In the Matter of Mark Ford, et al., Appellants,v.New York State Racing and Wagering Board, Respondent.

Brief

N.Y.November 19, 2014

To be Argued by: ANDREW J. TURRO (Time Requested: 20 Minutes) APL-2013-00325 Appellate Division, Third Department Docket No. 514622 Schenectady County Clerk’s Index No. 0303/2010 Court of Appeals of the State of New York   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 AND WAGERING BOARD, Respondent-Respondent. REPLY BRIEF FOR PETITIONERS-APPELLANTS Of Counsel: ANDREW J. TURRO KIERAN X. BASTIBLE MEYER, SUOZZI, ENGLISH & KLEIN, P.C. Attorneys for Petitioners-Appellants 990 Stewart Avenue, Suite 300 P.O. Box 9194 Garden City, New York 11530 Tel.: (516) 741-6565 Fax: (516) 741-6706 Date Completed: May 13, 2014 TABLE OF CONTENTS Table of Authorities ................................................................................................. .iii PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT ............................................................................................................. 2 POINT 1 ............................................................................................................... 2 IN CONTRAVENTION OF THE SEPARATION OF POWERS DOCTRINE OF THE NEW YORK STATE CONSTITUTION AND WELL-SETTLED RULES OF STATUTORY CONSTRUCTION, THE THIRD DEPARTMENT COMMITTED REVERSIBLE ERROR BY (1) DISREGARDING THE PLAIN AND UNAMBIGUOUS LANGUAGE OF THE UNDERLYING ENABLING LEGISLATION MANDATING THAT EQUINE DRUG TESTING BE CONDUCTED PROXIMATE TO A RACE IN WHICH A HORSE COMPETES AND (2) INSTEAD UPHOLDING THE RULES WHICH VEST THE BOARD WITH SWEEPING, UNBRIDLED AUTHORITY IN EXCESS OF ITS JURISDICTION AS DELEGATED BY THE LEGISLATURE The Board's Expert's Affidavit ................................................................. 7 Racing Law Sections 902(1) and 301(2)(a) ............................................ ll POINT 11 ............................................................................................................ 17 SECTION 4120.17(b) OF THE RULES, WHICH ALLOWS THE BOARD TO SELECT FOR TESTING ANY HORSE "AMONG THOSE ANTICIPATED TO COMPETE AT NEW YORK TRACKS WITHIN 180DAYS," IS ILLUSORY IN THAT IT VESTS THE BOARD WITH THE UNFETTERED AUTHORITY TO CONDUCT EQUINE DRUG TESTING AT ANY TIME -- WITHOUT NOTICE, GEOGRAPHIC LIMITATION, OR FACTUAL BASIS-- IN EXCESS OF ITS DELEGATED AUTHORITY, AND THE REGULATION'S STATED "TIME FRAME" IS ALSO ARBITRARY AND WITHOUT ANY RATIONAL OR SCIENTIFIC BASIS 1 Table of Contents (continued) POINT III .......................................................................................................... 23 THE THIRD DEPARTMENT COMMITTED REVERSIBLE ERROR IN REINSTATING THE RULES -- AND IN PARTICULAR SECTION 4120.17(g) -- BY WHICH THE BOARD HAS UNILATERALLY EMPOWERED ITSELF WITH THE UNBRIDLED AUTHORITY TO CONDUCT RANDOM WARRANTLESS SEARCHES, ON LICENSEES AND NON-LICENSEES ALIKE, AT ANY TIME WITHOUT NOTICE OR FACTUAL PREDICATE, AND WITHOUT ANY GEOGRAPHIC LIMITATION POINT IV .......................................................................................................... 32 THE THIRD DEPARTMENT'S REINSTATEMENT OF THE RULES' SANCTIONING PROVISIONS AS TO NON- LICENSEES AND LICENSEES ALSO MUST BE REVERSED POINTV ............................................................................................................ 40 SECTION 4120.17(c) OF THE RULES UNDULY EXPANDS THE COMPULSORY POWER OF THE BOARD BEYOND THIS STATE'S BORDERS AND INTO CANADA IN EXCESS OF THE BOARD'S JURISDICTION CONCLUSION ........................................................................................................ 42 11 TABLE OF AUTHORITIES Page(s) CASES Anobile v. Pelligrino, 303 F.3d 107 (2d Cir. 2002) ............................................................................... 15 Bd. of Education v. Earls, 536 u.s. 822 (2002) ........................................................................................... 29 Boreali v. Axelrod, 71 N.Y.2d 1 (1987) ............................................................................................... 6 Di Bella v. Di Bella, 47 N.Y.2d 828 (1979) ......................................................................................... 28 DiMeo v. Griffin, 924 F.2d 664 (7th Cir. 1991);judgment reversed upon rehearing .................... 30 DiMeo v. Griffin, 943 F.2d 679 (7th Cir. 1991) .............................................................................. 30 Equine Practitioners Ass'n., Inc. v. N.Y.S. Racing & Wagering Bd., 105 A.D.2d 215 (1st Dep't 1984) ....................................................................... 13 Laterza v. N.Y.S. Racing & Wagering Bd., 68 A.D.3d 1509 (3d Dep't 2009) ...................................................... 18, 20, 21, 22 Lynch v. City of New York, 589 F.3d 94 (2d Cir. 2009) ................................................................................. 29 Matter ofCasse v. N.Y.S. Racing & Wagering Bd., 70 N.Y.2d 589 (1987) ........................................................................................... 5 Matter of Dougherty v. State Harness Racing Comm'n, 286 App. Div. 837 (1st Dep't 1955) affd 309 N.Y.992 (1956) ........................................................ 35 Matter of Medical Secy. of State of N.Y. v. Serio, 100 N.Y.2d 854 (2003) ......................................................................................... 6 Matter of Pell v. Board of Educ., 34 N.Y.2d 222 (1974) ......................................................................................... 35 iii Matter of Sullivan County Harness Racing Assn v. Glasser, 30 N.Y.2d 269 (1972) ........................................................................................... 5 New York City Health and Hosps. Corp. v. McBamette, 84 N.Y.2d 194 (1994) ......................................................................................... 17 Palmieri v. Lynch, 392 F.3d 73 (2d Cir. 2004) ........................................................ 30 People v. Cosme, 48 N.Y.2d 286 (1979) ......................................................................................... 27 Skinner v. Railway Labor Executives' Assn., 489 U.S. 602 (1989) ........................................................................................... 29 U.S. v. Chirino, 483 F.3d 141 (2d Cir. 2007) ............................................................................... 28 U.S. v. Martinez-Fuerte, 428 u.s. 543 (1976) ........................................................................................... 29 Wein v. Levitt, 42 N.Y.2d 300 (1977) ......................................................................................... 28 STATUTES CPLR §§7803(1)-(5) ................................................................................................ 18 Racing Law Section 301(1) ............................................................................... 14, 15 Racing Law Section 301(2)(a) .......................................................................... passim Racing Law Section 310 ..................................................................................... 32-35 Racing Law Section 902(1) .............................................................................. passim Racing Law §101(1) ............................................................................................... 2-5 STATE RULES AND REGULATIONS 9 NYCRR §4120.2 ....................................................................................... 13, 36, 37 9 NYCRR §4120.2(h) ....................................................................................... passim 9 NYCRR §4120.17(b) ..................................................................................... passim iv 9 NYCRR §4120.17(c) ............................................................................................ 17 9 NYCRR §4120.17(e)(3) ................................................................................. 36,42 9 NYCRR §4120.17(g) ............................................................................... 23, 31, 32 9 NYCRR §4120.17(g)(1)-(4) ................................................................................. 34 9 NYCRR §§4120.17(i) .......................................................................................... 