In the Matter of Mark Ford v. New York State Racing and Wagering Board ( 2014 )

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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 225
In the Matter of Mark Ford, et
al.,
Appellants,
v.
New York State Racing and
Wagering Board,
Respondent.
Andrew J. Turro, for appellants.
Kathleen M. Arnold, for respondent.
LIPPMAN, Chief Judge:
State agencies legislatively charged with regulating
and supervising pari-mutuel horse racing have for decades taken
measures to prevent horses from racing under the influence of
drugs administered solely to boost equine speed beyond an
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animal's natural capability. Prominent among these has been race
day sampling of the blood and/or urine of competing horses to
test for the presence of prohibited doping agents, a practice
specifically authorized by respondent's enabling legislation
(Racing, Pari-Mutuel Wagering & Breeding Law [hereinafter "Racing
Law"] § 301 [2] [a]).
The present litigation has concerned the validity of a
rule first promulgated by respondent in 2009 in response to the
introduction into the equine pharmacopeia of a new generation of
doping agents capable of enhancing equine race speed while
eluding race day detection. That rule, referred to as the Out of
Competition Testing Rule (OCTR) (9 NYCRR § 4120.171), required
respondent's licensees, among them petitioner standardbred owners
and trainers, to make the harness race horses they train and/or
own available to respondent's veterinarians for random blood and
urine sampling at points temporally and spatially removed from
any particular race in which they were to compete. Petitioners
commenced this hybrid article 78/declaratory judgment proceeding
in advance of the rule's effective date, alleging, among other
things, that equine drug testing without a nexus to the test
subject's participation in a specific, soon-to-be-run race is not
authorized by respondent's enabling legislation and would, if
instituted, entail constitutionally unreasonable intrusions upon
1
A separate rule providing for out-of-competition drug
testing of thoroughbred race horses (9 NYCRR § 4043.12) has not
been challenged.
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off-track farms stabling race horses, some of which are owned by
persons not subject to respondent's licensing jurisdiction.
The petition was granted by Supreme Court which found,
in essential part, that respondent had, in mandating out-of-
competition race horse drug testing, acted in excess of its
legislatively delegated power. The Appellate Division, however,
modified, effectively denying the petition, except as it bore
upon one OCTR provision not here at issue (i.e., 9 NYCRR 4120.17
[e] [3]). The court found the rule otherwise valid to the extent
challenged (107 AD3d 1071 [2013]), holding that the rule's
promulgation lay within respondent's broad, legislatively
conferred authority to regulate and supervise race meets at which
pari-mutuel wagering was permitted (id. at 1073). The court also
upheld specific provisions of the rule against petitioners'
claims that they were not rationally related to any legitimate
regulatory objective and that the rule's prescribed penalty for
illicit doping was so severe as to be legally offensive (id. at
1073-1077). In deeming the OCTR for the most part valid, the
Appellate Division necessarily rejected petitioners' contention
that the warrantless intrusions contemplated by the rule -- by a
sampling veterinarian into off-track stables possibly owned by
persons not subject to respondent's licensing jurisdiction --
constituted constitutionally offensive privacy invasions (id. at
1076). The matter is now before us on petitioners' appeal as of
right pursuant to CPLR 5601 (b) (1).
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While the appeal lies, our scope of review is
significantly narrowed by the circumstance that, during the
appeal's pendency, in August 2014, the challenged rule was
extensively amended, partly in response to petitioners'
objections. Although petitioners are unmollified by the
amendments, their present arguments, insofar as directed at
specific provisions of the originally promulgated OCTR, are
pervasively mooted by the rule's overhaul, and the amended rule,
the validity of which has not to date been adjudicated, is not
yet the proper subject of any appeal, much less one to this
Court.2 We do not then pass upon particular provisions of the
rule, either in its original or amended iteration, but confine
our review to the independently determinable and potentially
decisive issues raised and litigated as to whether there are
legal grounds for respondent's promulgation of any rule mandating
out-of-competition race horse testing, and whether a testing
regimen of the sort proposed would of necessity involve
constitutionally unreasonable intrusions by repondent's agents.
