In the Matter of Mark Ford, et al., Appellants,v.New York State Racing and Wagering Board, Respondent.BriefN.Y.November 19, 2014APL-2013-00325 To be argued by: KATHLEEN M. ARNOLD Time requested: 20 minutes Appellate Division Third Department Number 514622 ~ourt of ~ppeals of tbe $>tate of jf!etu ~ork IN THE MATTER OF THE APPLICATION OF MARK FORD, RICHARD BANCA, JOHN BRENNAN, GEORGE CASALE, AND STANDARDBRED OWNERS ASSOCIATION, INC., Petitioners- Appellants, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -AGAINST- THE NEW YORK STATE RACING & WAGERING BOARD, Respondent. BRIEF FOR RESPONDENT BARBARA D. UNDERWOOD Solicitor General ANDREWD. BING Deputy Solicitor General KATHLEEN M. ARNOLD Assistant Solicitor General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent The Capitol, Albany, New York 12224 Telephone (518) 474-3654 Facsimile (518) 4 73-8963 OAG No. 10-106372 Dated: March 31, 2014 Reproduced on Recycled Paper TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ......................................................................................... iii PRELIMINARY STATEMENT ..................................................................................... 1 QUESTIONS PRESENTED .......................................................................................... 4 STATUTES AT ISSUE AND THEIR HISTORY .......................................................... 5 A. The Board's Statutory Authority Over Drug Testing Has Been Broad Since Its Inception .............................................................................. 5 B. Racing Law § 902(1) and Its Predecessor Have Never Limited the Board's Authority to Conduct Equine Drug Testing ........................... 10 C. Enactment of the Racing Law Continued the Broad Authority to Regulate .................................................................................................. 12 THE OUT-OF-COMPETITION TESTING REGULATION ....................................... 13 A. The 1982 Regulation .................................................................................... 13 B. The Present Rulemaking ............................................................................. 14 THE PROCEEDINGS BELOW ................................................................................... 18 A. Supreme Court Proceedings and Judgment ............................................... 18 B. The Appellate Division's Decision ............................................................... 20 ARGUMENT THE OUT-OF-COMPETITION TESTING REGULATION IS VALID ........... 23 POINT I THE RACING LAW AUTHORIZES THE BOARD TO ADOPT THE OUT-OF-COMPETITION TESTING REGULATION ............................ 26 1 Table Of Contents (cont'd) POINT II THE REGULATION DOES NOT VIOLATE THE RIGHT OF LICENSEES OR NON-LICENSED ENTITIES TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES ....................................... 35 A. The regulatory scheme satisfies the constitutional criteria for warrantless administrative searches ...................................... 37 B. The regulation also satisfies the "special needs" exception to the warrant requirement .......................................... 4 7 POINT III THE CHALLENGED PROVISIONS OF THE OUT-OF- COMPETITION TESTING REGULATION ARE RATIONAL AND SHOULD BE UPHELD ........................................................................ 49 A. The regulation is rationally related to the legitimate purposes for which it was adopted ................................................ 50 B. Testing harness race horses within 180 days of racing is rational ........................................................................................... 51 C. The out-of-state 100-mile provision is rational.. ........................... 55 D. The terms of the regulations do not subject non-licensee farm owners and training facilities to the cooperation requirement, but the Racing Law would authorize the Board to do so ................................................................................. 57 E. Petitioners' challenge to the penalty for a positive drug test is inappropriate in this facial challenge and, in any event, the penalty is not excessive ........................................................... 59 CONCLUSION .......................................................................................................... 63 ADDENDUM OF RELEVANT STATUTES ....................................................... ARSl 11 TABLE OF AUTHORITIES CASES PAGE Anobile v. Pelligrino, 303 F.3d 107 (2d Cir. 2001) ............................................................................... 37 Bd. of Educ. v. Earls, 536 U.S. 822 (2002) ........................................................................................... 48 Bingham v. New York City Transit Auth., 99 N.Y.2d 355 (2003) ...................................................................................... 4 7n Bokman, Matter of v. N. Y.S Racing & Wagering Bd., 77 A.D.2d 459 (4th Dep't 1980), modified on other grounds, 66 N.Y.2d 786 (1985) ......................................................................................... 28 Boreali v. Alexrod, 71 N.Y.2d 1 (1987) ............................................................................................. 28 Casse, Matter of v. N. Y.S. Racing & Wagering Bd., 70 N.Y.2d 589 (1987) .................................................................................... 29,33 Cohen v. State of N. Y., 94 N.Y.2d 1 (1999) ................................................................................... 25,43,44 Consolation Nursing Home v. Commissioner of N. Y.S. Dep't of Health, 85 N.Y.2d 326 (1995) ......................................................................................... 50 Dep't of Taxation & Finance of N. Y. v. Milhelm Attea & Bros., 512 U.S. 61 (1994) ............................................................................................. 25 Dimeo v. Griffin, 943 F.2d 679 (7th Cir. 1991) .......................................................................... 37,47 Donovan v. Dewey, 452 U.S. 594 (1981) ........................................................................................... 40 Dougherty, Matter of v. State Harness Racing Comm 'n, 286 A.D. 837 (1st Dep't 1955), aff'd, 309 N.Y. 992 (1956) ................................ 59 Equine Practitioners Ass'n, Inc. v. N. Y.S. Racing & Wagering Bd., 105 A.D.2d 215 (1st Dep't 1984) ......................................................... 28,31,50,51 111 TABLE OF AUTHORITIES (cont'd) CASES (cont'd) PAGE Ford, Matter of v. New York State Racing and Wagering Bd., 107 A.D.3d 1071 (3d Dep't 2013) ...................................................................... 20 General Electric Cap. Corp. v. N. Y.S. Div. of Tax Appeals, 2 N.Y.3d 249 (2004) ........................................................................................... 26 Gill, Matter of v. N. Y.S. Racing & Wagering Bd., 11 Misc. 3d 1068(A), at ***9 (New York Co. Sup. Ct. 2006), modified on other grounds, 50 A.D.3d 494 (1st Dep't 2008) ............................. 29 KSLM-Columbus Apts., Inc., Matter of v. New York State Div. of Hous. & Community Renewal, 5 N.Y.3d 303 (2005) ........................................................................................... 27 Kuppersmith v. Dowling, 93 N.Y.2d 90 (1999) ........................................................................................... 49 Kurcsics v. Merchants Mut. Ins. Co., 49 N.Y.2d 451 (1980) ......................................................................................... 27 Lamar Cent. Outdoor, LLC, Matter of v. State, 64 A.D.3d 944 (3d Dep't 2009) .......................................................................... 34 Laterza, Matter of v. N. Y.S. Racing & Wagering Bd., 68 A.D.3d 1509 (3d Dep't 2009) ........................................................................ 54 Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32 (1928) ............................................................................................. 56 Lynch v. City of New York, 589 F.3d 94 (2d Cir. 2009) ............................................................................ 36,47 New York v. Burger, 482 U.S. 691 (1987) ....................................................................... 36,37,38,39,42 New York State Assn. of Counties v. Axelrod, 78 N.Y.2d 158 (1991) ......................................................................................... 49 lV TABLE OF AUTHORITIES (cont'd) CASES (cont'd) PAGE Nicholas, Matter of v. Kahn, 47 N.Y.2d 24 (1979) ........................................................................................... 26 Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502 (1990) ........................................................................................... 25 Palmieri v. Lynch, 392 F.3d 73 (2d Cir. 2004) ................................................................................ .48 Pell, Matter of v. Board of Educ., 34 N.Y.2d 222 (1974) ......................................................................................... 60 People v. Cosme, 48 N.Y.2d 286 (1975) ...................................................................................... 45n People v. Quackenbush, 88 N.Y.2d 534 (1996) ..................................................................... 36,37,38,39,42 People v. Scott, 79 N.Y.2d 474 (1992) ......................................................................................... 39 People v. Stuart, 100 N.Y.2d 412 (2003) ....................................................................................... 25 Richardson v. Fiedler Roofing Co., 67 N.Y.2d 246 (1986) ...................................................................................... 47n S&J Pharmacies, Inc., Matter of v. Axelrod, 91A.D.2d1131 (3d Dep't 1983) ........................................................................ 60 Shuman, Matter of v. N. Y.S. Racing & Wagering Bd., 40 A.D.3d 385 (lst Dep't 2007) .......................................................................... 51 Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) ........................................................................................... 48 Spinelli v. City of New York, 579 F.3d 160 (2d Cir. 2009) ......................................................................... .42,43 v TABLE OF AUTHORITIES (cont'd) CASES (cont'd) PAGE Sullivan County Harness Racing Ass'n, Matter of v. Glasser, 30 N.Y.2d 269 (1972) ......................................................................................... 28 Sumner v. Hogan, 73 A.D.3d 618 (1st Dep't 2010), reversing, 2008 N.Y. Misc. LEXIS 10816 (Sup. Ct. N.Y. Co. 2008) .................................. 62 Swint v. City of Wadley, Alabama, 51 F.3d 988 (11th Cir. 1995) .............................................................................. .44 United States v. Biswell, 406 U.S. 311 (1972) ........................................................................................... 40 Yolanda D., Matter of, 88 N.Y.2d 790 (1996) ......................................................................................... 34 NEW YORK CONSTITUTION Article I, § 12 ............................................................................................................. 4,35 STATE STATUTES C.P.L.R. article 78 ......................................................................................................... 1, 18 3002 ................................................................................................................. 18 L. 1895, ch. 520, § 5 ........................................................................................................ 6 L. 1926, ch. 440, § 6 ........................................................................................................ 6 L. 1934, ch. 310, § 3 ........................................................................................................ 7 L. 1940, ch. 254 § 1 ................................................................................................................... 7 § 25 ................................................................................................................. 10 § 36 ................................................................................................................... 7 L. 1953, ch. 391, § 1 .................. : ..................................................................................... 7 Vl TABLE OF AUTHORITIES (cont'd) STATE STATUTES (cont'd) PAGE L. 1954, ch. 5, § 2 ............................................................................................................ 8 L. 1973, ch. 346 § 3 ................................................................................................................... 9 § 201 ................................................................................................................... 9 L. 1977, ch. 267, § 6 ...................................................................................................... 10 L. 1982, ch. 865 ............................................................................................................. 12 L. 1993, ch. 60, § 3 ........................................................................................................ 12 L. 2010, ch. 15 ............................................................................................................... 13 L. 2012, ch. 60, § 1 (Part A) ................................................................................... ln,5n Racing, Pari-Mutuel Wagering and Breeding Law § 35 ................................................................................................................... 7 § 36 ........................................................................................................... 7,8,12 § 36(1) ................................................................................................................... 7 § 36(2)(b) .............................................................................................................. 8 § 49 ............................................................................................................ 11,12 § 101 ................................................................................................. 5n, 12,20,30 § 101(1) ....................................................................................................... passim § 102 ................................................................................................................ ln § 103(d) .............................................................................................................. 5n § 104(1) .............................................................................................................. 5n § 104(4) .............................................................................................................. 5n § 104(19) ............................................................................................................ 