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ANOBILE v. PELLIGRINO
August 25, 1999
ANGELO ANOBILE, JOSEPH OMBONI, JR., MICHAEL FORTE, WARDELL WASHINGTON, RICHARD W. FULFREE, GEORGE P. FULFREE, AND ROBERT RAHNER, PLAINTIFFS,
FRANK PELLIGRINO, EDWARD J. MARTIN, MICHAEL HOBLOCK, BENNETT LIEBMAN, JOSEPH NEGLIA, JOEL LEVESON, AND THE NEW YORK STATE RACING AND WAGERING BOARD, DEFENDANTS.
The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs, Angelo Anobile, Joseph Omboni, Jr., Michael Forte,
Wardell Washington, Richard W. Fulfree, George P. Fulfree, and
Robert Rahner, originally commenced this action pursuant to
42 U.S.C. § 1983 and 1985 seeking interlocutory relief contending
that a December 9, 1997 search of the entire premises of the
Yonkers Raceway sanctioned by defendants for the purpose of
uncovering unauthorized drugs and drug paraphernalia that might
be administered to horses about to race at Yonkers violated
plaintiffs' Fourth, Fifth, and Fourteenth Amendment rights
guaranteed under the United States Constitution.
The trial on the merits was consolidated with the hearing on
the preliminary injunction, and the action was tried to this
Court on March 29, 30, and 31, 1999. On March 29, 1999, this
Court dismissed on the ground of sovereign immunity plaintiffs'
claims for money damages pursuant to 42 U.S.C. § 1983 or § 1985
against the New York State Racing and Wagering Board and its
members in their official capacities. On March 31, 1999, the
Court dismissed plaintiffs' 42 U.S.C. § 1983 claims against
defendants Frank Pelligrino, Edward J. Martin, Michael J.
Hoblock, Bennett Liebman, and Joseph P. Neglia, based on
qualified immunity grounds. The Court's findings of fact and
conclusions of law follow.
Plaintiff Angelo Anobile is a horse trainer licensed by the New
York State Racing and Wagering Board ("RWB" or "the Board"). He
has been continuously licensed by the RWB since the late 1960s or
early 1970s. On December 9, 1997, plaintiff Joseph Omboni, an
owner since the early 1970s, and a trainer for approximately the
past ten years held RWB licenses as an owner and a trainer.
Plaintiff Michael Forte has been continuously licensed by the RWB
as an owner, driver, or trainer from the early 1970s until 1999.
Plaintiff Wardell Washington has been continuously licensed by
the RWB as a groom for about thirty years. Plaintiff Robert
Rahner is presently licensed by the RWB as a trainer and driver.
He has been licensed as a trainer and driver since the early
1970s, and was also licensed as an owner around 1987.
Subsequently he ceased to be an owner and resumed his license as
just a trainer and a driver. Plaintiff Richard Fulfree, Esq., is
licensed by the RWB as an owner and trainer. His brother,
plaintiff George Fulfree has never been licensed by the RWB.
Section 301 of New York State's Racing, Pari-Mutuel Wagering
and Breeding Law provides, in part:
b. The state racing and wagering board shall
prescribe rules and regulations for effectually
preventing the use of improper devices, the
administration of drugs or stimulants or other
improper acts for the purpose of affecting the speed
of harness horses in races in which they are about to
N Y Racing, Pari-Mutuel Wagering and Breeding Law, 301(2)(b).
Section 902(1) of the Pari-Mutuel Wagering and Breeding Law
In order to assure the public's confidence and
continue the high degree of integrity in racing at
the pari-mutuel betting tracks, equine drug testing
at race meetings shall be conducted by a land grant
university within this state with a regents approved
veterinary college facility. The state racing and
wagering board shall promulgate any rules and
regulations necessary to implement the provisions of
this section, including administrative penalties of
loss of purse money, fines, or denial, suspension, or
revocation of a license of racing drugged horses.
N Y Racing, Pari-Mutuel Wagering and Breeding Law, § 902(1).
