Warner v. New York State Racing and Wagering Bd., Div. of Harness Racing

• Decision Date: 27 September 1988
• Citation: 533 N.Y.S.2d 162,143 A.D.2d 500
• Parties: Matter of Robert WARNER, Petitioner, v. NEW YORK STATE RACING AND WAGERING BOARD, DIVISION OF HARNESS RACING, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 162

533 N.Y.S.2d 162

143 A.D.2d 500

Matter of Robert WARNER, Petitioner, v. NEW YORK STATE RACING AND WAGERING BOARD, DIVISION OF HARNESS RACING, Respondent.

Supreme Court, Appellate Division Fourth Department.

Sept. 27, 1988.

Before DOERR, J.P., and DENMAN, BOOMER, PINE and DAVIS, JJ.

MEMORANDUM:

This is an original Article 78 proceeding commenced by petitioner, a Canadian citizen, to challenge respondent's denial of his application for a license as an owner, trainer and driver of harness race horses.

In 1982, respondent New York State Racing and Wagering Board (Board) revoked petitioner's license as a harness racing driver and that revocation was upheld by this court (Matter of Warner v. New York State Racing & Wagering Bd., 99 A.D.2d 680, 471 N.Y.S.2d 922). In 1984, 1985 and again in 1987 petitioner sought relicensing by the Board, which applications were summarily denied. After the second denial, petitioner challenged the Board's determination in an Article 78 proceeding. Once again we confirmed the determination of the Board, but without prejudice to any future applications by petitioner for relicensi (Matter of Warner v. New York State Racing & Wagering Bd., Div. of Harness Racing, 126 A.D.2d 956, 511 N.Y.S.2d 729).

In his latest application for relicensing, petitioner demonstrated that his license to race and train horses in Canada had been restored by the Ontario Racing Commission, which had revoked petitioner's license after the determination of the Board in New York in 1982. Petitioner further offered proof of his involvement in community affairs in his home area in Canada, along with significant letters attesting to his character.

At the hearing on petitioner's latest application, the only witness for the Board testified that he recommended denial of petitioner's license application "essentially for the same reasons as in 1985; his involvement in the race-fixing conspiracy." The witness testified that while he found petitioner's general character to be "exemplary", he felt that petitioner's 1982 misconduct was sufficiently serious to justify the denial of petitioner's 1987 application. The hearing officer concluded that the lapse of time and other evidence of petitioner's rehabilitation did not justify the granting of petitioner's application. The Board adopted the hearing officer's report. We disagree.

There is nothing in this record to indicate that petitioner is unfit; in fact, the Board's only witness admitted that petitioner's character is exemplary. While we recognize that the court should...