To the former inquiry we answer, "yes," and to the latter, "no."
We accordingly affirm as the Appellate Division reached the same
conclusions.
2
Indeed, we are advised that a new petition challenging the
amended OCTR has only just been served.
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I.
Respondent's rationale for requiring out-of-competion
testing is set forth in the affidavit of George A. Maylin, DVM,
the Director of the New York State Racing and Wagering Board Drug
Testing and Research Program since 1971, and a highly regarded
expert in the field of equine pharmacology. Dr. Maylin explains
that, while, historically, it had been possible effectively to
detect and thereby deter the use of prohibited horse doping
agents through race day sampling of race entrants, a regulatory
loophole was created when protein-based drugs came into use as
equine speed enhancers. According to Dr. Maylin, those powerful
new doping agents, capable of turning even naturally lame horses
into race competitors, could, unlike their antecedents, be
administered long before the race whose running they would
affect, and by reason of the lengthy interval between date of
administration and the date of competition, escape race day
detection in equine blood and urine. Unless, then, race horses
were tested closer to the date of drug administration -- which,
in the case of illicit doping, would, by design, be well in
advance of any race day screening -- the new doping agents could
and likely would be used with impunity. And, in that event, race
horses would, at great risk to their own well-being and that of
their jockeys, be pharmacologically enabled, and under
extraordinarily stressful racing conditions impelled, far beyond
their natural capabilities, solely to bestow an unfair, and
indeed anti-competitive advantage on unscrupulous owners and
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trainers. The threat posed to the integrity of state sponsored
pari-mutuel racing by this entirely practicable and, in Dr.
Maylin's judgment, already recurrent scenario was assertedly
palpable.
While petitioners claim that there are race-day tests
capable of detecting the kinds of doping agents targeted by out-
of-competition testing and that out-of-competition testing is
therefore unnecessary, the tests cited by petitioners are
exceedingly costly and evidently of undemonstrated efficacy in
detecting evidence of doping agents administered well in advance
of competition.3 The existence of tests of such uncertain
general utility does not stand in the way of concluding that the
relevant requirement of a rational basis for respondent's
determination to mandate out-of-competition testing (see
Kuppersmith v Dowling, 93 NY2d 90, 96 [1999]; New York State
Assn. of Counties v Axelrod, 78 NY2d 158, 166 [1991]) was met.
Notably, petitioners' experts, while faulting respondent's pre-
amendment OCTR for overbreadth and vagueness in its definition of
"prohibited substances" and for arbitrariness in its prescription
of a 180-day pre-race test window, do not appear to dispute the
3
For example, although in Matter of Laterza v N.Y.S. Racing
& Wagering Bd. (68 AD3d 1509 [3d Dept 2009]), race-day sampling
was, after a series of complex and extremely expensive laboratory
procedures, successfully used to establish that protein-based
doping agents had at some point, perhaps near in time to the
race, been given the animal, the case cannot be cited as
instancing a present capability reliably to detect the relatively
remote administration of such doping agents.
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essential point of the Maylin affidavit -- that out-of-
competition testing is, in some form, now necessary to insulate
horse racing and accompanying pari-mutuel wagering from the
hazardous and corrupting effects of modern horse doping.
Respondent, we note, is not alone in embracing out-of-competition
equine drug testing as a necessary regulatory counter to the new
generation of horse doping agents. Racing authorities in other
major horse racing jurisdictions, including Illinois, Indiana,
Kentucky, New Jersey and New Mexico, have issued OCTRs reflecting
a similar judgment as to the importance of out-of-competition
testing to the future of state sponsored equine racing and
wagering (see Ill. Admin. Code 603.200; 71 Indiana Admin. Code 8-
3-5; 810 Kentucky Admin. Regs. 1:110; New Jersey Admin. Code
13:70-14A.13; New Mexico Admin. Code 15.2.6).
II.