5n § 122 ................................................................................................................ ln § 125 ................................................................................................................ ln § 201 ................................................................................................................. 12 § 301 .................................................................................................... 8, 12,20,30 § 301(1) ....................................................................................................... passim § 301(2) ....................................................................................................... passim § 301(2)(a) .................................................................................................. passim § 310 ................................................................................................................. 58 Vll TABLE OF AUTHORITIES (cont'd) STATE STATUTES (cont'd) PAGE Racing Pari-Mutuel Wagering and Breeding Law (cont'd) § 323 ................................................................................................................. 12 § 902 ......................................................................................................... 5, 12, 13 § 902(1) ....................................................................................................... passim § 902(2) ............................................................................................................... 13 STATE RULES AND REGULATIONS 9 N.Y.C.R.R. Part 4120 ............................................................................................................ 13 § 4043.12 ........................................................................................................... 2n § 4113.5 .............................................................................................................. 53 § 4120.2 .............................................................................................................. 23 § 4120.2(b)-(g) .................................................................................................... 14 § 4120.2(h) .......................................................................................................... 14 § 4120.17 .................................................................................................... passim § 4120. l 7(a) .............................................................................................. 41,42,52 § 4120.l 7(b) .............................................................................................. 42,51,52 § 4120.17(c) ........................................................................................................ 55 § 4120.17(d) ........................................................................................................ 42 § 4120. l 7(e)(3) .............................................................................................. 4n,23 § 4120.17(£) ...................................................................................................... 57n § 4120.17(g) ...................................................................................... 42,43,57,58n § 4120. l 7(i) ................................................................................................. 57n,59 § 4120.17(j) ......................................................................................................... 46 UNITED STATES CONSTITUTION Fourth Amendment ................................................................................................... 4,35 MISCELLANEOUS 12 Official Supplement to N.Y.C.R.R. (1959), p. 989, SHRC Rule 21 (d)(l, 4), filed June 6, 1956 ......................................................... 9 Vlll TABLE OF AUTHORITIES (cont'd) MISCELLANEOUS PAGE 1935 SRC Annual Report, pp. 39-40 ............................................................................ 10 1951 SRC Annual Report, p. 15 ................................................................................... 11 1977 Annual Report, N.Y.S. Racing & Wagering Bd., p. 1. ........................................ 31 ARCI model rule 025-022 ..................................................................................... 53n,55 Bill Jacket, L. 1993, ch. 60, pp. 6, 12 ........................................................................... 13 Governor's Memorandum, reprinted in 1973 N. Y.S. Legislative Annual 58 ............................................................................................................. 9 11 I.L.A.D.C. § 603.200(a) (Illinois) ............................................................................. 55 71 I.A.C. 8-3-5(a), (e) (Indiana) .................................................................................... 55 810 KAR 1:110(3)(1) (Kentucky) .......................................................................... 53n,55 N.J.A.C. § 13.70-14A.13(b) (New Jersey) ............................................................ 53n,55 N.M.A.C. 15.2.6.9 (New Mexico) ................................................................................. 55 SHRC Rule Amendment filed with Department of State on July 1, 1955, p. 65, Rule 21 § 4 ........................................................................... 8 Sponsor's Mem., Bill Jacket, L. 2010, ch. 15 ............................................................... 13 State of New York Executive Budget for the Fiscal Year April 1, 1976 to March 31, 1977, p. 404 ....................................................... 11,31 IX PRELIMINARY STATEMENT The New York State Racing and Wagering Board (the "Board")1 has broad general jurisdiction over all horse racing activities in the State and over the persons engaged in those activities, including owners and trainers of harness race horses. The Legislature has long directed the Board to ensure the health and safety of race horses and race participants, and the integrity of the sport, by regulating the administration of drugs that can affect the speed of harness horses racing in New York. In 2009 the Board issued a regulation designed to detect powerful new doping agents that can affect a horse's racing performance without being detected in samples taken on race days. It adopted this regulation, known as the "out-of-competition testing rule," because it found the existing regulatory scheme inadequate to detect these doping agents. This regulation -- at issue on this appeal -- prohibits the use of specified performance-enhancing drugs, authorizes the Board to test race horses away from the track before they race, and establishes penalties for violations. Horses may be tested if they are under the 1 Effective February 1, 2013, the Board was merged into the new State Gaming Commission. See L. 2012, ch. 60, § 1 [Part A]; Racing, Pari-Mutuel Wagering and Breeding Law§ 102. See also Racing Law§§ 122 (Board's rules and regulations continued); 125 (transfer of Board's functions to the Gaming Commission has no effect on pending actions or proceedings). We refer to respondent as "the Board" in this brief for consistency with the record references. care or control of a trainer or owner licensed by the Board and are anticipated to compete at New York tracks within 180 days.2 Petitioners are licensed trainers and owners of harness race horses, owners of harness race horse training facilities, and a non-profit organization of licensed owners, trainers and drivers. 3 They commenced this C.P.L.R. article 78 proceeding to enjoin the enforcement of the regulation on the date when it became effective, and before the Board had applied it to anyone. Petitioners asserted that the regulation is beyond the Board's jurisdiction, authorizes unreasonable searches, and is arbitrary, capricious, and unconstitutional. Supreme Court annulled the regulation and enjoined the Board from enforcing it, holding that the Board exceeded its statutory authority in promulgating it. The Appellate Division, Third Department, reversed, holding that the Racing, Pari-Mutuel Wagering and Breeding Law (the "Racing Law") authorized the Board to adopt the regulation and that, with one exception, the individual provisions of the regulation were reasonable and were not arbitrary or capric10us. 2 On March 12, 2014, the Board proposed amendments to the regulation. The amendments are not yet scheduled for publication in the State Register. If and when a notice of proposed rulemaking is published, we will furnish it to the Court. 3 Petitioners challenge only the regulations applicable to harness race horses -- 9 N.Y.C.R.R. § 4120.17. Similar regulations for thoroughbred race horses, 9 N.Y.C.R.R. § 4043.12, have not been challenged. 2 This Court should affirm. The Appellate Division correctly concluded that the Racing Law authorizes the Board to adopt the regulation, noting that the Racing Law grants the Board "general jurisdiction over all horse racing activities ... in the state and over the ... persons engaged therein,"§ 101(1), the power to supervise harness race meetings,§ 301(1), and the obligation to issue regulations to prevent the administration of drugs that can affect race performance,§ 301(2). This broad grant of authority to the Board is not restricted by section 902(1), which provides that equine drug testing "at race meetings" is to be conducted by a state college. Nor is the Board's authority to test horses for drugs limited to testing horses while they are "at race meetings," as shown by the language and history of these statutes and of more than 70 years of drug testing by the Board. The Board has the statutory authority to ban the new performance-enhancing doping agents and, correspondingly, to promulgate the out-of-competition regulation to effectively detect the new doping agents that cannot be detected by on-track sampling on race days. The Appellate Division also correctly rejected appellants' other challenges to the regulation, concluding that the limited warrantless administrative searches authorized by the regulation did not constitute unreasonable searches, 3 that various provisions of the regulation4 had a rational basis and were neither arbitrary nor capricious, and that the regulatory penalties were not excessive. This Court should affirm the Appellate Division's order. QUESTIONS PRESENTED 1. Whether the Board has the statutory authority to adopt the regulation authorizing the out-of-competition drug testing of harness race horses. 2. Whether the limited warrantless administrative searches authorized by the regulation to obtain samples from harness race horses to test for performance-enhancing drugs are reasonable within the meaning of the Fourth Amendment of the United States Constitution and Article I, section 12, of the New York Constitution. 3. Whether petitioners sustained their heavy burden of demonstrating that the challenged provisions of the regulation have no rational basis and are arbitrary and capricious. 4. Whether the regulatory penalties are valid and not excessive. 4 The Appellate Division affirmed Supreme Court's annulment of one provision, prohibiting proteins and peptide-based drugs [9 N.Y.C.R.R. § 4120.17(e)(3)], on the ground that it conflicted with another regulation. The Board did not cross-appeal. Accordingly, the validity of that provision is not before this Court. 4 STATUTES AT ISSUE AND THEIR HISTORY A review of the relevant provisions of the Racing Law and their history demonstrates that the Board's authority to promulgate regulations relating to equine drug testing, including which horses to test, when and where to test them, and what substances to prohibit, derives from Racing Law§§ 101(1) and 301(1) and (2) and their predecessors. As explained below, the Board's drug testing authority predates Racing Law§ 902 by decades and is neither derived from nor limited by that statute. A. The Board's Statutory Authority Over Drug Testing Has Been Broad Since Its Inception The Board's plenary authority to control the drugging of race horses is granted by Racing Law§§ 101(1), 301(1) and 301(2). Section 101(1) grants the Board general jurisdiction over "all horse racing activities and all pari-mutuel betting activities, both on-track and off-track, in the state" and over the persons engaged therein. Racing Law § 101(1) (emphasis added)5 . Section 301(1) broadly authorizes the Board to "supervise generally all harness race meetings 5 Racing Law§ 101 was repealed by L. 2012, ch. 60, pt. A, § 1, and the relevant portions were reenacted without substantive change in§§ 104(1),(4), and (19). Racing Law§ 103(d) provides that, within the Gaming Commission, the division of horse racing and pari-mutuel wagering "shall be responsible for the supervision, regulation and administration of all horse racing and pari-mutuel wagering activities," as described in articles two through eleven of the Racing Law. The 2012 legislation did not substantively amend Racing Law § 301(1) and (2) or§ 902(1). In this brief, references to Racing Law §§ 101(1), 301(1) and (2), and 902(1) mean the statutes as in effect when the Board adopted the regulation at the end of 2009. 