IN THE MATTER OF THE ADOPTION OF AMENDMENTS TO N.J.A.C. 13:70-14A.13 N.J.A.C. 13:70-14A.14 N.J.A.C. 13:70-14A.15, and N.J.A.C. 13:70-14A.16 BY THE NEW JERSEY RACING COMMISSION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1274-07T31274-07T3

IN THE MATTER OF THE

ADOPTION OF AMENDMENTS

TO N.J.A.C. 13:70-14 A. 13,

N.J.A.C. 13:70-14 A. 14,

N.J.A.C. 13:70-14 A. 15, and

N.J.A.C. 13:70-14 A. 16 BY

THE NEW JERSEY RACING

COMMISSION.

____________________________________________________________

 

Submitted December 9, 2008 - Decided

Before Judges Skillman, Graves and Grall.

On appeal from a Final Decision of the

New Jersey Racing Commission, Proposal Nos.

PRN-2007-239 and PRN-2007-240.

Lomurro, Davison, Eastman & Munoz, P.A.,

attorneys for appellant New Jersey

Thoroughbred Horsemen's Association

(Michael D. Schottland, of counsel;

Peter V. Koenig, on the brief).

Anne Milgram, Attorney General, attorney

for respondent New Jersey Racing Commission

(Lewis A. Scheindlin, Assistant Attorney

General, of counsel; Judith A. Nason,

Deputy Attorney General, on the brief).

PER CURIAM

The New Jersey Thoroughbred Horsemen's Association (Association) challenges the validity of four regulations approved by the New Jersey Racing Commission (Commission). The Commission was created to "regulat[e] horse racing, [and] to advocate the growth, development and promotion of the horse racing industry in this State." N.J.S.A. 5:5-22. One of the regulations, N.J.A.C. 13:70-14 A. 13, authorized the taking of blood samples from thoroughbred racehorses for the purpose of testing for Epogen and other blood doping agents on non-race days and race-days (pre-race) at the Commission's discretion. The other three regulations, N.J.A.C. 13:70-14 A. 14, N.J.A.C. 13:70-14 A. 15, and N.J.A.C. 13:70-14 A. 16, established a post-race blood gas testing program to detect whether alkalinizing agents, commonly called "milkshakes," were administered to horses in an effort to enhance their performance during a race. The Association contends, among other things, that the regulations were adopted by the Commission in violation of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -25, and the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21. After reviewing the Association's claims in light of the record and the applicable law, we find no justification for invalidating the regulations.

Prior to adopting or amending any rule or regulation, the APA requires an administrative agency to "[g]ive at least 30 days' notice of its intended action[,]" N.J.S.A. 52:14B-4(a)(1), and the agency must afford interested parties a "reasonable opportunity to submit data, views, or arguments, orally or in writing." N.J.S.A. 52:14B-4(a)(3). If sufficient public interest is demonstrated in the proposed rules, then the comment period may be extended. Ibid. In addition, the APA requires the agency to "consider fully all written and oral submissions respecting the proposed rule[s]." Ibid. Administrative rules and regulations are not valid "unless adopted in substantial compliance" with the APA. N.J.S.A. 52:14B-4(d).

In this case, the proposed rules were published in the New Jersey Register, together with the statement required by N.J.S.A. 52:14B-4(a)(2), on July 16, 2007. 39 N.J.R. 2593-99. Pursuant to the published notice, any comments to the proposed rules had to be submitted to the Commission by no later than September 14, 2007.

In a letter from the Association to the Commission dated September 5, 2007, the Association's attorney stated there was "no lawful justification for compelling the drawing of blood without some probable cause or some reasonable basis," and there was "no need" for post-race gas testing because there was no proof "that the use of the bicarbonate milkshaking technique has a positive effect on the performance of thoroughbred race horses." The Association also requested a "full hearing" to "exchange information" with the Commission prior to the adoption of the proposed regulations, and it submitted form letters signed by members of the Association in support of the request for a hearing.

