Horse Drug-Testing Rules Revived in New York

     ALBANY, N.Y. (CN) – New York can perform off-track drug tests of harness racehorses, an appeals court ruled, reviving the regulation that a judge annulled in 2011.
     The New York State Racing and Wagering Board adopted the so-called out-of-competition testing rules in late 2009 as another way to keep racing clean. The regulations allow harness horses to be tested well in advance of race dates.
     Regulations already require pre- and post-race drug testing at New York’s seven harness tracks, but the new rules sought to catch off-site doping months earlier that could fade by post time.
     A handful of trainers and owners, as well as the Standardbred Owners Association Inc., a horsemen’s group, challenged the new rules in early 2010, arguing they were unconstitutional and that the Racing and Wagering Board had overstepped its bounds.
     Acting Justice Mark Powers of the Schenectady County Supreme Court agreed in August 2011.
     The rules “stretch beyond the board’s enabling legislation” and encroach on “inherently legislative action,” according to the ruling.
     Finding the rules “illegal, null and void,” Powers barred the board from enforcing them. Rather than remand the issue, though, Powers offered his own point-by-point criticism in a 23-page decision, “in an effort to guide the parties” toward “permissible regulations.”
     That gave the board an opening to appeal, which it did. On Thursday, the Appellate Division reversed.
     Considering the plain language of state law and the board’s broad power to regulate the harness industry, the board “did not exceed its statutory authority when it adopted regulations permitting off-track, out-of-competition drug testing,” Justice William McCarthy wrote for the Albany-based Third Judicial Department.
     Though Powers had found it arbitrary and capricious for the board to set a six-month testing window on racehorses, the appellate court’s four-justice panel noted that other racing states had longer windows or no time limits at all for such testing.
     The justices said the same of the requirement for licensed owners or trainers to bring in for testing a horse stabled out-of-state within 100 miles of a New York track.
     It furthermore is neither arbitrary nor unreasonable for New York to impose a 10-year suspension as the minimum penalty for a trainer with a doped horse, the court found.
     “A 10-year suspension, while lengthy, is not so disproportionate to the offense as to shock the conscience; respondent purposely included a lengthy suspension to deter serious violations that could compromise the integrity of horse racing as well as endanger both human and equine competitors,” McCarthy wrote.
     The justices also said the new rules did not infringe on the legal rights of farm owners whose private property might be accessed for testing because they lease space to trainers.
     “Horse farm owners who lease property on which racehorses are kept have a reduced expectation of privacy due to the fact that horse racing is a highly regulated industry,” McCarthy wrote.
     Powers did correctly find, however, that it would be inconsistent for New York to ban protein- and peptide-based drugs, when those drugs are allowed as recognized treatments for horses in certain circumstances, according to the ruling.
     Although Powers said it was vague to prohibit specific blood-doping substances and gene-doping agents to enhance performance, the appellate panel concluded that the list was “not so vague as to require annulment of the regulation.”
     They still pointed out, however, that barring “protein and peptide-based drugs, including toxins and venoms” conflicted with other regulations that allow them “during certain time frames prior to races.”
     As a result, the justices upheld Powers’ finding of the inconsistency.
     Joining McCarthy in the opinion were Justices Robert Rose, Edward Spain and John Egan.
     Assistant Attorney General Kathleen Arnold argued for the state. The horsemen, led by Mark Ford, were represented by Andrew Turro of Meyer, Suozzi, English & Klein in Garden City.

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