5 in this state at which pari-mutuel betting is conducted." And, "without limiting the generality of the foregoing, and in addition to its other powers," section 301(2) directs the Board to "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." Racing Law § 301(2)(a). These statutes derive from legislation enacted more than seventy years ago when the State first became involved in directly regulating horse racing meets. In 1895 the Legislature established a State Racing Commission ("SRC") that licensed racetrack operators (L. 1895, ch. 520, § 5). The Legislature continued the SRC with minor revisions in 1926 (L. 1926, ch. 440, § 6). In 1934, the Legislature granted the SRC broad "general powers," including the "power to supervise generally race meetings," the power to "adopt, amend and promulgate rules and regulations, not inconsistent with this act, to carry into effect its provisions," and the power to specify which participants in horseracing must obtain an occupational license. L. 1934, ch. 310, § 3 (the 1934 act). And in language similar to the current Racing Law§ 301(2)(a), section 6-a directed the SRC to "prescribe rules or regulations for effectually preventing the use of improper devices, the administration of drugs or stimulants or other improper 6 acts for the purpose of affecting the speed of horses in races in which they are about to participate." L. 1934, ch. 310, § 3. Thus, since 1934, the Legislature has granted broad regulatory authority over horseracing to a State agency and specifically directed that agency to promulgate rules to prevent the drugging of horses in a manner that would affect their race performance. When pari-mutuel harness racing was authorized in 1940, the Legislature enacted the Pari-Mutuel Revenue Law ("PMRL") to supplement the 1926 law. L. 1940, ch. 254, § 1. The new law created a separate State Harness Racing Commission ("SHRC"). In language similar to that in the current Racing Law § 301(1), the Legislature gave the SHRC "power to supervise generally harness race meetings in the state" and directed it to "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 horses in races in which they are about to participate." L. 1940, ch. 254, § 36. In 1953, the Legislature amended the first sentence of PMRL § 35 to give the SHRC "general jurisdiction over all pari-mutuel harness racing activities in the state and the corporations, associations, or persons engaged therein." L. 1953, ch. 391, § 1. This sentence became Racing Law § 101(1), granting the Board sweeping jurisdiction over all harness racing activities. PMRL § 36 7 continued to direct the SHRC to promulgate regulations preventing drugging horses in a manner that would affect their speed in races. In 1954 the Legislature amended PMRL § 36 to divide that section into two subdivisions which are similar to the first two subdivisions now in Racing Law § 301. PMRL § 36(1) retained in the SHRC plenary power over harness race meetings. It also expanded the SHRC's general rule-making power by adding: "The commission may adopt rules and regulations not inconsistent with this act to carry into effect its purposes and provisions and to prevent circumvention or evasion thereof." L. 1954, ch. 5, § 2 (emphasis added to show new language). It also added a new phrase ("[w]ithout limiting the generality of the foregoing, and in addition to its other powers") to the beginning of subsection 36(2), to make clear that the more specific legislative directives in that provision were not meant to restrict the SHRC's general authority over racing. The directive that the SHRC prescribe regulations preventing the administration of drugs that affect the speed of horses in races was moved to a new section 36(2)(b). L. 1954, ch. 5, § 2. Pursuant to the 1954 law, the SHRC promptly adopted rules that (1) prohibited the administration of any drug that would "stimulate or depress a horse" and (2) prohibited the administration of any drug at all to a horse within 48 hours prior to a race. See SHRC Rule Amendment filed with Department of 8 State on July 1, 1955, p. 65, Rule 21 § 4 (Addendum, p. A84);6 12 Official Supplement to N.Y.C.R.R. (1959), p. 989, SHRC Rule 21 (d)(l, 4), filed June 6, 1956 (Addendum, p. A88). In 1973, the Legislature amended the 1926 law and the 1940 PMRL to eliminate the SRC and the SHRC, and enacted a new Article VIII in the PMRL creating the Racing and Wagering Board in the Executive Department. L. 1973, ch. 346, § 201. The purpose of the amendment was to unify policy direction and administrative control over all horse racing and pari-mutuel wagering within one entity. Id.; see also Governor's Memorandum, reprinted in 1973 N. Y.S Legislative Annual 58 (Addendum, p. A90). Section 201 of the new article VIII, entitled "General jurisdiction," which is almost identical to Racing Law§ 101(1), gave the Board "general jurisdiction over all horse racing activities and all pari- mutuel betting activities, both on-track and off-track, in the state and over the corporations, associations, and persons engaged therein." L. 1973, ch. 346, § 3. Thus, in 1973, the Legislature gave the Board all the powers, duties and functions previously granted to the SRC and the SHRC, including the power to issue regulations to prevent horse drugging. Id. 6 For the Court's ease of reference, pages in cited legislative and administrative reports, and cited regulations from other states are included in a separately bound Addendum of Legislative and Administrative Materials submitted with this brief. 9 B. Racing Law§ 902(1) and Its Predecessor Have Never Limited the Board's Authority to Conduct Equine Drug Testing The preceding discussion demonstrates that the Board's drug testing authority does not rest on Racing Law§ 902(1). The predecessor of that section was not adopted until 1977, by which time the Board's authority over drug testing was well established. In that year, the Legislature adopted a new section 49 of the PMRL, providing: In order to assure the public's confidence and continue the high degree of integrity at the pari-mutuel betting harness tracks, pre-race and post-race testing at race meetings shall be conducted by a land grant university within the state of New York with a regents-approved veterinary college facility pursuant to rules and regulations to be promulgated by the state racing and wagering board. L. 1977, ch. 267, § 6. The purpose of that statute was to restore equine drug testing to State control. Since 1935, the SRC had operated its own laboratory in Jamaica, New York, that analyzed samples and conducted research related to equine drugging. See 1935 SRC Annual Report, pp. 39-40 (Addendum, p. A2). The lab was funded by assessments that the SRC charged thoroughbred racetracks and by license fees. L. 1940, ch. 254, § 25. When the Legislature created the SHRC in 1940, it did not include a provision for funding drug testing for harness horses. Consequently, the harness tracks privately paid for samples to be tested 10 by the SRC lab. See, e.g., 1951 SRC Annual Report, p. 15 (Addendum, p. A28). Between 1940 and the early 1970s, the SRC lab analyzed hundreds of thousands of samples from harness horses alone. It also tested 1,485 urine samples from 1948 to 1966 collected from thoroughbred horses off the grounds of the racetrack. See Addendum, pp. A3, A4-A82. In 1971, Cornell Veterinary College commenced a pilot project at two harness tracks to conduct pre-race testing using a mobile laboratory to analyze blood samples at the track before each race -- a service that the State lab could not provide. The harness tracks, having no statutory obligation to use the State's lab, eventually routed all of their samples to Cornell. By 1976, Governor Carey and the Board sought legislation that would ensure the integrity of horse racing by restoring control of laboratory drug testing to the Board by closing the failing State lab and by directing Cornell to conduct equine drug testing. See State of New York Executive Budget for the Fiscal Year April 1, 1976 to March 31, 1977, p. 404 ("The current system of trackside laboratories would be extended to include all tracks, with staff reporting directly to the Board") (Addendum, p. A92). Thus, the 1977 amendment adding section 49 to the PMRL directed that pre-race and post-race testing at race meetings be conducted by a land grant university within the state of New York with a regents-approved 11 veterinary college facility pursuant to regulations promulgated by the Board. Cornell was the only entity that met the statutory criteria. C. Enactment of the Racing Law Continued The Broad Authority to Regulate In 1982 the Legislature repealed the var10us unconsolidated laws regarding horse racing, including the PMRL and the 1926 law, and created the Racing, Pari-Mutuel Wagering and Breeding Law as a new chapter of the consolidated laws. L. 1982, ch. 865. As a result, the former PMRL § 201 became Racing Law § 101, giving the Board general jurisdiction "over all horse racing activities and all pari-mutuel betting activities, both on-track and off-track, in the state." The former PMRL § 36 became Racing Law§ 301, giving the Board plenary authority over harness racing and, among other things and without limiting that authority, directing the Board to promulgate regulations for preventing the use of drugs that affect the speed of horses. PMRL § 49 became Racing Law § 323, directing that pre-and post-race testing at race meetings be conducted by Cornell. Finally, provisions describing the method for paying for the costs of equine drug testing became Racing Law§ 902. In 1993, the Legislature repealed Racing Law § 323 -- directing that Cornell conduct the testing -- and moved what had been section 323 to section 902 where it became Racing Law§ 902(1), as amended. See L. 1993, ch. 60, § 3 (dropping pre-race testing and authorizing specific administrative penalties "for 12 racing drugged horses"); see also Bill Jacket, L. 1993, ch. 60, pp. 6, 12 (Addendum, p. A95-96). The former section 902 provisions dealing with payment for drug testing became Racing Law§ 902(2). Finally, in 2010, the Legislature amended section 902 to allow the equine testing program to be moved from Cornell to Morrisville State College. L. 2010, ch. 15; see also Sponsor's Mem., Bill Jacket, L. 2010, ch. 15 (Addendum, p. A97). In sum, Racing Law§ 902(1) was enacted several decades after the Board was granted authority to conduct equine drug tests. The Board's responsibility for the integrity of horse racing and authority to promulgate regulations relating to equine drug testing has been grounded from its inception on its general authority to regulate all horse racing activities in the State. The Board's regulatory authority was not limited by the Legislature's more recent enactment of Racing Law§ 902 authorizing a state college to conduct drug testing at race meetings. THE OUT-OF-COMPETITION TESTING REGULATION A. The 1982 Regulation In 1982, pursuant to its statutory authority under Racing Law§§ 101(1), 301(1) and 301(2), the Board promulgated rules, codified as 9 N.Y.C.R.R. part 4120, to regulate the administration of drugs to harness race horses before their participation in pari-mutuel races. Those rules establish, among other things, a 13 schedule providing that a limited number of identified drugs may be administered at various times (on race day or up to 24, 48, 72 or 96 hours before the horse's scheduled post time [9 N.Y.C.R.R. § 4120.2(b)-(g)]), and that no other drugs may be administered within one week before a horse races [9 N.Y.C.R.R. § 4120.2(h)]. To determine whether a harness race horse has been administered any drugs in violation of those rules, State veterinarians at race tracks take biologic samples (blood or urine) from harness race horses at the conclusion of a race and send them to the State Equine Drug Testing Laboratory at Morrisville State College for analysis. B. The Present Rulemaking The Board developed the out-of-competition testing regulation to close a loophole in the 1982 regulation that allowed unscrupulous owners and trainers to illegally dope their horses with powerful new performance-enhancing drugs without detection (R255, 276).7 The Board and the director of its equine drug testing and research program, Dr. George A. Maylin, found strong evidence that some owners and trainers of race horses often use various protein-based doping agents, including blood and gene doping drugs, to affect the performance of their horses in pari-mutuel races, in a manner that evades race day detection (R255, 276). 7 Numbers in parentheses preceded by "R" refer to pages in the Record on Appeal. 14 According to Dr. Maylin, who is regarded as a leading expert on equine pharmacology, these doping agents can alter a horse's physiology and natural ability to race, and can affect performance long after the drug can be detected (R255). These doping agents can produce the same effect as strenuous exercise, producing an unnaturally fit horse, and cause more oxygen to be released to muscle cells than normal (R256). They can make a lame horse run as ifit were well, a particularly dangerous situation that can cause a horse to break down, with the potential for more racetrack accidents resulting in serious injury and loss oflife to animal and human participants (R255-256). Some drugs also cause severe tissue necrosis that destroys nerves long after the drugs have been eliminated from a horse's body (R256). Dr. Maylin explained that these drugs have no therapeutic purpose or veterinary use in a racing horse and are solely used to gain unfair advantage in races (R255-256, 414-416). The time during which the new drugs can be detected is limited, but the performance-enhancing benefits remain in a horse's system long after the detection period has passed. According to Dr. Maylin, the trainer continues the doping regimen for several months, which enhances the strength and duration of the drugs' effects so that their use can be suspended before race day to prevent detection in post-race sampling (R257-258). Thus, an unscrupulous owner or trainer need only stable a horse off track grounds, administer the doping agent 15 over time, and bring the horse to the track on the day of the race, well after the time for detection has passed but within the period for enhancing the horse's race performance (R234). The only practical means of detecting these drugs earlier is to test a horse at some time before competition when the drug is still present in its system at a detectable level (R256). Accordingly, the regulation was published in proposed form in the State Register on October 28, 2009 (R233-235). The proposed rule reflected comments received during the Board's preliminary public comment solicitation period (R106-107). The Board explained that the statutory authority for the proposed rule was found in Racing Law §§ 101(1), 301(2)(a), and 902(1) (R234). The rule was adopted on December 30, 2009, with an effective date of January 1, 2010 (R237). The rule for harness horses, codified at 9 N.Y.C.R.R. § 4120.17, provides: (a) Any horse on the grounds of a racetrack under the jurisdiction of the Board or stabled off track grounds is subject to advance testing without advance notice for blood doping, gene doping, protein and peptide-based drugs, including toxins and venoms, and other drugs and substances while under the care or control of a trainer or owner licensed by the Board. (b) Horses to be tested shall be selected at the discretion of the State judges or any Board representative. Horses to be tested shall be selected from among those anticipated to compete at New York tracks within 180 days of the date of testing or demand for testing. 