MURRAY BASSEN v. NEW JERSEY RACING COMMISSION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-03820-11T1

MURRAY BASSEN,

Petitioner-Appellant,

v.

NEW JERSEY RACING COMMISSION,

Respondent-Respondent.

___________________________________

December 8, 2014

Submitted February 12, 2014 Decided

Before Judges Waugh and Nugent.

On appeal from the New Jersey Racing Commission, Ruling No. 12TRH2.

Murray Bassen, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Julie Dianne Barnes, Deputy Attorney General, on the brief).

The opinion of the court was delivered by

NUGENT, J.A.D.

Petitioner Murray Bassen, a horse trainer, appeals from the New Jersey Racing Commission's final decision suspending his license for eight months and fining him $5000. We affirm.

Two New Jersey Racing Commission rules provide that "[n]o horse may start in any race wherein pari-mutuel wagering is conducted unless stabled on the grounds of a racing association . . . or at a farm or training facility licensed by the Commission[,]" N.J.A.C. 13:71-7.26(a), and that "[a]ny horse in training or entered to start stabled on such a farm or training center must be under the care and custody of a licensed trainer." N.J.A.C. 13:71-7.26(d). The latter rule provides explicitly that "[i]t shall be the responsibility of the trainer to insure that only individuals licensed by the Commission are employed in any capacity of caretaker, groom or other attendant with respect to the care-custody and training of such a horse." Id.

During a two-month period in 2003, Bassen was the trainer of three horses owned by Eric Kellerman that were racing at the Meadowlands. When not racing, the horses "were sent to a turnout farm" named Batsto Farm located near Hammonton. The farm was not licensed by the Racing Commission and its two caretakers were unlicensed at the time, both of their licenses having been suspended. The woman who transported the three horses between the farm and the Meadowlands for races was employed by Kellerman, took instructions from the two Batsto Farm caretakers whose licenses were suspended, called Bassen upon her arrival with the horses at the Meadowlands, and delivered the race horses back to Batsto Farm after they raced.

Following a hearing in August 2004, the Meadowlands Board of Judges (Board) ruled that Bassen had violated the foregoing Racing Commission rules, suspended his license for ten days, and fined him $500. Although Bassen disputed the Board's ruling, he accepted it and wrote a check for $500. The Racing Commission, however, upon review of the sanctions, determined that Bassen had violated at least three rules in addition to those identified by the Board, suspended Bassen's license for one year, and fined him $5000. Bassen filed an appeal and the matter was transmitted to the Office of Administrative Law (OAL) as a contested case and tried before an Administrative Law Judge (ALJ).

The parties entered into eleven stipulations at the OAL hearing. Bassen stipulated that during the two-month period at issue, the three horses owned by Kellerman were racing at the Meadowlands, they were sent to an unlicensed "turnout" farm when not racing, and the farm's caretakers were unlicensed. The parties also stipulated that while at the farm, the horses were not trained; rather, they were "let out to run in the fields."

Bassen testified and explained that the horses were "turned out" at Batsto Farm on the recommendations of three veterinarians, two of whom were "track veterinarians in the Meadowlands," who felt that due to certain enzyme blood levels in the horses, they needed to have more outside exercise rather than being locked in stalls at the racetrack. Bassen also explained that at Batsto Farm, the horses would be turned out, that is, they would be released in areas where they could run around, eat grass, and exercise. Bassen claimed that he "had no knowledge of any licensing requirements on turning out horses," and that Kellerman had made the decision to turn them out at Batsto Farm. Bassen assumed that Kellerman, "being the owner and the person who brought [the horses] there, if there was any responsibilities I would think he would have investigated it, but to my knowledge I knew nothing about any licensing training facilities."