17 UNITED STATES CONSTITUTION Fourth Amendment ............................................................................... 17, 23, 28, 30 N.Y. Const. Art. III §1 ........................................................................................ 3, 16 MISCELlANEOUS DHRC Rules 8.7.2.2 and 8.7.2.4(Delaware) ........................................................... 38 11 Ill. Adm. Code 603.120 (Illinois) ....................................................................... 38 11 Ill. Adm. Code 603.200(a) ................................................................................. 26 71 lAC 8-3-5(g)(3) (Indiana) .................................................................................. 38 810 KAR 1:110(4)(4) (Kentucky) ........................................................................... 26 810 KAR 1:110(5)(6) (Kentucky) ........................................................................... 38 34 LR 1716(B) (Louisiana) ..................................................................................... 38 N.J.A.C. 13:70-14A.13(b) (New Jersey) ................................................................ 26 NMAC 15.2.6.9 (G)(7) (New Mexico) ................................................................... 26 NMAC 15.2.6.10(B)(C) (New Mexico) ............................................................. 38-39 v PRELIMINARY STATEMENT Petitioners-Appellants respectfully submit this brief in reply to the brief submitted by the respondent Board. To the extent practical, this reply brief avoids restating arguments set forth in petitioners' brief previously filed with this Court (the "Main Brief') and addresses only arguments raised by respondent's brief. 1 As has been emphasized before every court since commencing this proceeding, it is the legal validity of the Rules and not the wisdom of equine drug testing that the petitioners challenge by this action. Each of the petitioners firmly supports drug testing as well as the importance of assuring both fairness and integrity in horse racing. At the same time, drug testing rules and regulations must likewise be fair and reasonable to all concerned. Petitioners' challenge to the Rules seeks no more than a fair and reasonable equine drug testing program that provides the safeguards and protections guaranteed by law. 1 This Reply Brief adopts the nomenclature of the Main Brief previously submitted in this matter on behalf of Petitioners-Appellants. ARGUMENT POINT I IN CONTRAVENTION OF THE SEPARATION OF POWERS DOCTRINE OF THE NEW YORK STATE CONSTITUTION AND WELL-SETTLED RULES OF STATUTORY CONSTRUCTION, THE THIRD DEPARTMENT COMMITTED REVERSffiLE ERROR BY (1) DISREGARDING THE PLAIN AND UNAMBIGUOUS LANGUAGE OF THE UNDERLYING ENABLING LEGISLATION MANDATING THAT EQUINE DRUG TESTING BE CONDUCTED PROXIMATE TO A RACE IN WHICH A HORSE COMPETES AND (2) INSTEAD UPHOLDING THE RULES WHICH VEST THE BOARD WITH SWEEPING, UNBRIDLED AUTHORITY IN EXCESS OF ITS JURISDICTION AS DELEGATED BY THE LEGISLATURE According to its own Regulatory Impact Statement (R. 105), the Board's purported authority to issue promulgate the Rules rests in Sections 101(1), 301(2)(a) and 902(1) of the Racing Law. As demonstrated through petitioners' Main Brief (pp. 25-32), while Section 101(1) confers upon the Board "general jurisdiction over all horse racing activities" in the State, Sections 301(2)(a) and 902(1) confirm that equine drug testing must be conducted reasonably proximate, in time and place, to the harness race horse's participation in a particular race. Notably, however, the challenged Rules constitute an unprecedented sweeping regulatory scheme through which the Board has unilaterally vested itself with the unfettered authority to conduct equine drug testing without any notice or factual predicate, on any race horse, under the care of a licensed trainer or owner, 2 anywhere in the world and at any time, regardless of that horse's ascertainable potential participation in any particular race. As discussed in petitioners' Main Brief (pp. 25-32), in promulgating this regulatory scheme, the Board exceeded its jurisdiction and violated the State Constitution's separation of powers doctrine (N.Y. Canst. Art. III § 1) by disregarding the plain and unambiguous mandates of the underlying enabling legislation. The respondent's brief is conspicuously silent on the fundamental principles of statutory construction discussed in petitioners' Main Brief. In urging affirmance, the Board instead focuses on Racing Law § 101 ( 1)' s general authorization language to the exclusion of Sections 301(2)(a) and 902(1) -- which are the only statutory provisions in the Racing Law that authorize the Board to promulgate equine drug testing regulations. While the Board concedes (Brief, pp. 6-8), as it must, that Section 301(2)(a)'s authority to promulgate regulations is expressly intended to prevent the use of drugs to affect the speed of horses "in races in which they are about to participate," respondent -- relying exclusively on its expert's hopelessly conclusory affidavit that provides no supporting empirical, scientific or factual basis for the Board's regulatory program (see pp. 7-11, infra) -- contends (see, e.g., Brief, p. 15 and R. 254, <][15) that various unspecified "drugs and compounds" that implausibly defy comprehensive identification "have the potential to be efficacious for many weeks or longer" and to purportedly escape 3 detection in race day testing. Based on this speculative premise, the Board claims (Brief, p. 30) that it "must conduct [equine drug] tests well before entry to be able to determine [a race horse's] condition at the time of entry." Indeed, the Board's unduly expansive (and illusory) testing time frame (discussed further at pp. 17-22 herein) authorizes testing of horses not even mature enough to commence their racing careers, much less any which might somehow be deemed "about to participate in any race" six months hence. The Board also attempts to extend its testing powers by misconstruing, whether inadvertently or otherwise, the enabling prov1s1ons of Section 902( 1) which expressly and specifically authorize the Board "to promulgate regulations necessary to implement" its provisions concerning "equine drug testing at race meetings." The Board disregards that the plain and unambiguous language of the above enabling statutes (whether read together or separately) permit drug testing at race meetings, but only for the purpose of the horse's racing condition in a specific race in which the tested horse is "about to participate." Instead, the Board asserts that Section 101(1) confers it with virtually absolute power to test any race horse under the care of a licensee wherever and whenever it sees fit, without any reasonable safeguards or standards! The Board's various untenable position provides no basis for affirmance. 4 Respondent's claim (Brief, p. 27 and fn. 8 therein) suggesting that Section 101(1)'s grant of "general jurisdiction" over racing activities is an all- encompassing grant of power and "authorizes the Board" to conduct equine drug testing "with no limit as to time or place in the state" is incorrect and incompatible with the other provisions of the Racing Law that expressly address and define the Board's authority to promulgate equine drug testing regulations. Not only do the Board's overreaching Rules vest it with the power to compel horses stabled out of state to be returned to New York for testing (see Main Brief, pp. 56-58 and pp. 40-41, infra), but as fully discussed elsewhere (pp. 23-31, infra), they unduly empower the Board to enter into other states and foreign countries to perform unannounced, warrantless searches (which the Board itself has acknowledged [Brief, pp. 56-57]). As such, the Rules permit the Board (1) to compel the return of out-of-state horses not entered in New York or who have no declared expression of entering a particular race and (2) to enter into other states and countries and to test horses, as a practical matter, however it sees fit. 2 2 In its Brief (pp. 28-29), the Board cites to two decisions of this Court -- Matter of Sullivan County Harness Racing Assn v. Glasser, 30 N.Y.2d 269 (1972) and Matter of Casse