16 (c) The State judges or any Board representative may require any horse of a licensed trainer or owner to be brought to a track under the jurisdiction of the Board for out-of-competition testing when that horse is stabled out-of-state at a site located within a radius not greater than 100 miles from a New York State racetrack. The trainer is responsible to have the horse or horses available at the designated time and location. (d) A Board veterinarian or any licensed veterinarian authorized by the State judges or any Board representative may at any time take a urine or blood sample from a horse for out-of-competition testing. (e) Prohibited substances are: (1) blood doping agents, including, but not limited to, erythropoietin (EPO), darbepoetin, Oxyglobin, Hemopure, Aranesp, or any substance that abnormally enhances the oxygenation of body tissues; (2) gene doping agents or the nontherapeutic use of genes, genetic elements, and/or cells that have the capacity to enhance athletic performance or produce analgesia; (3) proteins and peptide-based drugs, including toxins and venoms. (f) The presence of any substance at any time described in subsections (1), (2) or (3) of subdivision (e) is a violation of this rule for which the horse may be declared ineligible to participate until the horse has tested negative for the identified substance, and for which the trainer shall be responsible pursuant to Board Rule 4120.4. (g) The trainer, owner and/or their designees, and any licensed racing corporation shall cooperate with the Board and its representatives/designees by: (1) assisting in the immediate location and identification of the horse selected for out-of-competition testing; 17 (2) providing a stall or safe location to collect the samples; (3) assisting in properly procuring the samples; and (4) obeying any instruction necessary to accomplish the provisions of this rule. The failure or refusal to cooperate in the above by any licensee or other person shall subject the licensee or person to penalties, including license suspension or revocation, the imposition of a fine and exclusion from tracks or facilities subject to the jurisdiction of the Board. (h) Any horse which is not made available for testing as directed, including the failure to grant access on a timely basis, shall in the absence of acceptable mitigating circumstances, be ineligible to participate in racing for one hundred twenty days. (i) In the absence of extraordinary mitigating circumstances, a minimum penalty of ten (10) year suspension will be assessed for any violation set forth in subdivision (f). (j) An application to the Board for an occupational license shall be deemed to constitute consent for access to any off-track premises on which horses owned and/or trained by the individual applicant are stabled. The applicant shall take any steps necessary to authorize access by Board representatives to such off-track premises. THE PROCEEDINGS BELOW A. Supreme Court Proceedings and Judgment On January 7, 2010, petitioners commenced a proceeding pursuant to C.P.L.R. article 78 and C.P.L.R. 3002, seeking an order declaring 9 N.Y.C.R.R. § 4120.17, among other things, arbitrary, capricious and beyond the Board's authority to promulgate (R31-140). Petitioners also sought a temporary 18 restraining order ("TRO") enjoining the Board from enforcing the regulation pending a hearing, which was granted (R32, Rl 79-188). Petitioners alleged that the regulation exceeded the Board's authority because, they argued, Racing Law § 902(1) authorizes the Board to conduct equine testing only "at race meetings" and does not permit the Board to test horses stabled off track or not yet entered to race, including horses expected to race within 180 days of the demand for testing (R37, 39). Petitioners also challenged specific sections of the regulation as arbitrary and capricious or otherwise unlawful. The Board disputed petitioners' allegations (R192-288), submitting an affidavit of Dr. Maylin (R253-271) explaining the need for the regulation and an affirmation of Board Assistant Counsel Goodell explaining the rule and that petitioners' legal arguments had no merit (R272-288). By judgment filed August 15, 2011, Supreme Court held the challenged regulation null and void (Rl 7). The court determined that the Board's statutory authority to conduct equine testing came from Racing Law§ 902(1), and did not discuss sections 101 and 301. The court construed section 902(1) to restrict the Board to testing race horses only when they are physically "at race meetings" (R16-17). Reasoning that horses stabled off-track on private farms up to 180 days prior to a race are neither "at race meetings" nor at facilities "overseen" by the Board, the court concluded that the Board acted in excess of its jurisdiction 19 in promulgating the regulation (Rl 7). Recognizing that its determination that the regulation exceeded the Board's authority obviated the need to address petitioners' remaining contentions, the court nonetheless invalidated a number of the specific provisions of the regulation "in an effort to guide the parties" (Rl 7- 25). B. The Appellate Division's Decision The Appellate Division, Third Department, reversed Supreme Court's judgment, finding that the Racing Law authorized the Board to adopt the out-of- competition regulation and that, with one exception, the specific provisions of the regulation were valid (R451-460). See Matter of Ford v. New York State Racing and Wagering Bd., 107 A.D.3d 1071 (3d Dep't 2013). That court rejected Supreme Court's holding that Racing Law§ 902(1) limits the Board's authority to test race horses only at race tracks on race day (R452-453). The Appellate Division found that section 902 is not a limit on the Board's authority to implement regulations to conduct drug testing. Rather, that section directs that a state-approved entity conduct the drug tests that the Board orders on tracks at race meetings (R453, 454). The court explained (R453) that Supreme Court overlooked the plain language of Racing Law§§ 101 and 301. As the court observed, section 101(1) "expressly authorizes respondent to regulate off-track, out-of-competition 20 activity" (R454). The court reasoned that the plain language of sections 101 and 301, together with the Board's very broad power to regulate the harness racing industry and the State's interest in assuring the integrity of horse racing, establish that the Board did not exceed its statutory authority in adopting the out-of-competition regulation (R454). The court also rejected all but one of petitioners' specific challenges to the regulation. First, citing Dr. Maylin's explanation that off-track testing well in advance of a race was necessary to deter use of the new doping agents, the court found that it was neither arbitrary nor capricious to sample horses that were being trained to race during the next180 days (454-456). The court explained that other racing jurisdictions that have similar out-of-competition testing regulations allow testing for longer periods before a horse is expected to race or have no limit on the time for testing (R455-456). The court also rejected petitioners' contention that newer testing methods provide more accurate results closer in time to a race, noting that the Board is not required to adopt those methods, particularly in light of budgetary and technological constraints (R455). The Third Department also upheld the requirement that a licensed owner or trainer bring to a New York track for testing any eligible racehorse stabled out-of-state within 100 miles of the track. The Board's regulatory impact statement explained that it had considered the cost of transporting horses great 21 distances and based the 100-mile radius rules in part on the fact that many horsemen already ship their horses that distance to race in New York. The court again referred to the rules of other racing jurisdictions, noting that they do not limit the distance owners and trainers may be required to bring their horses for testing (R456). The Appellate Division also held that the regulation did not violate the constitutional right of Board licensees and of non-licensee horse farm owners to be free from unreasonable searches and seizures (R456-458). Because horse racing is a pervasively regulated industry, horse farm owners and training facilities have a reduced expectation of privacy. In addition, the State has a substantial interest in detecting performance-enhancing drugs in race horses and the intrusion is limited to taking biologic samples from horses. The regulation also provides adequate notice to horse farm owners and training facilities that such testing may occur if they lease space to licensed owners and trainers. The court found that the regulation deems licensed owners and trainers to consent to providing the Board access to off-track premises, thereby placing the burden on licensed individuals to obtain permission from non- licensed entities for possible unannounced visits by Board representatives (R457). 22 The Appellate Division also upheld the penalty prov1s10ns of the regulation. In particular, the court found that the 10-year minimum penalty was not unreasonable, arbitrary or capricious (R458). The court noted that a trainer can receive a lower penalty upon a showing of extraordinary mitigating circumstances. Further, the court explained that, while lengthy, the 10-year penalty is not shockingly disproportionate to the proscribed conduct because it deters drug violations that compromise the integrity of racing and wagering and endanger the safety of both human and equine competitors. And the court noted that at least two other states have similar penalty provisions (R458). Finally, the Third Department concluded that the list of prohibited substances was not impermissibly vague (R458). However, the court found that the provision prohibiting protein and peptide-based drugs, including toxins and venoms, § 4120.17(e)(3), should be annulled because it conflicted with another regulation, 9 N.Y.C.R.R. § 4120.2, that permits the use of drugs with certain proteins within certain times before a race. As we noted above, the Board did not cross-appeal, and thus the validity of§ 4120. l 7(e)(3) is not before this Court. ARGUMENT THE OUT-OF-COMPETITION TESTING REGULATION IS VALID The regulation at issue is well within the Board's authority under the Racing Law, and there is no merit to petitioners' constitutional challenges. The 23 Legislature has long directed the Board to effectively supervise and regulate horse racing to ensure the integrity of racing and wagering in New York and the safety of horses, harness drivers and other race participants. The Board determined that its existing equine drug regulations were inadequate to detect a new generation of doping agents that can affect a horse's race performance. One of the corrupting effects of these new doping agents is that they can be administered weeks or months before a horse races and then be discontinued sufficiently before the race that, although their effects persist, they cannot be detected at race time. In response, the Board promulgated a new regulation, 9 N.Y.C.R.R. § 4120.17, prohibiting the use of these new doping agents on a harness racehorse and setting forth reasonable procedures governing the out-of- competition collection of samples from race horses when the prohibited doping agents are still detectable. The Third Department properly upheld all the provisions of the rule that petitioners challenge in this Court. In Point I, we explain that the Racing Law authorized the Board to adopt the regulation and that the Board's authority is not limited to testing horses only while they are at race tracks during race meetings. In Point II, we explain that the regulation does not violate petitioners' or third parties' constitutional rights to be free from unreasonable searches and seizures. In Point III, we explain that 24 the specific provisions of the regulation, including the penalty provision, are rational and not arbitrary and capricious. Further, as we explain below, many of petitioners' arguments challenging particular aspects of the regulation rest on petitioners' freewheeling speculation about how the Board might apply the rule in future cases based on individual circumstances that of necessity are not before this Court in this pre-enforcement challenge. Petitioners' hypothetical arguments are out of place in a facial challenge to the regulation, because they rely on consequences that are not inherent in the regulation as written. See Dep't of Taxation & Finance of N. Y. v. Milhelm Attea & Bros., 512 U.S. 61, 69 (1994) (in evaluating a facial challenge to New York's cigarette tax regulations, "we do not rest our decision on consequences that, while possible, are by no means predictable" but instead "confine ourselves to those alleged defects that inhere in the regulations as written"); see also Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 514 (1990) (facial challenge may not be "based upon a worst-case analysis that may never occur"). Instead, petitioners must establish that, regardless of the facts of individual cases or parties, the regulation "as written" will necessarily result in unlawful applications. People v. Stuart, 100 N.Y.2d 412, 421 (2003) (requiring plaintiffs to prove facial invalidity based only on "the words of the statute on a cold page"); see also Cohen v. State of N. Y., 94 N.Y.2d 1, 8 (1999) (a facial 25 challenge must establish unconstitutionality in every conceivable application). As we explain below, petitioners have not sustained this heavy burden as to any of their arguments. POINT I THE RACING LAW AUTHORIZES THE BOARD TO ADOPT THE OUT-OF-COMPETITION TESTING REGULATION The Board's authority to adopt regulations allowing it to test race horses for drugs that affect race performance is found in the Legislature's broad regulatory delegations contained in Racing Law§§ 101(1), 301(1) and 301(2)(a). "The cornerstone of administrative law is derived from the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation." Matter of Nicholas v. Kahn, 47 N.Y.2d 24, 31 (1979). Under this principle, "an agency can adopt regulations that go beyond the text of that legislation, provided they are not inconsistent with the statutory language or its underlying purposes." General Elec. Cap. Corp. v. N. Y.S. Div. of Tax Appeals, 2 N.Y.3d 249 (2004). Deference to the rulemaking agency is particularly appropriate when the interpretation of a statute "involves specialized 'knowledge and understanding of underlying operational practices or entails an evaluation 26 of factual data and inferences to be drawn therefrom."' Matter of KSLM- Columbus Apts., Inc. v. New York State Div. of Haus. & Community Renewal, 5 N.Y.3d 303, 312 (2005), quoting Kurcsics v. Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459 (1980). Here, consistent with both the language and the purpose of the Racing Law, the Board promulgated the new regulation to make its drug testing program more effective at detecting when horses have been unlawfully drugged with powerful new doping agents that affect their performances in pari-mutuel harness racing (R254, R276). Racing Law § 101(1) gives the Board "general jurisdiction over all horse racing activities and all pari-mutuel betting activities, both on-track and off-track ... , in the state and over the corporations, associations, and persons engaged therein" (emphasis added). The Board's exercise of this regulatory jurisdiction is not limited to race tracks or race meetings, but instead encompasses all persons engaged in all horse racing activities anywhere in New York State.8 Furthermore, Racing Law article III delegates to the Board broad power to regulate harness racing in particular. Section 301(1) gives the Board the power 8 Thus, petitioners' assertion that the statute's reference to off-track activities is limited to off-track betting (Br. at 43, n. 16) is ultimately irrelevant, since the plain language of Racing Law § 101(1) authorizes the Board to regulate all horse racing activities in New York and the persons engaged in them, with no limit as to time or place within the State. 