Petitioners nonetheless maintain that, even if out-of-
competition testing is, at least in concept, a reasonable means
of achieving a proper agency purpose, it cannot, given the scope
of respondent's legislatively delegated authority, be permissibly
mandated by respondent through agency rule making. This
contention rests essentially on language from two statutes:
Racing Law §§ 301 (2) and 902 (1).4 The former provides:
4
These statutes were amended in 2012 (L 2012, c 60) to
effect the merger of respondent New York State Racing and
Wagering Board into the State Gaming Commission. This matter has
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"2. Without limiting the generality of the
foregoing,5 and in addition to its other
powers:
"a. The state racing and wagering board shall
prescribe rules and regulations for
effectually preventing the use of improper
devices, the administration of drugs or
stimulants or other improper acts for the
purpose of affecting the speed of harness
horses in races in which they are about to
participate" (emphasis supplied).
And the latter:
"1. In order to assure the public's
confidence and continue the high degree of
integrity in racing at the pari-mutuel
betting tracks, equine drug testing at race
meetings shall be conducted by a state
college within this state with an approved
equine science program."
been litigated on the basis of the statutes as they read at the
time of the original OCTR's promulgation and we, accordingly,
quote the statutes as they read before their amendment. The pre-
and post-amendment versions do not, in any event, differ in
respects material to the substantive issues presently raised.
5
The "foregoing" here refers to the statute's first
subsection, which says:
"1. Pursuant to the provisions of sections
two hundred twenty-two through seven hundred
five of this chapter, the state racing and
wagering board shall have power to supervise
generally all harness race meetings in this
state at which pari-mutuel betting is
conducted. The board may adopt rules and
regulations not inconsistent with sections
two hundred twenty-two through seven hundred
five of this chapter to carry into effect its
purposes and provisions and to prevent
circumvention or evasion thereof" (emphasis
supplied).
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Petitioners reason that section 301 (2) (a)'s reference to
respondent's authority to prescribe rules prohibiting the
administration of drugs "for the purpose of affecting the speed
of harness horses in races in which they are about to
participate" and section 902 (1)'s designation of an official
tester "at race meetings" together demonstrate that the Board's
testing authority is statutorily limited to horses competing at
race meetings.
Petitioners, we think, over-read these provisions.
While it is true that an administrative agency within the
executive branch may not under the guise of rule-making engage in
basic policy determinations reserved to the Legislature (Rent
Stabilization Assn. of New York v Higgins, 83 NY2d 156, 169
[1993], cert denied 512 U.S. 1213 [1993]), it is also true that the
Legislature “has considerable latitude in determining the
reasonable and practicable point of generality in adopting a
standard for administrative action and, thus, [that] a reasonable
amount of discretion may be delegated to . . . administrative
officials” (Brightonian Nursing Home v Daines, 21 NY3d 570, 579
[2013] [internal quotation marks and citations omitted]). Here,
the Legislature, in drafting Racing Law § 301 (2), was at pains
to be explicit that that subsection was not to be construed as a
limitation upon respondent's powers "to supervise generally all
harness race meetings in this state at which pari-mutuel betting
is conducted" and in that connection to "adopt rules and
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regulations . . . to carry into effect its [respondent's]
purposes and provisions and to prevent circumvention or evasion
thereof" (Racing Law § 301 [1]). Thus, not only does section 301
when read in its entirety make plain that the Legislature had no
purpose of restricting respondent's general supervisory power
over pari-mutuel harness race meetings, but it specifically
authorizes regulatory action to prevent the circumvention or
evasion of existing rules, necessarily including those whose
object, sensibly understood, is "effectually" to prevent horses
from racing under the influence of speed-enhancing doping agents.
Out-of-competition drug testing, which, as noted, has as its
raison d'etre the plugging of a loophole created in the pre-
existing regulatory regimen by the introduction of doping agents
capable of affecting competitive performance while eluding race
day detection, is precisely the sort of measure contemplated by
section 301 (1). As for section 902 (1), it too has no apparent
limiting purpose -- its designation of a laboratory to perform
equine drug testing at race meetings does not reasonably signify
that such testing may be required by respondent only at race
meetings.