The Racing Commission presented the testimony of Joseph R. Puzo, an assistant director in charge of the Commission's investigating unit. Puzo testified that the Commission had enhanced the Board's original penalties because of the serious nature of the rule violations. He explained that by turning out horses at an unlicensed farm not owned by the person who owned the horses, the public had been misled because the racing programs contained inaccurate information. He also cited "incidents in the past similar to this one where the individuals were given a much stiffer suspension, more in line with the offense." Puzo explained that in this case, the Racing Commission recognized that the Board had "basically erred and should have given a must stiffer suspension."

The ALJ found that Bassen had violated N.J.A.C. 13:71-7.26(a) and (d) and recommended that Bassen's license be suspended for four months and that he be fined $5000.

The Racing Commission did not adopt the ALJ's recommendation concerning the penalties. Rather, the Commission remanded the matter to the ALJ and directed the ALJ to consider each of the violations the Racing Commission had cited when it originally increased the penalties the Board had imposed. The Racing Commission's remand order stated

On remand, the ALJ shall accept evidence and reach determinations on all of the alleged violations transmitted by the Commission. The transmittal sheet clearly states that the nature of the case is a one-year suspension and $5000 fine on trainer Murray Bassen for violation of N.J.A.C. 13:71-2.2, N.J.A.C. 13:71-1.19, N.J.A.C. 13:71-7.26(a), N.J.A.C. 13:71-7.26(d), N.J.A.C. 13:71-7.29(a)13, N.J.A.C. 13:71-72.9(a)14, N.J.A.C. 13:71-26.3 and N.J.A.C. 13:71-26.5. In the Initial Decision, the ALJ clearly indicated that he did not consider any of the violations other than N.J.A.C. 13:71.-7.26 and his conclusions are limited to violation of this one rule. The ALJ shall also accept evidence and reach a determination on penalty that reflects all rule violations.

On remand, the ALJ did not conduct an evidentiary hearing. His decision noted that "[n]o one appeared for the petitioner." The ALJ determined that Bassen had violated most of the substantive provisions cited by the Racing Commission in its remand order. The ALJ explained in its written decision

The additional regulatory references that I have now considered are somewhat akin to what would be considered lesser included offenses, in a criminal setting. However, the Racing Commission was within its purview to have them included in my ultimate determination of penalty in this matter. I am still, nonetheless concerned with the disparity between the penalty assessed by the Commission and that imposed by the Meadowlands Board of Judges. The thirty[-] six fold increase in the suspension period is still unjustified to my mind. Thus I CONCLUDE that the appropriate suspension should be for a period of 8 months. I have previously upheld the $5000.00 fine.

The Racing Commission accepted the ALJ's recommendation and upheld the $5000 fine and eight-month license suspension. In its decision, the Racing Commission noted that following the ALJ's decision on remand, the Racing Commission had denied Bassen's request "to remand the matter to the OAL for a new hearing." Bassen appealed from the Racing Commission's final decision.

Our review of final administrative agency decisions, such as the Racing Commission's here, is limited. In re Stallworth, 208 N.J. 182, 194 (2011). Agency decisions are presumed to be reasonable. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). We generally defer to an agency's decision and will not reverse it unless the decision is arbitrary, capricious, or unreasonable. N.J. SPCA v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008). A decision is arbitrary, capricious, or unreasonable if it does not conform to relevant law or is not supported by substantial credible evidence in the record, or if the agency has misapplied the law to the facts in the record. Stallworth, supra, 208 N.J. at 194.

Our deferential standard of review applies to final decisions of the Racing Commission. As we have explained,

our role in reviewing the Commission's findings in a case of this kind is to determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . and . . . with due regard also to the agency's expertise where such expertise is a pertinent factor."

[De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489 (App. Div.) (quoting Mayflower Secs. v. Bureau of Secs., 64 N.J. 85, 92-93 (1973)) certif. denied, 102 N.J. 337 (1985).]

Significantly, our deferential standard of review "applies to the review of disciplinary sanctions as well." In re Herrmann, 192 N.J. 19, 28 (2007). "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 shocking to one's sense of fairness." Id. at 28-29 (alteration in original) (internal quotation marks omitted) (citing In re Polk, 90 N.J. 550, 578 (1982)). "The threshold of 'shocking' the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result." Id. at 29.