27 to supervise generally all harness race meetings and to adopt regulations to carry into effect the statute's purposes (including supervising harness racing) and to prevent circumvention of the statute. "Without limiting the generality" of section 301(1), section 301(2) delegates additional powers to the Board, including the directive to promulgate 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." Racing Law § 301(2)(a). In addition to these statutes evincing the Legislature's grant of broad regulatory authority to the Board, this Court and others have recognized that the Board has sweeping jurisdiction over harness horse racing in New York. See Boreali v. Axelrod, 71N.Y.2d1, 10-11 (1987), citing, as an example of the proper delegation of broad regulatory authority to an agency, Matter of Sullivan County Harness Racing Ass'n v. Glasser, 30 N.Y.2d 269, 277 (1972) (the Legislature "properly delegated to the [Board] very broad power to regulate the harness racing industry"). The Board is empowered "to prescribe rules and regulations for the effective control" of horse racing. Equine Practitioners Ass'n, Inc. v. N. Y.S. Racing & Wagering Bd., 105 A.D.2d 215, 219 (1st Dep't 1984) (quoting Matter of Bokman v. N. Y.S. Racing & Wagering Bd., 77 A.D.2d 459, 461 (4th Dep't 1980)), modified on other grounds, 66 N.Y.2d 786 (1985); see also 28 Matter of Gill v. N. Y.S. Racing & Wagering Bd., 11 Misc. 3d 1068(A), at ***9 (New York Co. Sup. Ct. 2006), modified on other grounds, 50 A.D.3d 494 (1st Dep't 2008) (Board is authorized to ban a long-lasting drug based on the Board expert's opinion that the drug was "apparently being used on horses who were racing" and served no legitimate purpose). In particular, the Board's core mission includes regulating equine drugging to ensure the integrity of horse racing in New York. As this Court explained in Matter of Casse v. N. Y.S. Racing & Wagering Bd., 70 N.Y.2d 589, 595-96 (1987): Without question, this State has an important interest in assuring the fairness and integrity of horse racing, especially since horse racing is carried out under State auspices and is the only sport in which wagering is officially sanctioned. The State also has a significant interest in protecting competitors from participation in tainted horse races and safeguarding the wagering public from fraud. Additionally, the State has an interest in protecting horses from the dangers of racing under the effects of analgesics or stimulants. Thus, the general jurisdiction conferred on the Board by Racing Law§§ 101(1) and 301(1) and (2) authorized it to adopt 9 N.Y.C.R.R. § 4120.17 to prohibit the use of doping agents that affect the race performance of horses and to establish procedures necessary to detect those drugs. The purpose of the sampling is to determine whether a race horse is eligible when entered to race in New York, or 29 has been impermissibly doped. The Board must conduct these tests well before entry to be able to determine condition at the time of entry. There is no merit to petitioners' contrary argument that the Racing Law limits the Board's regulatory authority to testing horses only at race meetings. Petitioners rest this argument on two provisions of the Racing Law, the reference to "race meetings" in section 902(1), and the clause of section 301(2)(a) referring to "races in which [harness horses] are about to participate." Neither provision supports their argument. Section 902(1) provides in relevant part that "equine drug testing at race meetings shall be conducted by a state college" and directs the Board to promulgate regulations necessary to implement the section, including penalties for racing drugged horses. This provision is not the source of the Board's testing authority, nor does it purport to limit the Board's pre-existing testing authority. Instead, it addresses the specific question who shall conduct "equine drug testing at race meetings" - and provides that this testing shall be conducted by a state college, rather than a private laboratory or other facility. As we explained above in our discussion of the history of the relevant statutes, statutory provisions other than section 902 authorized the Board to conduct its equine drug testing program, and it did so for decades before section 902(1)'s predecessor provision was first adopted in 1977. Indeed, in 1984, the 30 Appellate Division, First Department, upheld the Board's adoption of rules regulating all equine drugging for up to one week before a race, and those rules were not limited to drugs administered at tracks or on race days. The First Department rested its determination on Racing Law§§ 101 and 301; it did not mention section 902's predecessor (section 323). Equine Practitioners, 105 A.D.2d at 219. Thus, section 902(1) was not the source of the Board's power to perform equine drug testing. Further, the statutory history demonstrates that section 902(1) was not intended to restrict the Board's authority but instead was adopted to replace the outdated State laboratory with the State veterinary college at Cornell (to which harness race tracks had privately turned for such tests), and thereby to return control oflaboratory testing to the Board. See State of New York Executive Budget for the Fiscal Year April 1, 1996 to March 31, 1997, p. 404 ("The current system oftrackside laboratories would be extended to include all tracks, with staff reporting directly to the Board") (Addendum, p. A92); 1977 Annual Report, N.Y.S. Racing & Wagering Bd., p.l (noting that the Board initiated legislation that year reorganizing the entire drug testing and research program under the sole control of the Board and that the Board entered into a contract with the veterinary college at Cornell to administer the testing and research stages of the program (emphasis added)) (Addendum, p. A94). 31 Accordingly, section 902(1) requires a college to conduct the laboratory testing to ensure race horses will not be under the influence of drugs when they participate "at race meetings" but does not restrict the Board's authority to ensure integrity in horse racing by collecting samples at other times and places than at racetracks. The phrase "equine drug testing at race meetings" in section 902(1) does not mean that the actual testing of samples must occur only at a race track, as petitioners' interpretation of the phrase "at race meetings" would suggest. Indeed, the drug testing, i.e., the evaluation of the samples, is done at Morrisville State College's off-track laboratory and not physically "at" the race meeting. Similarly, the Legislature did not intend "at race meetings" to limit the Board's regulatory authority to taking samples at the track on race days. Nor does Racing Law § 301(2)(a) restrict the Board to collecting equine drug testing samples only on race days and at race tracks. Section 301(2)(a) directs the Board to "prescribe rules and regulations for effectually preventing .. . the administration of drugs or stimulants ... for the purpose of affecting the speed of harness horses in races in which they are about to participate." Petitioners mistakenly argue (Br. at 29-32) that this statute limits the Board's authority to preventing the administration of drugs occurring only within a very narrow time period -- when the horses are "about to" participate in a race -- and 32 that the Board is powerless to prevent or test for drugs administered well before race day, even if administered to affect the speed of horses at race time. This argument conflicts with the preamble to section 301(2), which expressly states that section 301(2) is in addition to the Board's other powers and does not limit the authority of the Board to supervise harness racing and to adopt rules to prevent the evasion or circumvention of the Racing Law's purposes and provisions. See, e.g., Matter of Casse, 70 N.Y.2d at 595-96 (the State has a significant interest in preventing horse doping). The phrase "about to participate" does not limit the Board's equine drug testing authority to those drugs that are administered shortly before a race. Instead, the phrase means that the effect on the horse's speed must still be present when the horse is about to participate in a race. In other words, section 301(2)(a) authorizes the Board to regulate the misuse of performance-enhancing drugs whenever they are administered, particularly where, as here, those drugs are intended to and can affect the speed of horses in the races in which they are about to participate. Consequently, there is no merit to petitioners' argument that the "about to participate" language in section 301(2)(a) precludes the Board from adopting the challenged regulation. Petitioners' argument that the Board lacks the statutory authority to adopt the regulation is also at odds with the principle that statutes must be 33 interpreted "in a manner consistent with and in furtherance of the legislative intent behind the enactment." Matter of Yolanda D., 88 N.Y.2d 790, 795 (1996); see also Matter of Lamar Cent. Outdoor, LLC v. State, 64 A.D.3d 944, 949 (3d Dep't 2009). Petitioners' interpretation of the Racing Law provisions would undermine the purpose of the statutory scheme authorizing the Board to ensure the integrity of racing and wagering and the safety of harness racing participants. The regulation is consistent with the words of the relevant statutes, the circumstances surrounding their passage and the Board's long history of regulating harness horse racing in New York. Indeed, the Board is charged with the duty to adopt rules like 9 N.Y.C.R.R. § 4120.17, which is necessary to adapt to changing times and to regulate the growing use of new doping agents that have no legitimate purpose and are administered only to unfairly affect horses' speed and the outcome of races. Finally, this conclusion is consistent with the fact that Board's general authority to regulate the sport of horse racing is not limited to events that occur at race tracks or during race meetings. For example, the Board properly investigates off-track activities that include race-fixing, financial irresponsibility and hidden ownerships. A person who associates with known racketeers or acts as a front for another person who has been denied a license may be investigated and sanctioned by the Board without stepping onto a race track. By parity of 34 reasoning, an owner or trainer who illegally drugs a horse (no matter where the doping occurs) is not beyond the Board's jurisdiction if he or she does so before the horse arrives at a New York track when the natural consequence of the drugging is the manipulation of the horse's race performance on the track. The Board is required to ensure the integrity of race meetings, but in doing so, its enforcement jurisdiction is not limited to illegal drugging or other illegal activity occurring only at tracks during race meetings. For all these reasons, the regulation is squarely within the Board's general jurisdiction over horse racing activities and harness race meetings in New York and over the corporations, associations and persons who engage in them. This Court should uphold the Board's authority to promulgate it. POINT II THE REGULATION DOES NOT VIOLATE THE RIGHT OF LICENSEES OR NON-LICENSED ENTITIES TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES There is no merit to petitioners' argument (Br. at 39-50) that the regulation violates the federal and state constitutional rights of Board-licensed horse owners and trainers, and unlicensed horse farm owners, to be free from unreasonable searches and seizures. See U.S. Const., amend. IV; N.Y.S. Const., art. 1, § 12. Whether characterized as searches or seizures, or both, the very limited intrusions involved here, i.e., visiting the horses' on- or off-track locations 35 to collect blood and urine samples, satisfy the requirements for warrantless administrative searches under both federal and New York law. See New York v. Burger, 482 U.S. 691, 702-03 (1987); People v. Quackenbush, 88 N.Y.2d 534, 541 (1996). The Third Department properly rejected petitioners' claims that the regulation is unconstitutional (R456-458). Every aspect of horse racing in New York is pervasively regulated, and as a result, racing participants, licensed and unlicensed, have a significantly reduced expectation of privacy regarding horses and other property used in connection with racing. As detailed in Point I above, the State has substantial interests in ensuring that race horses are not illegally drugged. In addition, warrantless inspections are necessary to further the regulatory scheme, and the regulation prescribes specific rules to govern the manner in which the search is conducted and limit the discretion of those conducting it. For similar reasons, the regulation also satisfies the "special needs" exception to the warrant requirement. See Lynch v. City of New York, 589 F.3d 94, 99-100 (2d Cir. 2009). Petitioner's unrestrained speculation about the potential breadth of the Board's exercise of its authority under the regulation is beyond the scope of this pre- enforcement facial challenge. 36 A. The regulatory scheme satisfies the constitutional criteria for warrantless administrative searches. Both the federal and state constitutions permit warrantless administrative searches where the activity sought to be inspected is subject to pervasive government regulation and the searches are otherwise reasonable. See Burger, 482 U.S. at 702; Quackenbush, 88 N.Y.2d at 541-42. Horse racing is pervasively regulated in New York, see Anobile v. Pelligrino, 303 F.3d 107, 111 (2d Cir. 2001), and "everywhere else in the civilized world (as far as we know)." Dimeo v. Griffin, 943 F.2d 679, 681 (7th Cir. 1991) (en bane) (upholding a regulation requiring Illinois jockeys to submit to random drug testing not founded on any suspicion of wrongdoing). Pervasive governmental regulation is necessary because horse racing is highly dangerous and is the only sport in New York in which people may legally engage in pari-mutuel wagering, as well as because of the sport's "shadowed reputation." See Dimeo, 943 F.2d at 681; Anobile, 303 F.3d at 111. In consequence, owners and tenants of commercial premises used in horse racing, including stables, have a reduced expectation of privacy, and the government interest in regulating the participants is correspondingly heightened. In particular, New York race horses have been subject to warrantless drug testing for more than 70 years. A harness race horse owner, 37 trainer or stable owner, licensed or unlicensed, has at most a "minimal privacy expectation" in horse blood or urine. See Quackenbush, 88 N.Y.2d at 543 (upholding the warrantless search of the mechanical areas of a vehicle following an accident). Because horse racing is pervasively regulated, warrantless administrative searches of property used for racing purposes that are conducted pursuant to a regulatory scheme are constitutional when they satisfy three criteria: (1) a substantial governmental interest informs the regulatory scheme, (2) warrantless inspections are necessary to further the regulatory scheme, and (3) the regulation provides a constitutionally adequate substitute for a warrant by notifying the owner of the premises that his property will be subject to periodic inspections for specified purposes and limits the scope of the search and the discretion of the inspecting officers. See Burger, 482 U.S. at 702-03. To the extent the New York Constitution may prohibit some searches that the federal constitution does not, see People v. Scott, 79 N.Y.2d 474 (1992), New York's more stringent requirements are not implicated here. In Scott this Court explained that in New York a warrantless administrative search may not be undertaken solely to uncover evidence of crime. 