However, in a second letter dated September 14, 2007, the Association withdrew its opposition to the proposed regulations and the request for a public hearing:

It has been called to our attention that the Breeders' Cup organization has requested the adoption of these rules for the purpose of the upcoming Breeders' Cup races scheduled for October 26th and 27th, 2007 at Monmouth Park. The purpose of these rules is to ensure that the horses entered into the races are tamper free and that the Racing Commission has taken every possible step to ensure that fact. For the purposes of the remainder of this Thoroughbred racing year, [t]he New Jersey Thoroughbred Horsemen's Association hereby withdraws its opposition to the adoption of these rules and request for a hearing. In so doing, the New Jersey Thoroughbred Horsemen's Association reserves [its] right to challenge the enforcement and administration of both rules, procedurally and substantively, as being in violation of the Administrative Procedure Act, the Open Public Meetings Act, and the substantive needs of the thoroughbred racing industry in New Jersey.

After the comment period expired on September 14, 2007, the Commission considered the adoption of the proposed testing rules during a public meeting on September 17, 2007. During that meeting, the Commission responded to each of the comments it received regarding the proposed rules, including the concerns initially raised by the Association in its letter dated September 5, 2007. The Commission noted that "[t]he administration of foreign substances to a horse to enhance its racing performance strikes at the heart of the public's confidence in horse racing." In addition, the Commission's response to the Association's comments regarding out-of-competition testing included the following:

The NJTHA's comment that the Racing Commission's inability to test for Epogen post-race pursuant to its traditional post-race testing protocol, should not serve as a basis for unwarranted expansion of testing to non-race days is factually incorrect. The summary to the rule proposal clearly indicates that the Racing Commission has developed a direct testing strategy for Epogen. However, the Racing Commission believes Epogen administrations dosing are initiated during training many weeks in advance of race day, in an attempt to improve the red cell condition of the horse for race day. Considering the fact that the half life of this drug in blood is extremely short, this administration approach renders any race day test for Epogen ineffective. This is why the International Scientific Community endorses the concept of out-of-competition testing for blood doping products. . . .

Accordingly, the Racing Commission believes that the proposed rule through its absolute prohibition of such administrations to race horses at any time, and at any location, coupled with the ability of the Racing Commission to sample racehorses for the presence of such substances close to the administration and when most likely detectable, is necessary to capture and deter such administrations.

The Commission concluded there was no need for a "full hearing" prior to the adoption of the proposed regulations because the comments submitted by the Association and its members did not raise important issues that were not anticipated by the Commission. The Commission further noted the request for a public hearing was untimely because it was not made within thirty days after the proposed regulations were published, as required by N.J.S.A. 52:14B-4(a)(3), and, in any event, the Association had withdrawn its request for a hearing in its letter to the Commission dated September 14, 2007.

After responding to each of the comments it received, the Commission voted to adopt the proposed regulations, which became effective on October 15, 2007, when published in the New Jersey Register. 39 N.J.R. 4412; 39 N.J.R. 4415.

On appeal, the Association presents the following arguments:

POINT I

THE RULES IN QUESTION SHOULD BE VOIDED BECAUSE THE COMMISSION FAILED TO ENGAGE IN DISCUSSION OR DELIBERATION.

POINT II

THE RULES IN QUESTION SHOULD BE VOIDED BECAUSE THE COMMISSION ENGAGED IN SECRET DISCUSSIONS.

POINT III

THE RULES IN QUESTION SHOULD BE VOIDED BECAUSE THE COMMISSION HAS NO DEFINED PROCEDURES.

POINT IV

THE RULES IN QUESTION SHOULD BE VOIDED BECAUSE THE COMMISSION HAS NO RULES GOVERNING THE RIGHT TO A PUBLIC HEARING.

POINT V

THE RULES IN QUESTION SHOULD BE VOIDED BECAUSE THE COMMISSION HAS NO RULES GOVERNING THE EXTENSION OF COMMENT PERIODS FOR PROPOSED RULE-MAKING AND THE COMMISSION WRONGFULLY REFUSED TO ACCEPT ORAL SUBMISSIONS AND CONDUCT A PUBLIC HEARING.

POINT VI

THE RULES IN QUESTION SHOULD BE VOIDED BECAUSE THE COMMISSION COMMITTED LEGAL ERROR REGARDING [THE] PROPRIETY OF A SUNSET PROVISION.

POINT VII

THE COURT SHOULD GRANT MEANINGFUL AND EFFECTIVE RELIEF.

We conclude that these contentions do not warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). Nonetheless, we add the following comments.

In Point III, the Association argues the newly adopted rules should be invalidated because "the Commission has no defined procedures"; in Point IV the Association contends "the Commission has no rules governing the right to a public hearing"; and in Point V the Association claims "the Commission has no rules governing the extension of comment periods for proposed rule-making." These allegations are not supported by the record.

