DARRAN CASSAR VS. NEW JERSEY RACING COMMISSION (NEW JERSEY RACING COMMISSION) ( 2018 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    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.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-4613-16T1
    DARRAN CASSAR,
    Petitioner-Appellant,
    v.
    NEW JERSEY RACING
    COMMISSION,
    Respondent-Respondent.
    ___________________________
    Submitted September 26, 2018 – Decided October 31, 2018
    Before Judges Accurso and Moynihan.
    On appeal from the New Jersey Racing Commission,
    Docket No. NJRC-16-H-14-MD.
    Arleo & Donohue, LLC, attorneys for appellant
    (Timothy M. Donohue, on the brief).
    Gurbir S. Grewal, Attorney General, attorney for
    respondent (Melissa Dutton Schaffer, Assistant
    Attorney General, of counsel; George N. Cohen,
    Deputy Attorney General, on the brief).
    PER CURIAM
    Appellant Darran Cassar appeals from a final decision of the New Jersey
    Racing Commission (Commission) suspending his license as a Standardbred
    trainer for one year, "barring him from all grounds subject to the Commission's
    jurisdiction," and imposing a $1000 fine after a post-race urine sample from a
    horse he trained tested positive for morphine and hydromorphone.1            The
    Commission adopted the administrative law judge's (ALJ's) conclusion that
    appellant violated regulations imposing liability on trainers who fail to guard
    any horse with which they are "charged with the custody, care and responsibility
    . . . against the administration of any drug or substances foreign to the natural
    horse," N.J.A.C. 13:71-23.6, and fail "to protect the integrity of horse racing
    [and] guard the health of the horse," N.J.A.C. 13:71-23.1(a). Appellant was also
    found to be in violation of the regulation prohibiting conduct deemed
    detrimental to harness racing, N.J.A.C. 13:71-7.29(a)(13).       He argues the
    Commission's penalty was arbitrary and capricious in that the Commission
    "inexplicably eschew[ed] reliance upon the same [Association of Racing
    Commissioners International (ARCI)] guidelines that it admittedly consulted"
    before imposing the penalty – guidelines appellant contends should have been
    1
    The Commission's decision also disqualified the horse, which had finished
    first, and redistributed the purse.
    A-4613-16T1
    2
    considered by the Commission – and that the penalty was "grossly
    disproportionate" to another recently imposed for a similar offense.              The
    Commission      acted   within   its   authority in    determining     the penalty.
    Consequently, we affirm.
    The Commission found that both morphine and hydromorphone were
    listed in the ARCI Uniform Classification Guidelines for Foreign Substances
    and Recommended Penalties as Class 1 drugs. It accepted the ALJ's findings
    that: hydromorphone found in appellant's horse was a metabolite of morphine;
    appellant failed "to protect the horse from the administration of morphine" and
    "to protect the integrity of the race and . . . to guard the health of the horse"; and
    appellant's conduct was detrimental to the sport. It, however, rejected the ALJ's
    penalty, determining the ALJ's reduction of the one-year suspension and $1000
    fine imposed by the Commission's Board of Judges to a fifteen-day suspension
    and $500 fine was based on the penalties set forth in the ARCI guidelines for
    the "unintentional administration of morphine."
    In determining its penalty, the Commission adverted to the testimony of
    John Tomasello – "a racing official [employed by the Commission serving] in
    the capacity of presiding judge at the Meadowlands Race Track" – during
    proceedings before the ALJ, "regarding the Commission's procedure for
    A-4613-16T1
    3
    imposing penalties and the factors that must be considered and weighed." The
    Commission noted Tomasello's acknowledgement that the Board of Judges
    consulted the ARCI guidelines "regarding its classification of drugs and
    recommended penalties" but found Tomasello clearly stated that the
    "Commission has not adopted the ARCI [g]uidelines and those penalty
    recommendations are used solely as guidelines." The Commission accepted
    Tomasello's testimony, including his opinion "that the appropriate penalty for
    this morphine positive, where there is no indication that the drug was
    intentionally administered, is a [one-year] suspension and $1[]000 fine."2
    In considering appellant's challenge to the penalty imposed by the
    Commission, we heed our Supreme Court's recent iteration of our standard of
    review:
    Traditionally, we give substantial deference to an
    agency’s imposition of a disciplinary sanction, based
    on its “expertise and superior knowledge of a particular
    field.” In re 
    Herrmann, 192 N.J. at 28
    . “In light of the
    deference owed to such determinations, when
    reviewing administrative sanctions, ‘the test . . . is
    whether such punishment is so disproportionate to the
    offense, in light of all the circumstances, as to be
    2
    Although the Commission described Tomasello's proposed penalty as one for
    a "morphine positive," Tomasello's sanction was based on the finding that
    morphine and hydromorphone were administered to the horse. The ALJ's
    penalty was based on the administration of morphine alone, after finding
    hydromorphone was present as a metabolite of morphine.
    A-4613-16T1
    4
    shocking to one’s sense of fairness.’” 
    Id. at 28-29