79 N.Y.2d at 498. And this Court has further explained that a valid regulation authorizing an administrative search must meaningfully limit the discretion of the officers or 38 provide '"a satisfactory means to minimize the risk of arbitrary and/or abusive enforcement."' See Quackenbush, 88 N.Y.2d at 542 (quoting People v. Scott, 79 N.Y.2d 474, 500 (1992). Preliminarily, the regulation satisfies the requirement in Scott because the administrative searches further the Racing Law's civil/regulatory enforcement scheme. The taking and testing of horses' blood and urine for performance enhancing drugs have no criminal component and the penalties imposed by the regulation include no criminal sanctions. Thus, the searches authorized by the regulation are not undertaken solely to uncover evidence of crime. The regulation also satisfies the three Burger requirements as applied by this Court. First, the testing regulation is designed to further the compelling State interest in detecting and deterring the use of the new generation of performance-enhancing drugs in harness race horses. As Dr. Maylin noted in his affidavit, performance-enhancing drugs in race horses can result in animal breakdowns and racetrack accidents with loss of life and serious injury to both equine and human participants (R255-256). Indeed, petitioners admit that the State has a substantial interest in detecting performance-enhancing drugs in race horses to assure fairness, integrity and safety to animal and human participants and to the wagering public (Br. at 1). 39 Second, warrantless testing is necessary to accomplish the regulatory purpose of detecting and deterring illegal drug use. Requiring the Board to obtain a search warrant before every sample is taken could alert unscrupulous owners and trainers to the impending drug test, allowing them to adjust their drugging and thereby frustrating the purpose of the regulation to deter the use of the powerful new doping agents. See Donovan v. Dewey, 452 U.S. 594, 603 (1981) (forcing mine inspectors to obtain a warrant before each inspection might alert the owners and impede the statute's purpose of detecting and deterring mine safety violations); United States v. Biswell, 406 U.S. 311, 316 (1972) (warrantless, unannounced, frequent inspections of pawnshops under Gun Control Act are essential for effective deterrence). Petitioners do not seriously contest that the regulation satisfies the first two criteria for valid administrative searches. Instead, they assert that the regulation does not satisfy the third criterion because it does not sufficiently limit the scope of the testing or the discretion of the officers conducting it. Br. at 41-46. In particular, petitioners assert that the occurrence of the searches is "completely unpredictable" (Br. at 42), that there is no "advance notice" (Br. at 45), and that there are no standards governing the time, place and scope of the searches (Br. at 43). Petitioners are mistaken -- the regulation provides a constitutionally adequate substitute for a warrant by advising licensees and non- 40 licensees alike that harness race horses are subject to periodic sampling pursuant to the regulation and by properly confining the scope of the sampling and the discretion of the officers within constitutional bounds. First, the regulation provides notice to Board-licensed owners and trainers that their horses are subject to periodic sampling for the new performance- enhancing drugs and to private horse farm owners that the taking of biologic samples from tenants' horses may occur on their premises if they house race horses under the care or control oflicensees. As petitioners acknowledge (Br. at 31; R72), licensed owners and trainers are always on notice that their race horses are subject to random drug testing. And the regulation makes clear to both licensees and non-licensees that the inspections at issue here are conducted pursuant to the Board's regulation and thus are not discretionary or arbitrary acts by government officials. Second, the regulation is narrowly tailored to further its legitimate purposes. Although the regulation requires licensed trainers and owners and their designees to assist the Board in obtaining the samples, and allows the Board representative to obtain the samples from horses stabled on- or off-track, the permissible scope of the searches is narrowly defined in accordance with the purpose of the regulation: the only search or seizure involved is the taking of an identified horse's blood or urine sample to determine whether illegal 41 performance-enhancing substances have been administered to that horse. See 9 N.Y.C.R.R. § 4120.l 7(a), (g). See Quackenbush, 88 N.Y.2d at 544 (upholding administrative search where the scope of the intrusion was strictly tailored to correspond to the justification for the intrusion). The regulation sharply limits the discretion of the Board representatives to conducting the activities, specified in the regulation, necessary to obtain the samples. It does not authorize the Board representatives to search or inspect the premises where the horse is stabled or the persons or other property located on those premises. Moreover, the regulation specifically identifies the horses that are subject to sampling as "those anticipated to compete at New York tracks within 180 days" which "are under the care or control of a trainer or owner licensed by the Board." See id.,§ 4120.17(b), (a). Advance notification of the particular horses to be tested is not required because it would impede the efficacy of the testing program. See Spinelli v City of New York, 579 F.3d 160, 168 (2d Cir. 2009) ("effective inspection of a gun dealer's premises requires that the searches be unannounced in order to discover potential security infractions"). And the regulation further informs licensees and farm owners that only a Board veterinarian, a licensed veterinarian authorized by the State (track) judges, or a Board representative is authorized to conduct an inspection. See id., § 4120.l 7(d); see Burger, 482 U.S. at 711 (the statute notifies the person subject 42 to the inspection "who is authorized to conduct" it). The regulation does not authorize the Board's representatives to forcibly enter premises that are closed. Instead, the regulation provides that the caretaker of the horse shall be present, shall select a safe place (which may be a place other than the stable or farm where the horse is normally located) for the horse to be sampled, and shall assist in the sampling process (e.g., by holding the horse). 9 N.Y.C.R.R. § 4120.l 7(g). Petitioners suggest that the fact that the regulation's terms do not expressly limit the searches to particular hours of the day, "[w]hile not determinative of ... the legal validity of the Rules" (Br. at 46 n. 18), is further evidence of the lack of standards. But as petitioners acknowledge, the lack of a time of day limitation is not determinative. See Spinelli, 579 F.3d at 168 (regulation authorizing administrative inspection of gun shops "at all times" is constitutional). And as explained above, the regulation does not contemplate a forcible entry onto closed premises. Finally, the lack of a time of day limitation would not invalidate the regulation in this pre-enforcement facial challenge, since the regulation could be validly applied to inspections during business hours, for example. See Cohen v. State, 94 N.Y.2d 1, 8 (1999) (facial challenge must establish invalidity oflaw "in every conceivable application"). Accordingly, the regulation sufficiently limits the scope of the searches and the discretion of the officers conducting them. 43 Petitioners' reliance (Br. at 44) on Swint v. City of Wadley, Alabama, 51F.3d988, 998 (11th Cir. 1995) is misplaced because that case did not involve an administrative search. Swint involved two raids in which a masked 8- member SWAT team and 30 to 40 other law enforcement officers raided a nightclub with loaded weapons pointed at patrons who had been ordered to the floor. The court rejected the defendants' claim that this was an administrative search because the officers did not merely search for liquor law violations, but searched people without their consent for evidence of drug crimes. Swint has no relevance to the validity of the minimally intrusive administrative searches contemplated by the regulation here. Nor, as we explain in Point III(C), below, at pp. 55-57, is there any merit to petitioners' argument (Br. at 44-45) that the scope of the regulation is too broad, because it permits the Board to collect samples from horses stabled outside New York but within 100 miles of a New York harness track. First, this argument is inappropriate in this pre-enforcement challenge and does not provide a basis for invalidating the regulation on its face because the regulation may be validly applied inside New York State. See Cohen v. State, 94 N.Y.2d at 8 (facial challenge must establish invalidity of law "in every conceivable application"). Moreover, the regulation's limitations (e.g., that the horse is anticipated to race in New York within 180 days and is in the care or control of a New York-licensed 44 owner or trainer), apply to any drug sampling, in-state or otherwise, and satisfy the federal and state constitutional requirements for a warrantless administrative search. For these reasons, and contrary to petitioners' arguments (Br. at 46-50), the limited administrative searches authorized by the regulation are constitutional both as to Board-licensed owners and trainers and as to private horse farm owners who are not licensed by the Board but who stable harness race horses that are owned or trained by Board licensees. As the Third Department correctly found, "the regulation provides adequate notice to private horse farm owners that such testing may occur if they house horses under the care or control of licensed racehorse owners and trainers" (R457). And the taking of the blood and urine samples is strictly prescribed and does not require any involvement by horse farm owners, other than not excluding Board agents from their property for the limited purpose of obtaining a blood or urine sample from an identified horse belonging to a tenant. 9 The intrusion is further limited in time to the few minutes it takes to obtain the sample. 9 In any event, the horse farm owners in this case have no expectation of privacy in the stables and access roads they have leased to their tenants, the licensed trainers and owners. People v. Cosme, 48 N.Y.2d 286, 291 (1975) ("an individual who does not possess exclusive authority and control over premises has no reasonable expectation of privacy with respect to those premises"). 45 Moreover, all applicants for Board licenses, including owners and trainers, are deemed to consent to providing the Board access to any off-track premises where their horses are stabled, and are required to "take any steps necessary to authorize access by Board representatives to such off-track premises." 9 N.Y.C.R.R. § 4120.17G). Accordingly, owners and trainers stabling horses at private farms have an obligation to obtain permission from the farm owners for possible unannounced visits by Board agents. In this way, the regulation would not operate on unwitting farm owners. And there is no merit to petitioners' arguments (Br. at 4 7-49) that the regulation violates the rights of unlicensed farm owners because (petitioners argue) the farms are not subject to pervasive government regulation and a licensee's consent under the regulation cannot bind the farm owner. The Racing Law gives the Board regulatory authority over all "persons engaged" in "horse racing activities," Racing Law § 101(1), without regard to whether they are required to be licensed. Harness racing and all of its participants are subject to pervasive state regulation. An unlicensed horse farm owner who rents his stable to a licensed harness race horse trainer or owner is participating in the racing business and is to that extent subject to the Board's regulatory authority. Accordingly, the farm owner is subject to the regulation to the extent that a Board representative may come onto his farm to take biologic samples from his 46 tenant's harness race horses. For all these reasons, the out-of-competition regulation satisfies the constitutional criteria for warrantless administrative searches. B. The regulation also satisfies the "special needs" exception to the warrant requirement. For very similar reasons, the regulation is constitutional under the "special needs" exception to the warrant requirement. The "special needs" doctrine applies to any program of searches whose primary purpose is a government interest other than crime control, such as random drug tests of government employees, transportation employees or sports participants. 10 See, e.g., Lynch v. City of New York, 589 F.3d 94, 102 (2d Cir. 2009) (mandatory breathalyzer tests of all police officers who discharge a firearm resulting in injury or death); Dimeo v. Griffin, 943 F.2d 679 (7th Cir. 1991) (random drug test for horse jockey and drivers not founded on any suspicion of wrongdoing). Special needs searches have regularly been allowed when they were conducted pursuant to a regulatory scheme involving a diminished expectation of privacy. 10 Although the Board did not raise the special needs exception below, this Court may consider it because it is "a pure law issue" that "could not have been avoided by factual showings or legal countersteps had it been raised below." Bingham v. New York City Transit Auth., 99 N.Y.2d 355, 359 (2003); see also Richardson v. Fiedler Roofing Co., 67 N.Y.2d 246, 250 (1986) (this Court may address a question of statutory interpretation that was not presented below). The application of the special needs exception here turns on considerations similar to those in the record justifying the constitutionality of the regulation as a valid administrative search. 