v. N.Y.S. Racing & Wagering Bd., 70 N.Y.2d 589 (1987) -- as legal support for affirming the Third Department's Order. Notably, neither case provides any basis to uphold the Board's overreaching regulatory scheme or the unfettered authority it seeks to appropriate to itself under the Rules. For example, while the Court in Matter of Sullivan discussed the "broad power [of the Board] to regulate the harness industry," it discussed the issue in terms of the Board's licensing authority. See 30 N.Y.2d at 276-277. And, while Matter of Casse specifically addressed the State's interest in assuring fairness and integrity in horse racing through equine drug testing, the Casse Court addressed the issue of a trainer's liability where 5 As was detailed in petitioners' Main Brief (pp. 28-32), the relevant enabling legislation has established a "primary standard" that endows the Board "to fill in the interstices by proscribing rules and regulations consistent with that legislation." Matter of Medical Secy. of State of N.Y. v. Serio, 100 N.Y.2d 854, 865 (2003) quoting Matter of Nicholas v. Kahn, 47 N.Y.2d 24, 31 (1979). That "primary standard" is established by the clear and unambiguous "proximity mandates" that are part and parcel of Racing Law Sections 902(1) and 301(2)(a) -- the only two statutory provisions in the Racing Law that specifically authorize and address the Board's regulatory authority to prescribe rules and regulations concerning the illegal administration of drugs and its equine drug testing procedures. 3 Thus, full consideration of both Sections 902(1) and 301(2)(a) is required to assess the a horse tested positively for a prohibited substance on race day at the track following his participation in the relevant race. See 70 N.Y.2d at 592-594. Thus, neither case remotely suggests that the Board is vested with the unfettered power to conduct equine drug testing on virtually any race horse at any time and at any location. 3 Ironically, the Board (Brief, p. 28) cites to this Court's decision in Boreali v. Axelrod, 71 N.Y.2d 1 (1987) in arguing that the Rules come within an appropriate delegation of regulatory authority to it from the Legislature. In Boreali, this Court determined that the Public Health Council's promulgation of anti-smoking regulations, violated the separation of powers doctrine for the very reasons presented by the controversy before the Court. As the Supreme Court below observed (R. 15), as was the case in Boreali, here the Board has exceeded its broad grant of authority because it "did not merely fill in the details of broad legislation describing the overall policies to be implemented. Instead, the [agency] wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislature guidance." 71 N.Y.2d at 13. In so doing, the Board effectively stepped into the role of the legislature and determined, solely on its own, new "standards" for off-track drug testing of virtually a race horse regardless of any objective and ascertainable proximity to its participation in any actual race. This Court's stated reasoning in Boreali in support of finding the PHC' s regulations had violated the separation of powers doctrine fully obtains to the case at hand. 6 appropriate scope of the Board's drug testing authority under the applicable enabling legislation. In response, the Board, solely based on the vague and conclusory claims advanced in the affidavit of its expert, repeatedly asserts (see, e.g., Brief, pp. 14-16, 27, 29-30, 32-35) that its out-of-competition testing program 1s necessary to address the purportedly growing use in racing of new types of substances that have long-lasting pharmacological effects and the potential to escape race-day testing (that under the enabling legislation can only be performed on race day). The Board further argues (Brief, pp. 26-34) that neither Section 902(1) nor 301(2)(a) restrict its testing authority to any proximity requirements. More specifically, despite Section 902(1)'s plain language, the Board contends that its statutory history purportedly reflects that this provision was not intended to so limit the Board's testing powers. As was demonstrated in petitioners' Main Brief, and as is further established below, neither the Board's expert's conclusory affidavit nor the legal authorities relied upon by the Board, provide any basis to affirm the Third Department's Order. The Board's Expert's Affidavit As the Board itself acknowledges (Brief, p. 51), the affidavit of George A. Maylin (the "Maylin Affidavit") serves as the Board's sole justification for the promulgation of the Rules and their purported "rational basis." This seven-page 7 submission (R. 253-259) is couched in broad, conclusory generalities and fails to set forth a single specific fact or any particularized evidence in support of the Board's sweeping, overbroad, and unprecedented regulatory scheme. In fact, the Maylin Affidavit presents no empirical proof, offers no supporting specific data or study, refers to no peer-reviewed articles, and proffers no specific evidence regarding the relevant pharmacological character or efficacy of any particular substance as it relates to equine drug testing concerns that cannot be addressed and resolved through race day testing. No particulars to justify the unwarranted and unauthorized extension of the Board's jurisdiction have been provided and this confmns that the submission is more science "fiction" than science. For example, the Maylin Affidavit: • fails to provide any specific evidence (including any peer-reviewed article, veterinarian and/or medical study, or other reliable scientific data) addressing the pharmacological effect, efficacy period, and/or detectability of any particular "protein and peptide" based drug that is claimed to "present a major challenge to the integrity and safety of horse racing" that cannot be "readily solved" without pre-race, out-of- competition testing (R. 255). • presents no specific facts or other evidentiary to support the vague, non-specific declaration "[t]hat there is strong investigatory and 8 circumstantial evidence that [the targeted] doping agents are often used in horse racing, but there have been very few successful laboratory findings" (R. 255). • while claiming generally that the targeted substances "are characterized by the potential to be efficacious for many weeks or longer, to alter a horse's physiology and natural ability to race, and to effect performance long after the drug can be detected," fails to proffer any specific supporting empirical, scientific, medical or factual data relating to any of these bald assertions and fails to otherwise offer any evidence that lends any support for the Board's 180-day testing time frame (R. 25 5). • generally pronounces as fact that "[p ]rotein-based doping agent drug regiments frequently persist over several months to increase the overall effect and to prolong the effect [of the substance] for a longer period of time when administrations can be no longer detected," without offering any supporting evidence -- medical, scientific, factual, or otherwise -- relating to any particular substance and without setting forth any evidentiary basis providing any support for the Board's self-designated 180-day testing time frame (R. 258). 9 • admittedly engages in rank speculation by stating that while "it cannot be proven" some unidentified drugs "can be effective at much lower doses when administered in combination with each other" and thus escape race-day testing (R. 258-259).4 • states as a fact (which has been conclusively contradicted in these proceedings )5 that none of the substances encompassed by the Rules have any "recognized veterinary use" and "are used in a racing horse solely to secure an unfair advantage in races" (R. 255). Put simply, the May lin Affidavit reveals that the Board's alarmist claims regarding the purported pharmacological necessity to enact its regulatory scheme to preserve the integrity of horse racing and safeguard the wagering pubic are based not on any informed medical or scientific factual data or studies, but instead on speculation, conjecture and surmise. Whether the product of overzealousness or inartful draftsmanship, the Maylin Affidavit provides no legal justification to uphold the Rules. Notably, this submission was drafted post-promulgation and 4 Indeed, by so stating (R. 258-259), the Board admits that it needs to conduct further research to establish a "new line" of prohibitions not based on a single medication, but upon combinations of medications. 