By Chris E. Wittstruck
Citing repeated violations and disregard of the rules of racing, on October 12th the New York State Racing and Wagering Board (the Board) revoked the license of veteran Thoroughbred horse trainer Richard "Dick" Dutrow, Jr. In addition to prohibiting Dutrow from reapplying for a license for 10 years, the Board fined him $50,000.00. On Monday, October 17th, the State Supreme Court in Schenectady granted the trainer a 30-day stay of enforcement pending the filing of a C.P.L.R. Article 78 proceeding challenging the administrative adjudication (Index # 2254/2011).
Dutrow, 52, was the trainer of 2005 Horse of the Year, Saint Liam, as well as 2008 Kentucky Derby and Preakness winner Big Brown. While the trainer's licensing history is checkered with numerous violations of racing regulations over the course of a decades- long career, Dutrow denies the instant allegations lodged against him, and alternatively takes issue with the severity of the penalty imposed. An intense analysis at the facts and circumstances surrounding the matter presents a preview of the issues that will be litigated over the course of the foreseeable future.
One sustained charge involved the presence of a veterinary sedative and analgesic in a post-race sample taken from one of Dutrow's horses. Yet the sedative appeared only in a urine sample; the horse's blood sample tested negative. Dutrow's expert opined that based upon a low positive in urine and no positive in the blood, the result could have been the product of cross-contamination of the sample, inasmuch as the sedative in question is commonly utilized as an intranasal spray for the treatment of migraines in humans. The possibility that a prior horse in the test stall might have excreted the substance prior to the arrival of Dutrow's horse was also raised. The Hearing Officer rejected both theories as lacking the level of substantial evidence required to rebut the presumption that Dutrow, having full care, custody and control over the animal, was at all times the guardian of the horse's physical condition. This presumption is known in racing law as the trainer responsibility rule.
Another sustained charge involved the confiscation of three syringes and needles containing a tranquilizer from Dutrow's desk drawer at his barn at Aqueduct Racetrack. It is a violation of Board rules for non-veterinaries to be in such possession. Dutrow was not present for the search, and denied any knowledge of the syringes.
Dutrow's attorney, Michael Koenig, was quoted in industry media outlets as complaining that: "The Racing and Wagering Board structure and process allows them to play prosecutor, judge and jury. No fair decisions can result from such a stacked process." Unlike states such as New Jersey, where an independent administrative law judge system (Office of Administrative Law) is in place, New York hearing officers receive an Order of Reference from the Board and act accordingly. Still, even in New Jersey, agency heads can in certain circumstances reject or modify an Administrative Law judge's determination.
Mr. Koenig also accused the Board's Chairman, retired state senator John Sabini, as having a "remarkable'' conflict of interest in the Dutrow matter, inasmuch as Sabini is also a board member of the Association of Racing Commissioners International; the same group whose President, Ed Martin, a former New York racing official, called for the revocation of Dutrow's license in a highly publicized letter to the Board. Mr. Koenig's call for Chairman Sabini's recusal was denied by the Hearing Officer as beyond the scope of his authority and was, in any event, rejected by Chairman Sabini himself. Whether Mr. Koenig's theory of conflict goes beyond a mere appearance of impropriety remains to be seen.
The rejection by the Hearing Officer of the testimony of Mr. Dutrow's character witnesses, ranging from retired Hall of Fame jockey Angel Cordero, Jr. to renowned Kentucky veterinary surgeon Dr. Lawrence Bramlage, coupled with the nature of Mr. Dutrow's medication violations over the last 10 years as being mostly minor overages of legitimate therapeutic drugs, sets the stage for a claim that the 10-year administrative ban is "shocking to the conscious" (See Matter of Pell v. Board of Education, 34 NY2d 222 (1974)). The Board's 10-year reapplication ban, however, was in fact a melioration of the hearing officer's recommendation that Dutrow never be permitted to reapply for a racing license.
In opposition to the injunctive relief request, Board counsel argued that a stay through the appeals process could grant Dutrow the right to train in New York for up to 36 months. Such a stay would also enable Dutrow to avoid the collateral reciprocity effects of the ban, and thus permit him to train in other jurisdictions as well. While time would assuredly be on Dutrow's side if he receives a stay throughout his appeals (C.P.L.R. 7805), whether any of his claims regarding due process violations, substantial evidence, inherent conflict and excessive penalty are ultimately viable will determine whether his property right in an occupational racing license is irretrievably lost (Barry v. Barchi, 443 U.S. 55 (1979).