47 See Palmieri v. Lynch, 392 F.3d 73, 79 (2d Cir. 2004); see also Bd. of Educ. v. Earls, 536 U.S. 822, 832 (2002) (upholding random drug testing of high school students participating in extracurricular activities); Skinner v. Railway Labor Executives' Ass 'n, 489 U.S. 602, 627 (1989) (noting that railroad employees have a diminished expectation of privacy because they participate in a pervasively regulated industry). In applying the special needs doctrine, courts employ a balancing test -- weighing the governmental conduct in light of the purported special need against the privacy interest advanced -- by analyzing three principal factors: (1) "the nature of the privacy interest allegedly compromised by the [challenged governmental conduct];" (2) "the character of the intrusion imposed by the [challenged conduct];" and (3) "the nature and immediacy of the government's concerns and the efficacy of the [governmental conduct] in meeting them." Board of Educ. v. Earls, 536 U.S. 822, 830-834 (2002). For the same reasons as explained above in support of the constitutionality of the regulation as an administrative search, the special needs doctrine validates the regulation -- harness race horse owners and trainers and private horse farm owners and training facilities have a sharply diminished privacy interest, the intrusion on their privacy interests is minimal (entry to obtain a biologic sample from an identified horse), and the State's interest in detecting illegal drugging of race 48 horses is great. Accordingly, for this reason also, the regulation does not violate the constitutional rights of licensees or non-licensed horse farm owners or training facilities. POINT III THE CHALLENGED PROVISIONS OF THE OUT-OF- COMPETITION TESTING REGULATION ARE RATIONAL AND SHOULD BE UPHELD The Third Department correctly held that the specific provisions of the regulation at issue here are rationally related to the objectives of preventing the use of performance enhancing drugs to manipulate race results and ensuring the safety of human and equine participants in horse races, and that the provisions are neither arbitrary nor capricious. The Third Department also correctly rejected petitioners' arguments that the regulation improperly penalizes non- licensees, such as private horse farm owners, and that the minimum 10-year license suspension for doping violations is excessive. It is well-settled that a State regulation should be upheld if it has a rational basis and is not unreasonable, arbitrary or capricious. See e.g. Kuppersmith v. Dowling, 93 N.Y.2d 90, 96 (1999). Courts must scrutinize a regulation for "genuine reasonableness and rationality in the specific context presented by the case." New York State Assn of Counties v. Axelrod, 78 N.Y.2d 158, 166 (1991) (citations omitted). To nullify the regulation, petitioners have 49 the "heavy burden of showing that the regulation is unreasonable and unsupported by any evidence. Consolation Nursing Home v. Commissioner of N. Y.S. Dep't of Health, 85 N.Y.2d 326, 333 (1995). Petitioners did not sustain this burden here. A. The regulation is rationally related to the legitimate purposes for which it was adopted. The Board rationally based the out-of-competition regulation on the advice of its expert in response to a critical need to detect and deter the pernicious use of the powerful new doping agents. In Equine Practitioners, a case involving the Board's prior equine drugging regulations, the First Department, in the portion of its decision affirmed by this Court, determined that the challenged rules were reasonably related to the Board's statutory authority and were rational because they were based on the advice of the Board's expert, Dr. Maylin, and were made in response to "the demands of the racing industry." Equine Practitioners, 105 A.D.2d at 220. In that case, as in this one, plaintiffs expert disputed Dr. Maylin's conclusions. Nevertheless, the court concluded that a "court may not substitute its judgment for that of the Board." Id. Similarly, here, the Board determined that the existing drug testing rules were no longer adequate due to the availability and use of new performance enhancing drugs. According to Dr. Maylin, the director of the Board's Equine Drug Testing and Research Program for more than 40 years, who has been 50 acknowledged as the "foremost [expert] in the world on the issue of equine drug pharmacology,'' see Matter of Shuman v. N. Y.S. Racing & Wagering Bd., 40 A.D.3d 385, 386 (1st Dep't 2007) (internal quotation marks omitted), trainers and owners are able to administer drugs that affect a horse's race performance without any means of detection in samples collected on race day (R255). Dr. Maylin explained that because these drugs are not amenable to standard equine drug testing methodologies, the only practical means to detect them is to test horses prior to the race date when the drug is still present in their system (R256-257). Dr. Maylin's affirmation provided a rational basis for the out-of- competition testing regulation. That petitioners and their expert disagree with Dr. Maylin "does not deprive the rules of their rational basis,'' Equine Practitioners, 105 A.D.2d at 220. The Third Department properly found that the regulation was rational and not arbitrary or capricious (R454-455). B. Testing harness race horses within 180 days of racing is rational. The regulation provides that the Board may select horses to be tested for these drugs "from among those [horses] anticipated to compete at New York tracks within 180 days of the date of testing or demand for testing." 9 N.Y.C.R.R. § 4120.17(b). As the Third Department concluded (R455-456), this provision is rational because the record established its scientific and factual 51 basis. Dr. Maylin explained that the doping regimens persist "over several months" (R258) and can alter a horse's performance "long after the drug can be detected" (R255). There is no merit to petitioners' assertion that the 180-day rule effectively allows the Board to test any harness race horse at any time (Br. at 33-37). The terms of the regulation are not so sweeping -- they limit testing to horses that are under the care or control of New York-licensed trainers or owners who anticipate racing their horses at New York tracks within 180 days of the demand for testing. See 9 N.Y.C.R.R. § 4120.17(a), (b). Petitioners' speculation about how the 180-day rule may be applied in hypothetical cases not before the Court is both erroneous and insufficient to invalidate the rule in this facial challenge. The Board allows New York-licensed owners and trainers to enter New York races, no matter where they keep and train their horses. The 180-day provision allows licensees to excuse from sampling horses that they do not expect to race in New York for at least the next 180 days, such as horses that are disabled or injured or those training to race in other jurisdictions (R275, if 9). The lengthy period of exclusion furthers the purposes of the regulation because it deters unscrupulous trainers and owners from asserting that their horses should 52 be exempted from testing based on false claims that the horses will not be raced within the next 180 days. In addition, New York's 180-day rule is more limited than the model rule published by the Association of Racing Commissioners International (ARCI), an organization of governmental horseracing regulators, and the rules of other racing states that have out-of-competition testing rules, such as Arkansas, Illinois, Kentucky, Louisiana and New Jersey, which permit sampling of all horses under the care or control of licensed trainers and owners without any time limitation (R412-413 [citing rules]). 11 Indiana owners may be excused from sampling if they indicate they do not intend to race a horse for 365 days (R413). And contrary to petitioners' claim (Br .. at 35), the 180-day rule does not conflict with the rule that a horse that has not raced for 30 or more days must re-qualify [9 N.Y.C.R.R. § 4113.5]. The requalification rule has no relationship to drug testing; rather, it ensures that horses that are allowed to participate in pari-mutuel racing have a reasonable degree of competence and can demonstrate that they can perform at a speed the bettors expect. Nor does the 180-day rule 11 See, e.g., ARCI model rule 025-022 (any horse under the care and control of a licensed owner or trainer, without advance notice); N.J.A.C. § 13.70-14A.13(b) (New Jersey - any horse under the care and control of a licensed trainer, without prior notice); 810 KAR 1:110(3)(1) (Kentucky - any horse under the care, custody or control of a licensed trainer, without advance notice), reprinted in the Addendum. 53 conflict with the "about to participate" phrase in section 301(2)(a), for the reasons explained in Point I, above, at pp. 33-34. Petitioners mistakenly rely (Br. at 37 n. 13) on the Third Department's decision in Matter of Laterza v. N. Y.S. Racing & Wagering Bd., 68 A.D.3d 1509 (3d Dep't 2009), to support their claim that the 180-day rule is invalid because illicit blood doping is detectable using current testing practices. That case addressed laboratory testing for only recombinant human erythropoietin (rhEPO) or darbepoietin-alfa (DPO). The expert in Laterza testified that his test could detect but not confirm the presence of these drugs within eight days after administration. He did not testify that these two drugs must be administered within eight days of the race to affect a horse's speed, and Dr. Maylin has averred without contradiction that the prohibited drugs can affect the speed of a horse even if administered much earlier (R255, R258-59). Laterza did not address any of the other substances prohibited by the new regulation, and the decision does not contradict Dr. Maylin's testimony that the new doping agents can be administered without fear of detection on race day. In addition, the Third Department observed in this case (R455 & n. 4) that the test in Laterza was very expensive and the court correctly concluded that that the Board was not required to adopt the newest and most costly testing technology. For all of these reasons, 54 the Third Department correctly ruled that petitioners failed to establish that the 180-day rule is arbitrary or capricious. C. The out-of-state 100-mile provision is rational. The Third Department properly upheld the 100-mile rule (R456). Under the regulation, a Board representative or a State track judge can require a licensed trainer or owner to bring to a New York track for testing an eligible horse that is stabled out-of-state at a site within a 100-mile radius of the track. 9 N.Y.C.R.R. § 4120.17(c). As initially proposed in June 2008, the regulation had applied to all horses and had no out-of-state mile limit (R91). During the public comment period, petitioner Standardbred Owners Association ("SOA") objected to the rule as proposed (R95-96). Based on comments it received, the Board "considered whether or not to impose a maximum distance" to require owners and trainers to travel if a horse stabled out-of-state was selected for sampling (R107). Most other states with similar testing regulations, as well as the ARCI model rule, have no mileage limitation and may test the entire population of race horses under the care and control of a licensed owner or trainer. See 11 I.L.A.D.C. § 603.200(a) (Illinois); 71 I.A.C. 8-3-5(a), (e) (Indiana); 810 KAR 1:110(3)(1) (Kentucky); N.J.A.C. § 13:70-14A.13(b) (New Jersey); N.M.A.C. § 15.2.6.9 (New Mexico); ARCI model rule 025-022 (reprinted in Addendum). 55 Based on the comment the Board received from petitioner SOA citing the cost and impracticality of shipping a horse for sampling, and despite the prevailing practice among other states, the Board decided to limit the distance an owner or trainer might be required to travel to a State race track to a maximum of 100 miles. It chose 100 miles "based in part on the fact that many horsemen ship approximately that distance in order to compete at New York tracks" (R107). Because the Board established a rational basis for the 100-mile rule, the Appellate Division properly sustained it. See Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32, 41 (1928) (Holmes, J. dissenting) ("when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark"). In addition, petitioners' speculation that the Board will enter into other States or Canada to conduct drug testing (Br. at 44-45, 56-58) is unwarranted and inappropriate in this facial challenge to the regulation. First, the regulation requires that eligible horses (i.e., those expected to compete in New York within 180 days) that are stabled outside New York but within 100 miles of a New York track may be required to be brought to New York for testing. The regulation does not direct the Board to travel outside New York to test horses that satisfy the regulatory criteria (although it does not explicitly forbid the Board from 56 doing so). But the Board has not done so to date, and any test of its authority should await the attempt. And in fact, the Board explained below that it contemplates generally having out-of-state samples collected on its behalf by host racing commissions, as racing commissions currently do when a horse is located outside their borders, through reciprocal agreements (R169-170). The 100-mile provision is valid. D. The regulation does not subject non-licensee farm owners and training facilities to the cooperation requirement, but the Racing Law would authorize the Board to do so. As the Appellate Division correctly noted, the terms of the regulation mandate cooperation in drug testing only by a "trainer, owner and/or their designees and any licensed racing corporation." 9 N.Y.C.R.R. 4120.17(g). Thus, the reference in subdivision (g) to a penalty for failure to cooperate that may be imposed on "the licensee or other person" must be deemed to be limited to only those persons subject to the cooperation requirement by the terms of the first clause of subdivision (g), that is, a "trainer, owner and/or their designees and any licensed racing corporation."12 Petitioners' contention that the regulations "clearly contemplate" the participation and cooperation of private farm owners (Br. at 52, n.21) is incorrect. The cooperation requirement of the regulation may 12 The penalty for non-cooperation authorized by§ 4120.l 7(g) is distinct from the 10-year suspension imposed on Board licensees pursuant to§ 4120.17(i) when prohibited substances are detected pursuant to§ 4120.l 7(f). 57 be imposed on and enforced against the Board's licensees without requiring the cooperation or punishment of non-licensed farm owners. 13 Only if those farm owners are designees of licensed owners and trainers would the cooperation requirement expressly apply to them. And the Third Department also correctly found (R457-458) that, even if subdivision (g) could be interpreted to apply to non-licensed horse farm owners and training facilities, which the Board does not concede, the Racing Law authorizes the Board to penalize them for non-cooperation regarding drug testing. First, Racing Law§ 310 authorizes the Board to "impose monetary fines upon any corporation, association or person participating in any way in any harness race meet at which pari-mutuel betting is conducted . . . whether licensed by the board or not, for a violation of any provision of this chapter or the rules promulgated by the board pursuant thereto." An unlicensed horse farm owner who leases stalls and training facilities to owners and trainers of harness race horses is reasonably viewed as "participating in any way in any harness race meet" for the purposes of the statute. Second, as explained in Point II(A), above, Racing Law § 101(1) gives the Board regulatory authority over all 13 Because (as explained in Point II above), Board licensees have no constitutional right to refuse to make their horses available for sampling, there is no merit to petitioners' further contention (Br. at 55-56) that licensees are forced to waive their constitutional rights because section 4120.17(g) penalizes them for failing or refusing to cooperate. Nothing in section 4120.17(g) imposes a penalty for the exercise of constitutional rights. 