12/29/2004 12:00AM

Gill files lawsuit vs. New York board


OZONE PARK, N.Y. - Michael Gill, the leading owner in the country in wins and purse money, has sued the New York State Racing and Wagering Board, seeking to annul the medication positives for two horses he ran at Saratoga last August.

The suit, filed in State Supreme Court in New York City, claims that the promulgation and enforcement of an emergency rule put in place by the board that led to the positive findings is unlawful, arbitrary, and capricious, and an abuse of discretion.

The suit, which also names the trainer Mark Shuman as a petitioner, seeks an unspecified amount of incidental financial damages.

Clay's Rocket, who won the second race at Saratoga on Aug. 9, and Kalookan Lady, who finished fourth in the fifth race on Aug. 9, both tested positive for fluphenazine, a tranquilizer. The stewards disqualified those horses, both trained by Shuman, from purse money, which totaled $24,350. But in accordance with the way the rule is written, the stewards did not impose any penalties against Shuman. Scott Lake's claim of Kalookan Lady was voided and the horse was returned to Shuman.

The board adopted an emergency rule regarding the administration of fluphenazine and reserpine on Oct. 30, 2003, and has readopted the rule on an emergency basis five times since then, most recently on Nov. 2. The rule also sits before the Governor's Office of Regulatory Reform to be enacted as a permanent rule.

The suit, filed by attorney Karen Murphy, claims that the manner in which the rule was promulgated violated the State Administrative Procedure Act and therefore should be declared unlawful.

Murphy contends the board failed to show that the immediate adoption of this rule was necessary or that compliance with regular rule-making procedures would be contrary to the public interest.

One of the problems in monitoring the use of fluphenazine is in determining how far out from a race it can be given. In the case of Kalookan Lady, who was retested as a prerequisite to being allowed to race again in New York State, the drug stayed in the horse's system for 55 days.

"It's a separate rule from our other medication rules because of the fact the science behind it is such they can't determine when it can be administered," said Stacy Clifford, a spokesperson for the board.