Indeed, respondent's legislatively delegated authority
over horse racing and attendant pari-mutuel activities has
historically been well nigh plenary. When the challenged rule
was first promulgated, Racing Law § 101 (1), incorporating
language from a predecessor enabling provision dating from 1973
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(L 1973, ch 346, § 3), vested in respondent "general jurisdiction
over all horse racing activities and all pari-mutuel activities,
both on track and off-track . . ., in the state and over the
corporations, associations, and persons engaged therein."6
Respondent's power effectively to reach off-track activity, such
as horse doping, bearing directly on the safety and integrity of
pari-mutuel racing, seems to us unarguable.
III.
Petitioners' claim, that respondent's original OCTR
facially infringed the constitutionally protected privacy rights
of persons stabling race horses chosen for testing, is
unreviewable since, as noted, the initial OCTR has been
substantially superceded. To the extent, however, that
petitioners may be understood to argue that warrantless, out-of-
competition equine testing pursuant to an administrative
regulatory scheme is categorically incompatible with the
constitutional prohibition against unreasonable governmental
searches, their argument is reviewable, but unavailing.
Respondent's licensees, having voluntarily entered a pervasively
regulated field of commercial endeavor7 in which suspicionless
6
Although § 101 was repealed in 2012, after the rule at
issue was promulgated, its relevant provisions were reenacted in
Racing Law §§ 104 (1), (4) and (19).
7
That horse racing and accompanying pari-mutuel wagering are
closely regulated in New York and elsewhere has been often noted
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equine testing has for decades been used as a routine, legally
mandated prophylactic, can claim no privacy expectation that
would prevent respondent from testing their race horses' blood
and urine for illicit, speed-enhancing substances in accordance
with a prescribed testing regimen meaningfully limiting the scope
of any intrusion incident to the sampling procedure (see New York
v Burger, 482 U.S. 691, 702 [1987]; People v Quackenbush, 88 NY2d
534, 541-543 [1996]). And, although private horse farm owners
not similarly subject to pervasive regulation ordinarily retain a
reasonable expectation that government agents will not intrude
upon their property except with their consent or pursuant to a
warrant, when they enter into commercial arrangements pursuant to
which race horses owned or trained by respondent's licensees are
stabled on their property, they may reasonably be deemed to have
relinquished a privacy-based objection to the very closely
circumscribed property intrusion that will foreseeably occur
incident to an appropriately focused out-of-competition testing
regimen. The intrusion contemplated by such a testing regimen is
not one into any residential or otherwise notably private space,
but a highly focused, guided and brief veterinary foray into
leased commercial stabling areas (cf. Anobile v Pelligrino, 303
F3d 107, 120-121 [2d Cir 2001] [administrative search warrant
exception inapplicable to search of race-track dormitories used
(see e.g. Anobile v Pelligrino, 303 F3d 107, 111 [2d Cir 2001];
Dimeo v Griffin, 943 F2d 679, 681 [7th Cir 1991]).
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as residences]) with the object, not of discovering evidence of
criminal activity (cf. People v Scott, 79 NY2d 474 [1992]), but
of sampling, exclusively for regulatory enforcement purposes, the
blood and urine of a specifically identified race horse. The
horse farm owner has, by hypothesis, leased stable space to
respondent's licensee for the habitation of a race horse and, in
so doing, must have understood that the horse would from time to
time be attended at the stable by a veterinarian. We do not
think that such a visit, particularly when conducted in
accordance within a duly constraining regulatory framework, will
generally implicate a privacy interest triggering the requirement
of a warrant or prior consent by the stable owner.
In sum, we hold no more than that respondent possesses
the power to promulgate rules mandating warrantless, out-of-
competition equine testing for proscribed doping agents.
Accordingly, the order of the Appellate Division should be
affirmed, with costs.
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Order affirmed, with costs. Opinion by Chief Judge Lippman.
Judges Read, Smith, Pigott, Rivera and Abdus-Salaam concur.
Decided December 18, 2014
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