5 As discussed fully infra (see pp. 35-37), while he initially claimed through the Maylin Affidavit (R. 255, <]I9) that the substances encompassed by the Rules "have no recognized veterinary use in horse racing and are used in a racing horse solely to secure an unfair advantage in races," the Board's expert later conceded the inaccuracy of this sworn statement and acknowledged that the Rules prohibit numerous medications used to treat race horses and which have widely-recognized and accepted therapeutic value (see pp. 35-37, infra and record citations therein). 10 conveniently details in lockstep fashion with what the Board has set forth as "necessary" in a similarly scientifically unsubstantiated manner. As further discussed herein, if permitted to stand, the Rules will serve only to unduly empower an agency to act in excess of its jurisdiction and in derogation of settled legal principles and precedent as well as the privacy rights and interests of individuals subjected to this overreaching regulatory scheme. Racing Law Sections 902(1) and 301(2)(a) Respondent's claim (Brief, pp. 30-32) that the legislative history of Section 902( 1) establishes that the statute is not relevant to the scope of the Board's equine drug testing authority is without merit. The Bill Jacket for the 1993 amendment of this legislation makes clear that the authority granted to the Board to conduct equine drug testing under Section 902(1) contemplates only testing at race tracks. It expressly notes that the underlying legislation: "[A]mends Section 902 of the Racing, Pari-Mutuel Wagering and Breeding Law to require equine testing at all race tracks in a manner proscribed by the Racing and Wagering Board." (Bill Jacket, L.1993, ch.60, pp.6, 12 at p.000012 [emphasis supplied]). A review of these legislative materials further confirms that the Bill's express stated "purpose" refers to "[equine] testing at race meetings overseen by the State Racing and Wagering Board." See Sponsor's Mem., Bill Jacket (Bill No. A9954) L. 2010, p. 0005. As the Supreme Court below correctly concluded (R. 17), "horses stabled 11 'off-track' on privately-owned farms as much as six months preceding a race are neither at race meetings nor at facilities overseen by the Board." In a related argument, the Board also asserts (Brief, p. 32) that Section 902( 1)' s reference to "equine drug testing at race meetings" was not intended by the Legislature to require testing samples to be collected "at race meetings" because actual testing is not conducted "'at' the race meetings." This claim ignores the meaning of "testing" as commonly understood and used not only by the general public, but also by the Board itself! Indeed, the Board's own public announcement of the Rules (R. 99) and the historical legislative materials of the State Racing Commission both confirm the common understanding that the initial phase of drug testing - i.e., the collection of test samples - has always been understood as part of the "testing process." For example, the Board's own December 21, 2009 Notice announcing its adoption of the Rules (R. 99) declares that the regulations "will authorize the testing of horses on the grounds of a New York State racetrack as well as those stabled off the grounds of the racetrack" (emphasis added). This common understanding of the term is further evidenced by the 1935 State Racing Commission Annual Report. This Report discusses the routine practice of collecting test samples at race tracks and expressly notes that "[t]ests taken at racetracks were analyzed and reported within two days of reception of the sample at the laboratory [located at "157 Chambers Street, 12 New York City]" 1935 SRC Annual Report at p. 40. The Board's self-serving semantic argument attempting to redefine the term "testing" so as to avoid the provisions of Section 902(1) is meritless. Nor does the holding of Equine Practitioners Ass'n., Inc. v. N.Y.S. Racing & Wagering Bd., 105 A.D.2d 215 (1st Dep't 1984) support the Board's position that Section 902(1) is irrelevant to the scope of its equine testing authority. Respondent fallaciously asserts (Brief, pp. 30-31) that because the court in Equine Practitioners did not discuss Section 902(1) in its opinion, the First Department's decision somehow supports the proposition that Section 902( 1) is not relevant to the scope of Board's equine drug testing authority. Notably, the Equine Practitioners case exclusively concerned the "Restricted Use" drug rules under 9 NYCRR §4120.2 (see R. 390-396) and involved "clearance times" of drugs - that is, the detection of substances by equine drug tests conducted on a horse race on race day and at the racetrack immediately following the race. In fact, in its decision, the First Department emphasized that the issue before it concerned testing rules that "apply only to horses entered in a race." Id. at 220. Given the actual facts presented in the Equine Practitioners case, there was simply no reason for the First Department to discuss Section 902(1). The Board's contrary suggestion is wholly unwarranted. 13 Similarly, the Board's various efforts to discount the significance of the temporal proximity requirements of Section 301(2)(a) -- which authorizes the Board to prescribe regulations to prevent "the administration of drugs ... for the purpose of affecting the speed of horses in races in which they are about to participate" -- are also unavailing (emphasis added). There is simply no evidence or fact presented by the Board (through its expert's affidavit or elsewhere in the record) that supports the Board's claim that off-track, pre-race testing-- much less testing six months before a horse is "anticipated to race" -- is an appropriate or legal exercise of the Board's authority. In its brief (pp. 27-28), the Board attempts to diminish the force of the temporal requirements set forth in Section 301(2)(a), by asserting that this provision expressly is not intended to "limit[ ] the generality" of Section 301(1). Significantly, while Section 301(1) vests the Board with authority to "supervise generally all harness race meetings" (emphasis added), it also expressly limits the Board's rulemaking authority by permitting only implementation of regulations "not inconsistent with" a range of statutes that includes Section 301 itself (emphasis added). Of course, 301(2)(a) specifically limits drug testing to ensure it relates to the racing performance "of harness race horses in races in which they are about to participate" (emphasis added). Thus, the express provisions of the 14 statutes reinforce, rather than diminish, the salient proximity mandates of the legislation, including those expressly set forth in Section 301(2)(a). Notably, the Second Circuit has observed that the Board's specific authority to promulgate equine drug testing regulations as conferred by the Legislature lies in Sections 301(2)(a) and 902(1) of the Racing Law. As the Court observed in Anobile v. Pelligrino, 303 F.3d 107 (2d Cir. 2002): In connection with [its] broad grant of authority [to the Board], the New York Legislature authorized the Board to carry into effect the purposes of sections 222 through 705 of the Racing Law. Id. §301(1). In addition to those general regulatory powers, section 301(2) specifically authorizes the Board to "prescribe rules . . . 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." Id. §301(2)(a). Further, "[i]n order to assure the public's confidence and continue the high degree of integrity in racing at the pari-mutuel betting tracks," the Legislature authorizes "equine drug testing at race meetings" and authorizes the Board to issue regulations necessary to implement such testing. /d. §902( 1 ). 303 F.3d at 111 (emphasis supplied). As the Second Circuit correctly observed, the Board's authority to promulgate equine-testing regulations lies in these two enabling statutes that specifically address the scope of the Board's authority, define its limits, and set forth relevant applicable standards for such testing. To adopt the Board's contrary position effectively nullifies those statutorily-mandated standards. 