. at 457, 246 A.2d 146.

Here, the Commission suspended De Vitis for unsatisfactory driving due to lack of effort in violation of N.J.A.C. 13:71-20.10(b). That provision states that:

(b) In the event a drive is unsatisfactory due to lack of effort, carelessness, misjudgment, or demonstrated lack of judgment in performance, and the judges believe that there is no fraud, gross carelessness, or a deliberate inconsistent drive, they may impose a penalty similarly under this subsection.

This rule is promulgated under authority of N.J.S.A. 5:5-30, which grants the Commission full power "to prescribe rules, regulations and conditions under which all races shall be conducted in the State of New Jersey...." See also N.J.S.A. 5:5-22.

Contrary to De Vitis's assertions, the Commission did not "blindly accept" the State Steward's and the Presiding Judge's testimony without considering De Vitis's explanation for his horse's divergent performances on November 1 and November 8. Where there is substantial evidence in the record to support more than one result, it is the agency's choice which governs. Dore v. Bedminster Tp. Bd. of Ed., supra, 185 N.J.Super. at 453, 449 A.2d 547. See New Jersey Bell Telephone Company v. State, 162 N.J.Super. 60, 76-77, 392 A.2d 216 (App.Div.1978).

The Commission was fully entitled to reject the administrative law judge's report and to issue its own findings based on the record of the hearing below. See N.J.A.C. 1:16.4, 16.5. After fully "review[ing] the transcript of the Office of Administrative Law hearing and attempting to review the videotapes of the two races in question" (which videotapes were destroyed in the Freehold Raceway fire), the Commission succinctly indicated its differences with the administrative law judge, including the following:

(f) Dunnville Pendy was a "commanding factor" in the November 8, 1983 race and demolished the field.

(g) During the November 1, 1983 race, Tom De Vitis did not get the most out of Dunnville Pendy, exhibiting a lack of effort. De Vitis should not have allowed himself to get locked in, especially when the horse had the ability exhibited on November 8, 1983. Having driven and trained the horse for at least three weeks prior to the November 1, 1983 race, De Vitis knew or should have known, the capacity of his horse. In making this finding the Commission finds State Steward Richard O'Donnell's testimony, which was based upon his 20 years experience as an official, credible.

Simply stated, "De Vitis did not get the most out of his horse on November 1, 1983." These conclusions had ample support in the record and should not be disturbed.

By focusing on whether De Vitis "knew or should have known ... the capacity of his horse" on November 1, 1983, the Commission set an exceedingly low threshold for identifying violations of N.J.A.C. 13:71-20.10(b) and placed a corresponding burden on its licensed drivers to avoid appearances of impropriety and to maintain the level and quality of competition in racing. Cf. Dare v. State, supra, 159 N.J.Super. at 536-537, 388 A.2d 984. N.J.A.C. 13:71-20.10(b) authorizes the Commission to penalize drivers for any "lack of effort, carelessness, misjudgment, or demonstrated lack of judgment in performance" without having to establish an element of fraud. In fact, in the instant case the Commission specifically excluded "from consideration all evidence and testimony relating to betting odds changes."

De Vitis also contends that the Commission's decision failed to adequately set forth the issues on which the Commission disagreed with the administrative law judge or the basis for that disagreement. However, the Commission "had no obligation to discuss in detail every point of disagreement with the ALJ." Public Advocate Dep't v. Public Utilities Bd., 189 N.J.Super. 491, 505, 460 A.2d 1057 (App.Div.1983). See New Jersey Bell Telephone Company v. State, supra, 162 N.J.Super. at 77, 392 A.2d 216. The Commission's decision needed only to "demonstrate that the agency gave attentive consideration to the ALJ's recommendation as part of the record and [to] address itself to key items of evidence which...