                (quoting In re Polk, 
    90 N.J. 550
    , 578 (1982)). That
    standard gives the agency a wide berth of discretion.
    Our task is not to substitute our judgment for that of the
    agency, but rather to stay our hand even if we would
    have reached a different result. 
    Ibid. Only a patently
                unreasonable sanction would call for this Court’s
    intervention.
    [In re Hendrickson, __ N.J. __, __ (2018) (slip at 16-
    17) (alteration in original).]
    The Court previously recognized that the Legislature granted the
    Commission
    full regulatory power over horse racing in this state.
    State v. Dolce, 
    178 N.J. Super. 275
    , 285 (App. Div.
    1981); N.J.S.A. 5:5-22 to -109. In particular, the
    Racing Commission is empowered to prescribe the
    rules, regulations, and conditions under which all horse
    races are conducted, N.J.S.A. 5:5-30, and to regulate
    the licensing of those connected with horse racing,
    N.J.S.A. 5:5-33. Furthermore, the State has a vital
    interest in maintaining the integrity of the horse-racing
    industry. Dolce, N.J. Super. at 284. Towards that end,
    N.J.S.A. 5:5-33 imposes on the Racing Commission a
    statutory obligation "to revoke or refuse to issue a
    license if in the opinion of the Commission the
    revocation or refusal to issue such license is in the
    public interest."
    [Delguidice v. N.J. Racing Comm'n, 
    100 N.J. 79
    , 90
    (1985).]
    To that end, the regulatory scheme affords the Commission broad discretion in
    meting out penalties for violations including:
    A-4613-16T1
    5
    1. Denial, revocation or suspension of license;
    2. Monetary fines not exceeding $ 50,000 for each
    violation. The steward and board of judges may not
    impose directly a fine in excess of $ 5,000.
    3. Suspension from one or more activities at one or
    more tracks;
    4. Expulsion from racing in New Jersey;
    5. Forfeiture of purse;
    6. In addition to the foregoing, the Commission may
    impose as a condition to licensing such conditions as it
    shall deem appropriate to secure compliance with the
    rules, regulations and directives of the Commission.
    [N.J.A.C. 13:71-2.3(a).]
    Although the Commission acknowledged its adoption of the ARCI
    guidelines pertaining to enhanced-penalty provisions for repeat offenders,
    N.J.A.C. 13:71-23.7(c), and threshold levels for prohibited controlled
    therapeutic medications, N.J.A.C. 13:71-23.1(b)(14), it has not adopted the
    ARCI guidelines pertaining to penalties for first-time morphine positives. Its
    decision to decline adoption of those penalty provisions because it "does not
    agree with many of the recommended penalties" and to treat the guidelines only
    as "a useful tool" is within the prerogative granted the Commission by the
    Legislature. See N.J. Racing Comm'n v. Elliot, 
    290 N.J. Super. 140
    , 146 (App.
    A-4613-16T1
    6
    Div. 1996) (holding "with the principles of 'trainer responsibility' and 'no
    medication' clearly established in law, it is well within the authority and
    discretion of the Commission to impose severe sanctions for violations of those
    principles" it saw as "especially dire").
    We do not agree with appellant's argument that the Commission was
    required to abide by or consult the ARCI guidelines because Tomasello
    referenced them when he testified why he believed a one-year suspension was
    appropriate.3 The Commission was vested with the authority to determine the
    penalty; it was not bound by Tomasello's or the ALJ's opinion regarding the
    sanction. N.J.A.C. 1:1-18.6(b).
    The Commission conceded there was no evidence the morphine was
    intentionally administered to the horse. It concluded, however, that appellant
    did not "protect the horse under his care" and that the ALJ's penalty was
    inappropriate where the presence of morphine, a Class 1 drug, was detected.
    3
    The ARCI guidelines in effect at the time of appellant's violation recommended
    a Class B penalty for morphine and a more severe Class A penalty for
    hydromorphone, although both were Class 1 drugs. ARCI amended its
    guidelines subsequent to the violation but prior to the hearings to change the
    penalty classification for morphine to Class A. The ALJ appears to have relied
    on the unamended ARCI guidelines. We need not consider which of those
    guidelines should have been considered because the Commission declined to
    adopt either version.
    A-4613-16T1
    7
    Considering the Legislature's broad grant of power to the Commission, N.J.S.A.
    5:5-22, and the "intent of [the administrative] rules to protect the integrity of
    horse racing, to guard the health of the horse, and to safeguard the interests of
    the public and racing participants through the prohibition and/or control of all
    drugs and/or substances foreign to the natural horse," N.J.A.C. 13:71 -23.1(a),
    we do not conclude the imposition of a one-year suspension and $1000 fine to
    be "so disproportionate to the offense, in light of all the circumstances, as to be
    shocking to one’s sense of fairness." In re 
    Herrmann, 192 N.J. at 28
    -29. The
    balance of appellant's argument regarding the disproportionality of the penalty
    to others imposed is without sufficient merit to warrant discussion in this
    opinion. R. 2:11-3(e)(1)(E).
    Affirmed.
    A-4613-16T1
    8
    

Document Info

Docket Number: A-4613-16T1

Filed Date: 10/31/2018

Precedential Status: Non-Precedential

Modified Date: 8/20/2019