15 For all of the foregoing reasons, and those set forth in Point I of petitioners' Main Brief, the Board, in promulgating the Rules, exceeded its jurisdictional authority as delegated by the Legislature and violated the separation of powers doctrine of the New York State Constitution (N.Y. Const. Art. III §1). Accordingly, this Court should reverse so much of the Third Department's Order as appealed from by petitioners. 16 POINT II SECTION 4120.17(b) OF THE RULES, WHICH ALLOWS THE BOARD TO SELECT FOR TESTING ANY HORSE "AMONG THOSE ANTICIPATED TO COMPETE AT NEW YORK TRACKS WITHIN 180DAYS," IS ILLUSORY IN THAT IT VESTS THE BOARD WITH THE UNFETTERED AUTHORITY TO CONDUCT EQUINE DRUG TESTING AT ANY TIME WITHOUT NOTICE, GEOGRAPHIC LIMITATION, OR FACTUAL BASIS -- IN EXCESS OF ITS DELEGATED AUTHORITY, AND THE REGULATION'S STATED "TIME FRAME" IS ALSO ARBITRARY AND WITHOUT ANY RATIONAL OR SCIENTIFIC BASIS Petitioners' Main Brief (pp. 33-38) demonstrated that the six-month time frame of the Rules (9 NYCRR §4120.17[b]) --which permits the Board to select for drug testing any harness race horse under the care of a licensed trainer or owner that is "anticipated to compete at New York tracks within 180 days ... " -- is illusory, arbitrary, without any rational basis, and in excess of the Board's delegated testing authority.6 Indeed, as fully discussed therein (Main Brief, 6 In its brief, (see, e.g., pp. 52, 56), the Board mischaracterizes several of petitioners' challenges (such as, for example, the challenge to the Rules' arbitrary 180-day testing time frame [9 NYCRR §4120.17(b)], its arbitrary 100-mile provision [9 NYCRR §4120.17(c)] solely as pre-enforcement facial constitutional attacks. By this appeal, in addition to the constitutional challenges presented herein based on, inter alia, the separation of powers doctrine and Fourth Amendment, petitioners' challenges to the Rules also involve traditional and well-recognized Article 78 challenges that are decidedly distinct from a facial constitutional challenge. See, e.g., New York City Health and Hasps. Corp. v. McBarnette, 84 N.Y.2d 194, 204 (1994) (under Article 78, a party challenges "a quasi-legislative act by an administrative agency ... on the ground that it 'was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion"). As the record makes clear, below the petitioners established that the Rules were (i) promulgated in violation of lawful procedure; (ii) affected by error of law; and (iii) arbitrary and capricious. Likewise, various aspects of the Supreme Court's determination that these regulations were, inter alia, "unlawful," "lacking in reason," "arbitrary" and in excess of the Board's power are founded 17 pp. 33-38), by promulgating the Rules with this illusory testing time frame, the Board has appropriated to itself the unbridled authority to test (without any advance notice or factual predicate) virtually any harness horse under the care and control of a licensed trainer, located anywhere in the world, and at any time -- and regardless of its purported participation in any future race (and, in fact, whether it is even mature enough to have commenced a racing career!). In response, the Board asserts (Brief, pp. 50-51) that the Maylin Affidavit "provided a rational basis for the out-of-competition testing regulation" and that the Appellate Division's holding in Laterza v. N.Y.S. Racing & Wagering Bd., 68 A.D.3d 1509 (3d Dep't 2009), previously discussed in petitioners' Main Brief (p. 37 at n. 13), is neither determinative nor relevant to this case. As a threshold matter, the hopelessly conclusory and speculative seven-page Maylin Affidavit (R. 253-259) reveals the abject poverty of the Board's claim of rationality. As is detailed above (pp. 7-11, supra), the Maylin Affidavit, while long on generalities, provides no specific facts or any references to any empirical data, medical findings, or peer-reviewed studies to support of its stated conclusion which the Board relies upon to justify for its entire regulatory program. It instead resorts to vague and conclusory generalities, refers to unidentified "strong on the traditional statutory grounds set forth in CPLR §§7803(1)-(5). The unconstitutional "in every conceivable application" standard referred to by the Board's brief (pp. 25-26) is not applicable to those challenges raised herein. 18 investigatory and circumstantial evidence" of purported improper use of "doping agents" (R. 255, <][9),7 and claims (without providing any supporting data, scientific findings, pharmacological studies, or other factual proof) that certain unspecified substances affect a horse's "natural ability to race" and "have the potential to be efficacious for many weeks or longer." Simply stated, the linchpin of the Board's "justification" for the Rules is devoid of any specific empirical, evidentiary or factual support. Rather than providing any justification for a six-month testing time frame, the Maylin Affidavit -- at best-- confirms that some of the targeted substances (whatever they may be) have "the potential to be efficacious for many weeks or longer." As such, the vague and non-specific "factual assertions" set forth in the Maylin Affidavit provide no basis to uphold the legal validity or rationality of the Board's 180-day testing rule. Moreover, while baldly asserting limits the Board's testing authority by allowing it only to rest horses anticipated to race "at New York tracks within 180 days of the demand for testing" (Brief, p. 52), nowhere does the Board articulate or supply any proof as to how it will ascertain those horses "anticipated" to race within the regulation's time frame. Indeed, the Rules fail to provide any 7 As discussed elsewhere, the May lin Mfidavit also inaccurately claims that none of the protein and peptide substances covered by the Rules have a recognized veterinary use (see p. 10, supra and pp. 36-37, infra). 19 relevant objective criteria or standards to make that determination. The wholesale absence of any such standards further confirms the illusory, arbitrary, and wholly irrational nature of this Rule. The Board's facile attempt (Brief, p. 54) to dismiss the Third Department's decision in Matter of Laterza v. New York State Racing & Wagering Bd., 68 A.D.3d 1509 (3d Dep't 2009) is also unpersuasive. Indeed, the Laterza case reveals the fallacy of the May lin Affidavit's broad assertion (R. 256, 113) "that the only practical means of detecting protein based drugs is to test horses at some time prior to competition when the drug is still present in the body at a detectable level." Notably, Laterza involved a race that took place on April 17, 2007, in which the relevant harness horse submitted to routine post-race urine testing and the relevant dispute centered upon the Board's general seven-day proscribed period, set forth in its Restricted Use regulations for substances without specific clearance times. 68 A.D.2d at 1512-1513 (seeR. 396 at 9 NYCRR §4120.2[h]). In its decision, the Third Department specifically upheld as legally reliable what was in 2007 a new drug test, referred to as an ELISA antibody screening test, that detects the presence of the two relevant blood doping agents (rhEPO/DPO) (which the Board continues to claim -- over seven (7) years hence -- are not detectable by race day testing). Notably, in its decision, the Appellate Division not only upheld the reliability of the underlying drug testing procedures, but also observed that the racehorse's drug 20 test, which was conducted at the track immediately following the race, confirmed that the horse's blood tested positive for these purportedly undetectable doping agents (rhEPO/DPO). Laterza v. New York State Racing and Wagering Bd., supra, 68 A.D.3d at 1512-1513. In a transparent, heavy-handed attempt to avoid the impact of the Laterza holding, the Board resorts to deceptive tactics. For example, the Board states as fact (Brief, p. 54) "that the expert in Laterza testified his test could detect but not confirm the presence of drugs within eight days after administration." This is purposely misleading. While the Board's expert in Laterza was not able "to confrnn the presence of the [relevant] substance outside of seven days ... ", the Court also remarked that the Board had retained the expert "solely to confirm the presence of this substance and not to ascertain the timing of when it was administered" (!d. at 1512), which, of course, is critical as the time of administration, the sequence of administration, and dosage are highly relevant to the pharmacological effect of a substance on a horse.8 Notably, notwithstanding this fact, this Board expert "opined to a reasonable degree of certainty that the substance had been administered within seven days of the race. Id. at 1512. Significantly, in annulling the trainer's suspension in Laterza, the Third 8 As a practical matter, this point is a matter of common sense based on everyday experience. If any one of us took an aspirin or coumadin 180 days ago, the mere possibility that a remnant of such drug might be detectable today would not alter the fact that the drug would no longer have any pharmacological effect. 