12/06/2012 4:20PM

Enforcing drug penalties remains a problem

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TUCSON, Ariz. – Regulators and racetracks that seek harsh penalties against drug offenders continue to encounter obstacles to the enforcement of those penalties through a legal review process that is increasingly sympathetic to the rights of licensees, panelists at the University of Arizona Global Symposium on Racing and Gaming said on Thursday morning.

The panelists included Rick Goodell, the legal counsel to the New York State Racing and Wagering Board, which in the past year has imposed tough sanctions on two licensees; Vince Mares, the executive director of the embattled New Mexico Racing Commission, whose policies – or lack thereof – have come under intense scrutiny in the past year because of a series of articles in The New York Times examining breakdowns and drug use in racing; and Chris McErlean, the vice president of Racing for Penn National Gaming Inc., which has tracks in eight jurisdictions, including New Mexico and Pennsylvania.

Goodell said that racing’s public perception has suffered critical blows because of the ability of licensees to continue to train despite penalties levied by racing commissions. He was referring specifically to the case of Richard Dutrow Jr., the Thoroughbred trainer who was suspended for 10 years by the commission last year but continues to train as he exhausts his appeals through the last stages of the legal process.

Goodell said that many judges are largely unsympathetic to the arguments of regulators when balancing their concerns for the game against the licensee’s legal rights, especially when judges tend to be more concerned about state agencies running roughshod over a licensee’s ability to earn a living.

“Judges are frequently unfamiliar, and it’s hard to quantify, the damage done to racing of allowing an individual to continue to participate,” Goodell said.

McErlean said that Penn National has run into problems when trying to enforce evictions from its racetracks in both West Virginia and Pennsylvania. In the most recent instance, Penn evicted a trainer at its track in Pennsylvania after he was found with syringes in the stall of a horse that was entered to race that day. Through a series of challenges, the eviction has been thrown out. In the latest challenge, a judge said that Penn had worked with the state’s racing commission to enforce the eviction, which weakened the track’s argument that it was simply enforcing its legal property rights.

“Putting us in that state-action category opens up a whole new can of worms,” McErlean said. “The state-actor definition, taken to its extreme, means that me being on the same panel with a state racing commissioner here, I may have taken part in a state action. You can’t get around the fact that the state racing commission is involved in nearly every aspect of a racetrack’s operation.”

Mares outlined the steps he said that the New Mexico Racing Commission has taken to “improve and remake the image of New Mexico” after the state was targeted in an article by The New York Times, contending the state’s tracks had the worst safety record in the U.S. Following that article, a spate of Quarter Horses tested positive for the powerful painkiller dermorphin, deepening the crisis.

“We were, basically, a rogue state, for lack of a better term,” Mares said.

As a result, Mares went to the state to procure more resources for drug-testing and investigation, he said. In addition, the state handed down harsh penalties for the dermorphin positives – in most cases, five years for each positive test – while getting actively involved with the attorney general in attempting to deny the trainers’ requests to receive temporary restraining orders against the enforcement of the penalties while the trainers appealed.

Mares said that New Mexico still faces many problems in recovering from what he acknowledged was a lackadaisical approach to regulation, but he said the first priority was establishing a change in the racing culture. That has been difficult, he said, because of a thriving bush-track subculture in New Mexico where anything goes.

“Everyone has to believe that we’re not going to accept any cheaters in New Mexico,” Mares said.