Pursuant to N.J.S.A. 52:14B-3(2), administrative agencies must "adopt rules of practice." These rules are important because they "provide notice of the agency's procedures to interested parties and assure that proceedings before the agency are conducted uniformally and fairly." N.J. Racing Comm'n v. Silverman, 303 N.J. Super. 293, 305 (App. Div. 1997).

In this case, the Commission is an agency within the Department of Law and Public Safety, N.J.A.C. 13:1E-1.2(g), and the Commission must comply with the Department's rules and procedures. N.J.A.C. 13:1E-4.1. Accordingly, the Commission's procedures for extending the comment period are codified at N.J.A.C. 13:1E-4.2, and the Commission's procedures for granting a public hearing are set forth in N.J.A.C. 13:1E-4.3. The Commission must hold a public hearing if "sufficient public interest in a public hearing is demonstrated within 30 days of the publication of the proposal in the New Jersey Register." N.J.A.C. 13:1E-4.3(a). Pursuant to N.J.A.C. 13:1E-4.3(b), "sufficient public interest" in a public hearing is shown when:

1. At least 50 persons submit written requests to hold a public hearing to present data, arguments or views that raise a substantial issue as to the impact of the proposal on the regulated community or the general public that has not been anticipated by the agency; and

2. No other public hearing on the proposal has been scheduled or held by the agency under this rule or other applicable law or rule.

[Ibid.]

Therefore, the Commission correctly applied the procedures adopted by the Department of Law and Public Safety when it denied the Association's request for a "full hearing," even though the request for a hearing had been withdrawn.

The Association also argues the Commission violated the OPMA by holding a "secret executive proceeding" on September 17, 2007. We do not agree. Our Legislature has declared "that the right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies, is vital to the enhancement and proper functioning of the democratic process. . . ." N.J.S.A. 10:4-7. Consequently, "the OPMA requires the members of a public body to deliberate and vote at a public meeting held after giving adequate notice to the public." In re Casino Simulcasting Special Fund, 398 N.J. Super. 7, 17 (App. Div. 2008). Moreover, "the stated statutory exemptions permitting closure must be strictly construed." Hartz Mountain Indus., Inc. v. NJSEA, 369 N.J. Super. 175 (App. Div.), certif. denied, 182 N.J. 147 (2004).

In the present matter, the transcript of the proceedings on September 17, 2007, confirms that the Commission voted to close a portion of the meeting to the public, as authorized by N.J.S.A. 10:4-12(b), for the limited purpose of obtaining legal advice regarding the proposed rules and another pending matter. Pursuant to N.J.S.A. 10:4-12(b)(7), a public body is authorized to discuss "anticipated litigation" in closed session, and, in view of the Association's opposition to the proposed rules, the Commission had a legitimate reason for anticipating litigation.

The Association contends, however, the Commission violated the OPMA "by discussing and deciding to adopt the [r]ules in question" while the Commission was in closed session. We reject this claim because there are no facts to support it. On the contrary, the transcript of the proceedings on September 17, 2007, demonstrates that the Commission carefully considered and responded to each of the comments and objections submitted during the comment period before voting to adopt the proposed rules. Accordingly, the Association has failed to establish that the Commission violated the OPMA when it went into closed session on September 17, 2007.

The Association also asserts the Commission "committed legal error" by refusing to consider its request for a "sunset provision." Again, we do not agree. The two letters from the Association to the Commission prior to the expiration of the comment period on September 14, 2007, neither referenced nor requested a sunset provision. However, on September 17, 2007, after the Commission had voted to adopt the new rules, the Association's attorney made an oral request for a sunset provision. Because the Association did not request a sunset provision during the sixty-day comment period, we conclude that the Commission was not legally obligated to respond to the belated request. N.J.S.A. 52:14B-4(a)(3).

The regulations adopted by the Commission are presumptively valid, Bergen Pines County Hosp. v. N.J. Dep't of Human Servs., 96 N.J. 456, 477 (1984), and the record does not support the claims by the Association that the Commission's rule-making practices and procedures were contrary to law. We therefore uphold the challenged regulations.

 
Affirmed.

Testing prior to race day is commonly known as "out-of-competition testing."

(continued)

(continued)

11

A-1274-07T3

December 4, 2009