21 Department specifically observed that the failure of the Board's proof at the underlying hearing was not the witness' inability to testify that the prohibited substance had been administered in violation of the Restricted Use regulations (9 NYCRR §4120.2[h]), but rather because the Board's attorney "never elicited from [the expert] how he was able to determine that rhEPO/DPO was administered within the seven days." Laterza v. New York State Racing & Wagering Bd., supra, 68 A.D.3d at 1512. Put simply, the Appellate Division's decision provides unequivocal confirmation that substances the Board asserts are not detectable by race day testing have, in fact, been detectable for close to a decade! Accordingly, for all of the foregoing reasons, and those set forth in Point II of petitioners' Main Brief, the Third Department's reinstatement of 9 NYCRR §4120.17(b) and its illusory 180-day testing time frame, should be reversed in all respects. 22 POINT III THE THIRD DEPARTMENT COMMITTED REVERSIBLE ERROR IN REINSTATING THE RULES -- AND IN PARTICULAR SECTION 4120.17(g) -- BY WHICH THE BOARD HAS UNILATERALLY EMPOWERED ITSELF WITH THE UNBRIDLED AUTHORITY TO CONDUCT RANDOM WARRANTLESS SEARCHES, ON LICENSEES AND NON-LICENSEES ALIKE, AT ANY TIME WITHOUT NOTICE OR FACTUAL PREDICATE, AND WITHOUT ANY GEOGRAPHIC LIMITATION The Main Brief (pp. 39-50) established that the Third Department committed reversible error by reinstating 9 NYCRR §4120.17(g) which empowers the Board to conduct warrantless searches on both Board licensees and non-licensees at any time without any notice, factual predicate, or geographic limitation. As demonstrated therein, the Rules' provisions authorizing warrantless searches do not provide any protection against unchecked and arbitrary conduct of Board agents and violate settled law that requires adequate limitations and/or safeguards against arbitrary and/or abusive governmental enforcement. Moreover, as is specifically discussed in petitioners' Main Brief (pp. 48-49), the Third Department's determination (R. 457) that the purported regulatory duty of Board licensees "to take any steps necessary to authorize access" by seeking consent of non-licensed private farm owners somehow eviscerates the non-licensee's Fourth Amendment rights is unprecedented, unwarranted, and contrary to law. 23 In its response (Brief, pp. 39-41), the Board-- again relying exclusively on the fatally flawed Maylin Affidavit -- argues that the Rules' warrantless search provisions are "narrowly tailored" to serve the State's interests in detecting and deterring the use of a new generation of performance-enhancing drugs in harness race horses. With circular reasoning, the Board also fallaciously contends (Brief, p. 41) that despite the wholesale lack of any objective standards or safeguards provided in the Rules to prevent arbitrary and/or abusive enforcement by the Board, its regulatory procedure is constitutional because "the regulation makes clear to both licensees and non-licensees that the inspections at issue here are conducted pursuant to the Board regulation and thus are not discretionary or arbitrary acts by government officials." The Board now also further asserts (Brief, pp. 47-49), for the first time, that the provisions of the Rules permitting random, warrantless searches without any factual predicate, are permissible under the "special needs" exception to the warrant requirement. As was previously demonstrated, and as is further detailed herein, the Board's various arguments in support of affirmance are without merit and the Supreme Court's determination should be reinstated. First of all, for the reasons detailed above, the Board's exclusive reliance on the contents of the May lin Affidavit to validate its claim that the Rules' warrantless searches further a compelling State interest should be rejected. While the State has 24 an interest to ensure the fairness and integrity of horse racing, nothing about the wholly speculative Maylin Affidavit provides any assurance that such goals are advanced by permitting the Board to conduct equine drug testing on virtually any horse, whether about to race or not, wherever and whenever it wants. For this reason alone, the Board's regulation should be annulled. Nor are the warrantless inspections contemplated by the Rules necessary to further the regulatory scheme. Again, to the extent that the Board relies on the Maylin Affidavit to do so, that submission is woefully inadequate to substantiate any such "need." Moreover, the Board's claim (Brief, p. 40) that to obtain a warrant or provide any advance notice of testing would frustrate the Board's legitimate interest to detect targeted substances is without basis. While the Board speculates (Brief, p. 40) that the need to procure a warrant "could alert unscrupulous owners and trainers to the impending drug test," it fails to articulate any legitimate and factually supported need to justify its warrantless program. It is indeed hard to fathom how the clandestine presentation to a judge or magistrate of facts constituting probable cause of a suspected medication violation could alert the unscrupulous and frustrate the Board's intentions. Likewise, many out-of-competition testing programs in other jurisdictions require advance notice of 25 testing.9 As noted elsewhere, the Board's entire scheme is designed to permit it to act without restraint, including conducting testing without a smidgen of a justifiable predicate. Finally, as is also detailed in the Main Brief (pp. 40-46), the Board's suggestion that the Rules provide an adequate substitute for a warrant is sheer nonsense. First, as repeatedly discussed elsewhere, the Board's claim (Brief, p. 38) that the illusory 180 day time frame somehow limits the discretion of its agents is without basis. As the Supreme Court quite accurately observed (R. 18), "[t]here is simply no objective criteria upon which to anticipate which horses will compete in the future" and the regulations effectively vest the Board with the power to select virtually any horse for testing without any factual predicate. The Rules provide no standards for the time or place of the searches and, in fact, permit any horse to be tested without notice, whether located at a racetrack or stabled elsewhere but under the control of a licensed trainer (even if stabled out of state or beyond our nation's borders!). 9 Indeed, a number of out-of-competition programs of sister racing jurisdictions include advance notice requirements. For example, while lllinois permits the testing of horses stabled off- track, it requires "reasonable notice" of the testing. 11 Ill. Adm. Code 603.200(a). Kentucky likewise requires advance notice to the owner, trainer or caretaker before conducting out-of- competition testing on a horse stabled off-track. 810 KAR 1:110(4)(4). Similarly, New Jersey and New Mexico, which each conduct out-of-competition testing at designated locations, require production of the horse to be tested within 24 hours of notification (see N.J.A.C. 13:70-14A.13[b]; and NMAC 15.2.6.9 [G][7] [New Mexico]). See also R. 412-413. 