Rule Allowing Testing of Horses for Speed-Enhancing Drugs at Times Other than Just Before a Race Is a Valid Exercise of Racing & Wagering Board’s Authority

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that the NYS Racing & Wagering Board did not exceed its authority when it promulgated rules allowing testing horses for the presence of speed-enhancing drugs at times other than immediately preceding a race:

While it is true that an administrative agency within the executive branch may not under the guise of rule-making engage in basic policy determinations reserved to the Legislature …, it is also true that the Legislature “has considerable latitude in determining the reasonable and practicable point of generality in adopting a standard for administrative action and, thus, [that] a reasonable amount of discretion may be delegated to . . . administrative officials” … . Here, the Legislature, in drafting Racing Law § 301 (2), was at pains to be explicit that that subsection was not to be construed as a limitation upon respondent's powers “to supervise generally all harness race meetings in this state at which pari-mutuel betting is conducted” and in that connection to “adopt rules and regulations . . . to carry into effect its [respondent's] purposes and provisions and to prevent circumvention or evasion thereof” (Racing Law § 301 [1]). Thus, not only does section 301 when read in its entirety make plain that the Legislature had no purpose of restricting respondent's general supervisory power over pari-mutuel harness race meetings, but it specifically authorizes regulatory action to prevent the circumvention or evasion of existing rules, necessarily including those whose object, sensibly understood, is “effectually” to prevent horses from racing under the influence of speed-enhancing doping agents. Out-of-competition drug testing, which, as noted, has as its raison d'etre the plugging of a loophole created in the pre-existing regulatory regimen by the introduction of doping agents capable of affecting competitive performance while eluding race day detection, is precisely the sort of measure contemplated by section 301 (1). As for section 902 (1), it too has no apparent limiting purpose — its designation of a laboratory to perform equine drug testing at race meetings does not reasonably signify that such testing may be required by respondent only at race meetings. Matter of Ford v NYS Racing & Wagering Board, 2014 NY Slip Op 08870, CtApp 12-18-14