The ALJ's findings following the initial hearing were reasonably reached on sufficient credible evidence present in the record. De Vitis, supra, 202 N.J. Super. at 489; R. 2:11-3(e)(1)(D). Bassen now proposes to present evidence that contradicts the facts upon which the ALJ based his decision, including facts to which the parties had stipulated at the initial OAL hearing.

Bassen argues, implicitly, that the attorney who represented him during the initial ALJ hearing was ineffective because he stipulated to certain facts that were untrue and failed to insist that certain witnesses appear in person. Bassen argues explicitly that the attorney he paid to represent him at the remand hearing was ineffective.

Bassen claims that during the initial hearing before the ALJ, his attorney and the Deputy Attorney General (DAG) "felt that a lot of contemplated testimony and time could be saved." For that reason, they made stipulations which he now disputes. They also decided not to have certain witnesses testify. When Bassen expressed his disbelief, his attorney told him "to 'shut-up' and only answer questions when asked by the Judge or the DAG[.]" Bassen now disputes the legal relevance of the stipulation that the Batsto Farm was unlicensed and that its caretakers' licenses were suspended. He disputes the factual accuracy of the stipulation that the woman who transported the horses to and from the Meadowlands Racetrack was licensed. And he now claims that the Batsto Farm's owner was actually the owner of the horses Bassen was "turning out" between races and therefore, the farm did not need to be licensed.

An attorney's ineffective assistance can be a ground for a new trial in cases where the assistance of counsel is guaranteed by the federal constitution, the state constitution, or a statute. For example, the Sixth Amendment guarantees to a person accused of crimes the right to effective assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). And a parent facing a State action to terminate his or her parental rights is assured the right to counsel by the due process guarantee of Article I, paragraph 1 of the New Jersey Constitution, N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J.301, 305-06 (2007), as well as by statute, N.J.S.A. 30:4C-15.4(a). "In short, the right to counsel in a termination case has constitutional as well as statutory bases. Either way, the performance of that counsel must be effective." B.R., supra, 192 N.J. at 306.

In contrast to criminal prosecutions and actions to terminate parental rights, Bassen was not guaranteed, by the federal or state constitution or by statute, the right to counsel in the administrative proceedings before the ALJ and the Racing Commission. Nor does he contend that he was. But he argues that he should be entitled to a new hearing because his first counsel stipulated to facts that he, Bassen, now disputes, and because his other attorney did not appear at the remand hearing where he should have been afforded the opportunity to present such evidence. If Bassen's accusations about his attorneys are true, and his attorneys deviated from a minimum standard of care in presenting his case, his recourse is a civil malpractice action, not a new hearing.1

We also note that after the ALJ issued his remand decision, Bassen retained his original counsel who wrote to the Racing Commission and requested a new hearing because "new evidence [had] been uncovered." The Racing Commission rejected counsel's request because the information identified by Bassen's counsel in his letter requesting a new hearing was "irrelevant to the violations that . . . Bassen has been found to have violated." There is no basis in this record to conclude that the Racing Commission abused its discretion by denying Bassen's request for another hearing.

Lastly, Bassen argues that the sanction imposed by the Racing Commission was disproportionate to the alleged rule violations and significantly different, both in fact and in degree, from other cases cited by the Racing Commission to support its decision. In view of Puzo's testimony concerning the serious nature of the rule violations and the need to ensure the integrity of a regulated sport involving public wagering, we cannot conclude that the Racing Commission's sanctions were so disproportionate to the rule violation, in light of all the circumstances, as to be shocking to one's sense of fairness. Herrmann, supra, 192 N.J. at 28-29.

Affirmed.

1 The attorneys may also be subject to discipline. Indeed, one of the attorneys has been suspended recently, but the report of his suspension does not reference this case.