26 In short, contrary to established law (Main Brief, p. 46), these Rules empower the Board to conduct limitless, random and capricious searches that are not subject to any particularized standards and fail to safeguard an individual's constitutional rights. The Board's contention that the Rules' warrantless search provisions are properly enforceable against non-licensed private farm owners is also flawed. As demonstrated previously (Main Brief, pp. 46-50), this aspect of the Third Department's Order not only fails to consider the true nature of private horse farms in this State but also is based on the unprecedented premise that allows one's personal right to be free from illegal searches and seizures to be waived by a regulation of an agency that lacks jurisdiction over the very individual whose privacy rights it threatens to intrude upon.10 10 The Board's reliance (Brief, p. 45, fn. 9) on People v. Cosme, 48 N.Y.2d 286 (1979) is misplaced. In Cosme, police were found to have sufficient authority to conduct a warrantless search of an apartment bedroom closet, even though defendant was present and refused to give his consent, upon the consent of defendant's fiance, who was found to" ... a person with common authority over the premises searched by reason of her equal access to and use of both the apartment and the bedroom closet in which the contraband was found." 48 N.Y.2d at 292. Here, on the other hand, the Board has not and cannot show that the mere rental of a stall in a barn would provide the lessee with "common authority over" and "equal access to and use of' areas of the horse farms beyond the stables, and in which the unlicensed horse farms owners do have privacy rights, so as to be legally authorized to consent to a warrantless search of such areas. These areas of the horse farms that are beyond the stables are areas in which the inspectors must necessarily enter in the performance of their duties, such as driveways and adjacent properties and, again, are areas in which private horse farm owners certainly have legitimate expectations of privacy. 27 The Board's eleventh-hour attempt (Brief, pp. 47-49) to salvage the Rules' warrantless search provisions by resorting to the "special needs" exception also fails on both procedural and substantive grounds. Initially, the Board's claim (Brief, at p. 47 fn. 10) that it can now raise the "special needs" exception for the first time before this Court because it is a "pure law issue" is incorrect. While the applicability of the "special needs" exception is an issue of law, it is a question of constitutional law that cannot be raised for the first time before this Court. As this Court emphasized in Wein v. Levitt, 42 N.Y.2d 300 (1977), "[i]t is important that [this Court] not entertain or pass upon constitutional questions that were neither raised nor considered below" Id. at 306; see also Di Bella v. Di Bella, 47 N.Y.2d 828, 829 (1979) ("It has long been the settled rule that, unless a constitutional argument is properly raised for decision below, it will not be considered in this court.") (citations omitted). That the applicability of the "special needs" exception to the Fourth Amendment of the Constitution raises a constitutional question is beyond cavil. Indeed, in his concurring opinion in U.S. v. Chirino, 483 F.3d 141 (2d Cir. 2007), Judge McLaughlin addressed this very issue and observed: "Inevitably, however, a case will arise in which a suspicionless search . . . occurs absent a "special need" or similar exception. I believe that the propriety of that search would present an open question of constitutional law in this 28 Circuit. .. " 483 F.3d at 150. For the very reasons articulated by Judge McLaughlin in Chirino, the Board may not now raise this constitutional issue for the first time before this Court. In any event, the Board's testing regulations do not qualify under the "special needs" exception to the warrant requirement. The very authorities cited by the Board in support of this belated claim confirm that this exception obtains where, contrary to the circumstances of this case, either the search applies uniformly to a category of individuals not subject to the testing agency's discretion (see, e.g., Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 607 [1989] [upholding suspicionless mandatory blood and urine tests of all employees involved in certain train accidents]; Lynch v. City of New York, 589 F.3d 94 [2d Cir. 2009] [upholding NYPD policy requiring mandatory breathalyzer test administered to every police officer who causes injury or death as a result of discharging firearm]) or, to an objectively and readily ascertainable class of participants (see, e.g., Bd. of Education v. Earls, 536 U.S. 822 [2002] [upholding as reasonable a policy requiring all middle and high school students who participated in competitive extracurricular activities to submit its drug testing]) 11 11 The propriety of such uniform application and discretionless standards is further evidenced by U.S. v. Martinez-Fuerte, 428 U.S. 543 (1976) in which the Supreme Court upheld routine checkpoint stops at fixed locations to check for illegal aliens. The Court noted, inter alia, that "[m]otorists ... are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second, checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized 29 Nor does the Seventh Circuit's holding in DiMeo v. Griffin, 943 F.2d 679 (7th Cir. 1991) (en bane) support the Board's position. Notably, as the majority panel decision makes clear, in that case the Court upheld a program of suspicionless searches of horse jockeys and drivers that were limited to random drug testing at races of licensees "who appear as participants on the official program ... " DiMeo v. Griffin, 924 F.2d 664, 668 (7th Cir. 1991) (emphasis added); judgment reversed upon rehearing, 943 F.2d 679 (7th Cir. 1991). Thus, unlike the virtually limitless testing discretion conferred to Board agents under the Rules, the testing protocol at issue in DiMeo encompassed race-day testing of an objectively ascertainable class of licensees who were actually scheduled to participate in races. As such, that case provides no basis to invoke the "special needs" exception to the case at bar.12 manner in which established checkpoints are operated is visible evidence, reassuring to law- abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions ... " 428 U.S. at 559. Significantly, the Court further observed that " . . . since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops" noting that, in the case of roving patrols, "[t]here also was a grave danger that such unreviewable discretion would be abused by some officers in the field." Id. Here, as demonstrated above, the Rules empower the Board's agents with unfettered power that invites arbitrary enforcement as opposed to uniform application. 12 The case of Palmieri v. Lynch, 392 F.3d 73 (2d Cir. 2004) also cited by the Board (Brief, p. 48), is likewise distinguishable. In Palmieri, a waterfront property owner whose property comprised state-regulated tidal wetlands and who applied to the State Department of Environmental Conservation ("DEC") for a tidal-wetland permit to extend a residential dock. Plaintiff subsequently asserted a 1983 claim based on the Fourth Amendment and a common law trespass cause of action against certain DEC employees who had briefly entered on plaintiffs property to inspect the dock in response to plaintiffs application. The Palmieri 30 In short, while the Board's belated attempt to ratse the "special needs exception" should not be considered by this Court, the Board's underlying contention nonetheless is without merit. Based on the foregoing reasons, together with those set forth in Point III of the Main Brief, this Court should reverse that part of the Third Department's Order that reinstated 9 NYCRR §4120.17(g)'s overbroad and arbitrary provisions because they permit the Board to engage in improper searches that unduly infringe upon the constitutional rights and privacy interests of licensed individuals as well as private individuals beyond the agency's licensing jurisdiction. Court found that plaintiffs privacy expectation was diminished because, inter alia, " ... he had applied for a construction permit and was on notice that the application process would involve some form of site inspection" 392 F.3d at 83. Thus, there was no opportunity for unfettered discretion on the part of the DEC, as the filing of the application triggered the automatic inspection. 