58 "persons engaged" in "horse racing activities," without regard to whether they are required to be licensed. Race horse training facilities and horse farm owners who lease space in their stables to harness race horse owners and trainers are indisputably engaged in horse racing activities and to that extent are subject to the Board's regulation and discipline. Consistent with this broad grant of authority, the Board's power to sanction an unlicensed person was upheld in Matter of Dougherty v. State Harness Racing Comm'n, 286 A.D. 837 (1st Dep't 1955), aff'd 309 N.Y. 992 (1956) (suspending an owner at a time when owners were not licensed). Accordingly, the fact that private horse farm owners are not licensed by the Board in that capacity would not insulate them from sanction for failing to comply with the cooperation requirement of the regulation, if this Court were to find it applicable to them. E. Petitioners' challenge to the penalty for a positive drug test is inappropriate in this facial challenge and, in any event, the penalty is not excessive. In the absence of "extraordinary mitigating circumstances," the regulation specifies a penalty of a minimum 10-year license suspension for a positive drug test in violation of subdivision (f). See 9 N.Y.C.R.R. § 4120.17(i). Petitioners' argument that this penalty provision is excessive cannot be evaluated in the fact-free context of this pre-enforcement facial challenge, and in any event, the penalty is not excessive. 59 A penalty imposed by an administrative agency will only be set aside where the penalty is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness. See Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233 (1974) (internal citations omitted). In evaluating a penalty alleged to be disproportionate, courts must consider the misconduct, failure or turpitude involved, the substantial harm or risk to the public that may ensue, and the deterrent effect that the penalty may have on the individual violator and others in similar situations. Id. at 234-35; see also Matter of S&J Pharmacies, Inc. v. Axelrod, 91A.D.2d1131, 1132 (3d Dep't 1983). In addition, here the regulation explicitly authorizes the Board to take into account "extraordinary mitigating circumstances" in determining whether a 10-year suspension is appropriate. Thus, petitioners' challenge to the severity of the 10-year penalty is emblematic of an as-applied challenge that requires the development of a factual record. Petitioners' challenge cannot be evaluated in this pre-enforcement facial challenge because all the facts relevant to whether the penalty is excessive of necessity are not available to the Court. Any challenge to a 10-year suspension as excessive must await a decision of the Board actually imposing one. In any event, the Appellate Division properly concluded that the penalty for a positive drug test is not disproportionate to the offense (R458). As the court 60 accurately noted, the Board purposely included a lengthy license suspension to deter these serious violations. The Board considered comments it received during the public comment period that the penalty was too harsh, but decided to retain the penalty as proposed because it is consistent with the penalties imposed in New Jersey and Indiana (R107). Perhaps more significantly, the Board considered that the use of these drugs presents a serious risk of harm to race participants and to the public. The harm to the public ranges from the specific harm to the wagering public on any particular fraudulent race, to the more general harm of fostering a public perception that harness horse racing is corrupt, thereby undermining bettor confidence and, ultimately, investment in the entire industry. The Board also properly considered the grave risk that the prohibited drugs pose to both the horses and human race participants. In light of the substantial risk of harm from these drugs, the severe penalty is necessary to deter unscrupulous individuals from engaging in this conduct. Accordingly, the penalty provision is not arbitrary or unreasonable. Further, the absence of a "comprehensive" list of banned substances does not invalidate the penalty provision. The Third Department correctly found that the regulation's definition of prohibited substances was sufficiently definite (R458). In addition, Dr. Maylin explained that it is impossible to produce a comprehensive list of these drugs because new drugs are continuously developed 61 in third-world countries and clandestine laboratories (R257). Thus a comprehensive list developed today soon would be obsolete. Dr. Maylin concluded that it is sufficient to prohibit the broad categories of blood doping agents and gene doping agents (section 4120.17[e]) that are not used for therapeutic treatment, but are used only to enhance race performance (R256). Dr. Maylin rebutted claims that the prohibited substances may have some therapeutic value (R414-16). He further noted that use of a prohibited substance could be excused under the regulation if the owner or trainer established extraordinary circumstances (R414). Petitioners also incorrectly assert that the penalty is disproportionately severe because the regulations do not include a procedure for split sampling (Br. at 54-55). Nothing in the regulations prohibits owners and trainers from requesting, or the Board from providing, split samples allowing trainers and owners to have their own tests done. Board representatives indicated that as a matter of practice the Board has provided split samples and would continue to do so (R165-68, R285). Under these circumstances, the absence of an explicit provision for split samples does not invalidate the penalty provision of the regulation. See Sumner u. Hogan, 73 A.D.3d 618 (1st Dep't 2010) (upholding Board regulation that, among other things, did not provide for split samples), reversing 2008 N.Y. Misc. LEXIS 10816, at * 9 (Sup. Ct. N.Y. Co. 2008) (noting 62 lack of provision for split sampling). Moreover, the Board does not prevent a regulated party from collecting its own out-of-competition samples for its own testing. The penalty provisions of the regulation are valid. Because the Board acted within the authority granted by the Legislature in promulgating the rule and the challenged provisions are constitutional, reasonable and rational, this Court should affirm the Third Department's order in its entirety. CONCLUSION The memorandum and order of the Appellate Division should be affirmed. Dated: Albany, New York March 31, 2014 BARBARA D. UNDERWOOD Solicitor General ANDREW D. BING Deputy Solicitor General KATHLEEN M. ARNOLD Assistant Solicitor General of Counsel Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent Assistant Solicitor General Office of the Attorney General The Capitol Albany, New York 12224 (518) 47 4-3654 Reproduced on Recycled Paper 63 Addendum of Relevant Statutes Racing, Pari-Mutuel Wagering and Breeding Law ("Racing Law") in effect until September 27, 2012: Racing Law former § 101: 1. There is hereby created within the executive department the New York state racing and wagering board, which board shall have general jurisdiction over all horse racing activities and all pari-mutuel betting activities, both on-track and off-track, in the state and over the corporations, associations, and persons engaged therein. Racing Law former § 301: 1. Pursuant to the provisions of sections two hundred twenty-two through seven hundred five of this chapter, the state racing and wagering board shall have the power to supervise generally all harness race meetings in this state at which pari-mutuel betting is conducted. The board may adopt rules and regulations not inconsistent with sections two hundred twenty-two through seven hundred five of this chapter to carry into effect its purposes and provisions and to prevent circumvention or evasion thereof. In order that the rules of harness horse racing may be uniform throughout the United States, the board may adopt the rules and regulations of the United States Trotting Association, in whole or in part, and may adopt such other or different rules as it deems necessary to carry into effect the purposes and provisions of sections two hundred twenty-two through seven hundred five of this chapter. 2. Without limiting the generality of the foregoing, and in addition to its other powers: a. 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. ARSl Racing Law former§ 310: In addition to its power to suspend or revoke licenses granted by it, the state racing and wagering board is hereby authorized and empowered to impose monetary fines upon any corporation, association or person participating in any way in any harness race meet at which pari-mutuel betting is conducted, other than as a patron, and whether licensed by the board or not, for a violation of any provision of sections two hundred twenty-two through seven hundred five of this chapter or the rules promulgated by the board pursuant thereto, not exceeding five thousand dollars for each violation. The board is further authorized and empowered to impose monetary fines, not exceeding five thousand dollars for each violation, upon any such corporation, association or person for a violation of any order issued by the board pursuant to the provisions of sections two hundred twenty-two through seven hundred five of this chapter or the rules promulgated by the board pursuant thereto, provided that a copy of such order shall have been served, either personally or by registered mail, upon the corporation, association or person to whom the same was directed, prior to the occurrence of the violation for which such fine is imposed. Such fines shall be paid into the treasury of the state. The action of the board in imposing any monetary fine shall be reviewable in the supreme court in the manner provided by and subject to the provisions of article seventy- eight of the civil practice law and rules. Racing Law former§ 902: 1. 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 state college within this state with an approved equine science program. 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 denial, suspension, or revocation of a license for racing drugged horses. 2. Notwithstanding any inconsistent provision of law, all costs and expenses of the state racing and wagering board for equine drug testing and research shall be paid from an appropriation from the state ARS2 treasury, on the certification of the chairman of the state racing and wagering board, upon the audit and warrant of the comptroller and pursuant to a plan developed by the state racing and wagering board as approved by the director of the budget. Racing, Pari-Mutuel Wagering and Breeding Law ("Racing Law"), effective September 28, 2012: Racing Law§ 103(2)(d): Horse racing and pari-mutuel wagering. The division of horse racing and pari-mutuel wagering shall be responsible for the supervision, regulation and administration of all horse racing and pari-mutuel wagering activities, as prescribed by articles two through eleven of this chapter. Racing Law§ 301: 1. Pursuant to the provisions of sections two hundred twenty-two through seven hundred five of this chapter, the state gaming commission shall have the power to supervise generally all harness race meetings in this state at which pari-mutuel betting is conducted. The board may adopt rules and regulations not inconsistent with sections two hundred twenty-two through seven hundred five of this chapter to carry into effect its purposes and provisions and to prevent circumvention or evasion thereof. In order that the rules of harness horse racing may be uniform throughout the United States, the board may adopt the rules and regulations of the United States Trotting Association, in whole or in part, and may adopt such other or different rules as it deems necessary to carry into effect the purposes and provisions of sections two hundred twenty-two through seven hundred five of this chapter. 2. Without limiting the generality of the foregoing, and in addition to its other powers: a. The state gaming commission 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. ARS3 Racing Law§ 310: In addition to its power to suspend or revoke licenses granted by it, the state gaming commission is hereby authorized and empowered to impose monetary fines upon any corporation, association or person participating in any way in any harness race meet at which pari-mutuel betting is conducted, other than as a patron, and whether licensed by the board or not, for a violation of any provision of this chapter or the rules promulgated by the board pursuant thereto, not exceeding twenty- five thousand dollars for each violation. The board is further authorized and empowered to impose monetary fines, not exceeding twenty-five thousand dollars for each violation, upon any such corporation, association or person for a violation of any order issued by the board pursuant to the provisions of this chapter or the rules promulgated by the board pursuant thereto, provided that a copy of such order shall have been served, either personally or by registered mail, upon the corporation, association or person to whom the same was directed, prior to the occurrence of the violation for which such fine is imposed. Such fines shall be paid into the treasury of the state. The action of the board in imposing any monetary fine shall be reviewable in the supreme court in the manner provided by and subject to the provisions of article seventy-eight of the civil practice law and rules. Racing Law§ 902: 1. 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 state college within this state with an approved equine science program. The state gaming commission 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 denial, suspension, or revocation of a license for racing drugged horses. 2. Notwithstanding any inconsistent provision of law, all costs and expenses of the state gaming commission for equine drug testing and research shall be paid from an appropriation from the state treasury, on the certification of the chairman of the state gaming commission, upon the audit and warrant of the comptroller and pursuant to a plan developed by the state gaming commission as approved by the director of the budget. ARS4