Acting under the auspices of New York's Pari-Mutuel Wagering
and Breeding Law, the RWB has promulgated a number of regulations
to maintain control over racing and its participants. One of its
primary concerns has been to prevent the use of performance
enhancing drugs on race horses. Section 4120.6 of the New York
Code of Rules and Regulations ("NYCRR") prohibits, except when in
the possession of a veterinarian, upon the premises of a licensed
harness race track:
(1) any equipment which may be used for hypodermic
injection or other infusion into a horse or any vial,
bottle, or cartridge designed and usable for such
(2) any controlled substance, listed in schedule I
through IV of the United States Code, title 21 (Food
and Drugs) section 812, or any drug which has not
been approved for use in the horse by the Federal
Food and Drug Administration. Not included in this
prohibition are liniments, antiseptics, ointments,
leg paints, washes and other products commonly used
in the daily care of horses.
(d) Each track is required to use all reasonable
efforts to prevent and detect violations of this
section. Each track, the board and the judges or
their designees shall have the right to enter into or
upon the buildings, stables, rooms, motor vehicles or
other places within the grounds of such track to
examine the same and to inspect and examine the
personal property and effects of any person within
such places; and every person who has been granted a
license by the board, by accepting his license, does
consent to such search including a personal search
and to the seizure of any drugs or hypodermic
syringes, hypodermic needles or other devices and if
the board shall find that any person has refused to
permit any such search or seizure it may impose such
punishment as may be appropriate.
NYCRR, §§ 4120.6(d) and 4120.6(e).
In order to obtain a New York State Racing License, an
applicant is required to sign a form that states, in part:
By the acceptance of a license issued pursuant to
this application, I waive my rights to object to any
search, within the grounds of a licensed racetrack or
racing association, of any premises which I occupy or
control or have the right to occupy or control and of
my personal property, including a personal search,
and the seizure of any article, the possession of
which may be forbidden within such grounds.
In order to work on the grounds of the racetrack, or to act as
an owner, trainer, driver, or groom, a RWB license was required.
Defendant Joel Leveson began working for the RWB, as a racing
investigator, in November 1995. At the time of trial, Leveson was
the Acting Director of Investigations, a position that he had
held for approximately one month on December 9, 1997. In that
capacity, he managed an approximately fifteen person staff,
scheduled their work, and generally oversaw compliance issues
with the Board.
Prior to the December 9, 1997 search, Leveson had conducted
searches of barns on the racetrack premises. In those searches,
he found equine drugs and syringes, tubes, funnels, and other
equipment used by horsemen to treat horses. Such materials
created, in Leveson's words, "a non-level playing field" in which
medicated horses performed better than they would otherwise.
Leveson also recalled isolated instances in which horses tested
positive for cocaine, and occasions when their handlers also
tested positive for illegal drugs. As Acting Director, it was his
responsibility to ensure that the races at Yonkers Raceway were
fair and free of the effects of prohibited substances.
Security at Yonkers Raceway was maintained by a special police
force of about thirty members, called peace officers, who had
powers similar to those of regular policemen. The police force
was employed by the Yonkers Racetrack, and was not employed by
the RWB. The Raceway was not routinely patrolled by either
Yonkers police officers or any other town or village Police
At some point before the planning of the search, Leveson
briefed Michael Hoblock, the RWB Chairman, and various members of
the Board on issues of security and other conditions at the
Raceway. Some time afterwards, Duke Dranichak, who at the time
was Chief of Racing Officials and Second Acting Director of
Investigations, ordered Leveson to undertake the December 9, 1997
search. Leveson then planned, formulated, and ultimately directed
Leveson intended to search all areas of the Yonkers Raceway.
This decision was based on his conclusions that there were
significant compliance problems at the Raceway, and he wanted to
determine their extent through what he termed a "compliance
audit." The problems included: the common use of equine drugs in
the stable and racing areas of the track, use of drugs by people
on Raceway property, the presence of unlicenced individuals on
the racetrack, security's failure to secure the barns properly or
to know who was in the barns, security's absence during off days
or at night when there was no racing and gates were unguarded,
and the existence of prostitution in the stable and dormitory
areas of the racetrack.