DARRAN CASSAR v. NEW JERSEY RACING COMMISSION -

NOT FOR PUBLICATION WITHOUT THE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
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                                                         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.
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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


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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.
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                                       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:

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            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.


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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.




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