31 POINT IV THE THIRD DEPARTMENT'S REINSTATEMENT OF THE RULES' SANCTIONING PROVISIONS AS TO NON- LICENSEES AND LICENSEES ALSO MUST BE REVERSED In the Main Brief (pp. 51-56), petitioners established that this Court should reverse that part of the Third Department's Order which reinstated the sanctioning provisions of Section 4120.17(g) permitting the imposition of penalties (including fines upon individuals other than Board licensees who fail or refuse to cooperate with the Board's testing procedures) as well as the sanctioning provisions targeting Board licensees, including specifically Section 4120.17(i)'s "minimum penalty" of a ten-year suspension against a licensed trainer or owner should a horse test positive under the Rules. More particularly, as previously discussed in the Main Brief (pp. 52-53), while the Third Department acknowledged that Section 4120.17(g)'s "cooperation" provisions extended to non-licensees, it nonetheless reinstated this provision based on a clear misreading of Section 310 of the Racing Law. Petitioners further demonstrated (Main Brief, pp. 54-56) that Section 4120.17(i)'s minimum ten-year penalty is disproportionate to the conduct involved, especially given the Board's conceded inability to (i) provide a comprehensive list identifying the substances it seeks to ban under the Rules; and (ii) confirm its own test results. Moreover, as further detailed in the Main Brief (p. 55), the mere fact that the Rules provide for a 32 downward departure upon a showing of "extraordinary mitigating circumstances" does not cure the regulations' legal deficiency where, as here, the Rules do not provide for any split-sampling procedures (as virtually all other racing jurisdictions do) and a licensee who wishes to contest the accuracy of a Board's positive test is thus not provided by law with any meaningful method to challenge such a finding. In response, the Board incorrectly asserts (Brief, pp. 57-58) that subdivision (g) is not applicable to non-licensees unless they are "designees" of a licensee. The Board further contends (Brief, pp. 58-59)-- again incorrectly-- that the Third Department properly concluded that Section 310 authorizes the imposition of sanctions against a private non-licensee who refuses to cooperate with the Board's Rules (Brief, p. 59). The Board's flawed arguments-- which not only rely on the conclusory May lin Affidavit but also ignore that its expert's repudiation of his statement that none of the targeted substances have any therapeutic value -- assert (Brief, p. 61) that 9 NYCRR §4120.17 (i)'s minimum ten-year sanction should be upheld because the severe penalty "is necessary to deter unscrupulous individuals" from engaging in the purportedly growing illegal drugging practice (of which no proof whatsoever has been presented) and that this sanction is not disproportionate to the underlying offending conduct. Finally, the Board cavalierly suggests (R. 62-63) that the Rules' failure to provide for split samples is not problematic because the Board will voluntarily provide such 33 samples. For the reasons previously stated in petitioners' Main Brief (pp. 51-56) and those detailed below, the Board's various arguments should be summarily rejected. As previously noted (Main Brief, p. 52, fn. 21), the Third Department observed that while Section 4120.17(g)'s "cooperation" provisions apply only to non-licensed "designees" and that private farm owners are not specifically identified in the Rules, the sanctioning provisions under subdivision (g) expressly provide that "the failure or refusal to cooperate ... by any licensee or other person shall subject the licensee or person to penalties .. " (emphasis added). As such, the Rules clearly contemplate private farm owners' participation and cooperation by, inter alia, assisting in immediately locating and identifying the horse selected for testing, providing the Board with "a stall or safe location," and obeying "any instruction" of the Board in furtherance of the Rules testing procedures. See 9 NYCRR §4120.17(g)(l)-(4). Thus, contrary to the Board's suggestion (Brief, pp. 57-58), there is no question that this regulation encompasses sanctions against non-licensee private farm owners under subdivision (g) who are not designees of a licensee. Moreover, the Board's claim that Racing Law Section 310 authorizes sanctions to be imposed against private, non-licensed farm owners for failing to cooperate with the Board's testing rules is based on an unwarranted reading of the 34 statutory language. As previously discussed (Main Brief, p. 53), the plain language of this statute provides that the Board may sanction only entities and individuals "participating in any way in any harness race meet at which pari- mutuel betting is conducted ... " (emphasis supplied). Because an unlicensed private farm owner is not "participating in a harness race meet ... "when stabling horses of licensed trainers or owners, he does not come within the sanctioning provisions of Section 310. Nor does Matter of Dougherty v. State Harness Racing Comm 'n, 286 App. Div. 837 (1st Dep't 1955) aff'd 309 N.Y.992 (1956), cited by the Board (Brief, p. 59), support a different result. In Dougherty, while the suspended individual was not licensed by the Board, his suspension was based on his own personal conduct at a race during a pari-mutuel race card in which he polled the drivers to ask them if they wished to discontinue racing immediately. 26 App. Div. at 837-838. Accordingly, the facts of Dougherty are plainly distinguishable and provide no basis to authorize sanctions against a private licensee for conduct that takes place at an off-track stable and not at a race track or during a race. As previously demonstrated (Main Brief, pp. 54-56), subdivision (i)'s ten-year minimum sanction is grossly disproportionate to the nature of the underlying violation (see Matter of Pell v. Board of Educ., 34 N.Y.2d 222 [1974]), especially given the dubious factual basis of the Board's entire regulatory program 35 and the Board's conceded inability to provide a comprehensive listing of the offending substances subject to the regulations. Moreover, the Board's present claim (Brief, p. 62) -- that its expert "rebutted claims that the prohibited substances may have some therapeutic value" -- provides no further basis for affirmance. This statement is not only absolutely false, but the widely-recognized therapeutic value of a number of target drugs was conceded below by the Board and, in fact, provided the basis for the Supreme Court's annulment (R. 18-20) of 9 NYCRR §4120.17(e)(3), which was affirmed by the Third Department (R. 458), and has not been appealed to this Court. Indeed, petitioners established below through sworn, indisputable proof (see R. 326-333, 398-401, 403-406, 408-411, 429-444), that subdivision (e)(3)'s excessively broad definition of banned "prohibited substances" included various substances that are specifically authorized to be used (subject to time limitations) under the Board's "Restricted Use" regulations set forth in §4120.2. Furthermore, as was confirmed by the undisputed proof (see R. 326-333, 398-401, 403-406, 408-411, 429-444), subdivision (e)(3)'s absolute and unqualified prohibition of "protein and peptide base drugs" encompassed a number of medications with widely-recognized and accepted therapeutic value (specifically including, for example, Tetanus Antitoxin, Chymotrypsin, Immuno Stimulants, Sarapin and numerous biologics). This veterinary medical proof further established that subdivision (e)(3)'s blanket 36 prohibition also encompasses protein and/or peptide-based plasma treatments that constitute recognized and accepted therapeutic veterinary practices involving the use of (1) the commercial anti-Salmonella product "Endoserum" and commercial horse plasma; (2) the accepted therapeutic procedure of whole blood or plasma transfusions; and (3) the therapeutic use of stem cells (R. 328, 399, 404, 409, 428-429). During the proceedings, the Board conceded that §4120.17(e)(3)'s broad prohibition was inconsistent with the "Restricted Use" provisions of §4120.2 (see, e.g., R. 415 1[1[4-5; R. 416