New York Harness Horse Regulations Upheld

     ALBANY, N.Y. (CN) – New York has the authority to order the random off-track testing of harness horses, the state’s high court ruled Thursday.
     New York enacted the so-called out-of-competition testing rules in 2009 as another way to keep horse racing clean.
     Aimed at catching performance-enhancing drugs that might elude detection on race day, the regulations allow for the testing of harness horses up to six months ahead of a race.
     Harness horse owners and trainers and their trade group, the Standardbred Owners Association Inc., challenged the rules as exceeding the authority of the agency overseeing horse racing in the state. Those opponents also invoked the privacy rights of farm owners that stable horses miles from the tracks.
     Though the Albany County Supreme Court sided with the opponents in 2011, the Appellate Division reversed last year, finding the rules valid.
     This past August, amendments to the rules – partly in response to industry objections – mooted some of the opponents’ arguments.
     New York’s high court thus narrowed its review on appeal, looking only at “whether there are legal grounds for respondent’s promulgation of any rule mandating out-of-competition race horse testing, and whether a testing regimen of the sort proposed would of necessity involve constitutionally unreasonable intrusions by respondent’s agents.
     “To the former inquiry, we answer ‘yes,’ and to the latter, ‘no,'” Chief Judge Jonathan Lippman wrote for the unanimous court Thursday.
     He noted that the overseers of pari-mutuel horse racing in the state “have for decades” worked to police the sport, including testing horse blood and urine on race day for banned substances.
     The 2009 rules adopted by the state Racing and Wagering Board, now the New York State Gaming Commission, came as “a new generation of doping agents” surfaced, particularly protein-based drugs used to enhance speed, Lippman said.
     In an affidavit, a longtime state veterinarian said the new drugs could turn a lame horse into a competitor but remain undetected when administered ahead of race day. In addition to threatening the integrity of racing, jockey and horse are also at risk, the vet said.
     Although the horse owners and trainers argued that new race-day tests are capable of detecting the latest drugs, the Court of Appeals dismissed such measures as costly and unreliable in finding banned substance given months earlier.
     “The existence of tests of such uncertain general utility does not stand in the way of concluding that the relevant requirement of a rational basis for respondent’s determination to mandate out-of-competition testing was met,” Lippman wrote.
     New York is not alone in turning to out-of-competition rules, according to the ruling. Illinois, Indiana, Kentucky, New Jersey and New Mexico have similar regulations.
     New York’s out-of-competition rules apply to thoroughbred horses as well, but the owners did not challenge them in court.
     Lippman described the gaming commission’s legislatively outlined authority over horse racing and pari-mutuel wagering as “well nigh plenary,” dating back 40 years.
     The enabling legislation specified oversight of activities “both on and off-track,” he said.
     “Respondent’s power effectively to reach off-track activity, such as horse doping, bearing directly on the safety and integrity of pari-mutuel racing, seems to us unarguable,” the opinion states.
     As for the horsemen’s claim that off-track testing amounts to an unreasonable search of farms stabling horses, the court described this argument as “unavailing.”
     When farm owners sign such commercial agreements, “they may reasonably be deemed to have relinquished a privacy-based objection to the very closely circumscribed property intrusion that will foreseeably occur incident to an appropriately focused out-of-competition testing regimen,” Lippman wrote.
     The rules envision state veterinarians taking blood and urine samples from specifically identified harness horses. No residential or private space would be affected, and no attempt would be made to uncover criminal activity.
     “We do not think that such a visit, particularly when conducted in accordance within a duly constrained regulatory framework, will generally implicate a privacy interest triggering the requirement of a warrant or prior consent by the stable owner,” according to the ruling.
     Judges Susan Read, Robert Smith, Eugene Pigott, Jenny Rivera and Sheila Abdus-Salaam concurred. The term of former judge Victoria Graffeo ended last month, leaving the court with an open seat.

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