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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,
v.
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.

FINDINGS OF FACT

Parties

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.

The Search

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
  participate.

N Y Racing, Pari-Mutuel Wagering and Breeding Law, 301(2)(b).

Section 902(1) of the Pari-Mutuel Wagering and Breeding Law provides:

  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
  purposes; or
  (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.

NYCRR, § 4120.6(a).

17. The NYCRR provides:

  (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 Department.

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 the search.

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.

Leveson knew that of all the RWB racetracks, Yonkers Raceway had one of the highest number of post-race positive tests for drugs, a result exacerbated, in his judgment, by the fact that pre-race testing of horses, which he felt enhanced the integrity of racing, had been eliminated. Leveson thus planned to search every barn, dormitory, vehicle, and individual on Raceway property that day. ...


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