Gaming Commission Rulings Database
| Licensee: MICHAEL TEMMING |
| Licensed As: TRAINER |
| Notice Number: MO 2-2020 |
| Racing Type: Harness |
| Track: Main Office |
| Notice Date: 09/22/2020 |
| Status: CLOSED |
| Ruling Type: Suspension |
| Rule(s): 4119.7(a)(3) and (5) and (b); 4120.4(a); 4120.17(c)(1); 4119.7(a)(5); 4120.5 |
| Ruling Text: PLEASE TAKE NOTICE that the occupational licenses of you, Michael Temming, to participate in pari-mutuel harness racing as an owner, trainer, or otherwise are hereby SUSPENDED IMMEDIATELY pending the disposition by the New York State Gaming Commission (“Commission”) of the scheduled hearing before the Commission, or if you refuse such hearing or default in appearing, SUSPENDED until such time as the Commission in its discretion takes further action, including but not limited to a fine and license suspension or revocation or refusal to license.
YOU ARE FURTHER NOTIFIED that a hearing in this matter will be held at 10:00 a.m. on January 31, 2020, at Commission offices located at 317 Lenox Avenue, Sixth floor, New York, New York, at which time you may be represented by counsel and present evidence and arguments on your own behalf.
This action is taken pursuant to Racing, Pari-Mutuel Wagering and Breeding Law ("Racing Law") §§ 301(1), 301(2)(a), 309(2), 310 and 321; 9 NYCRR § 4119.7(a)(3) and (5) and (b) and State Administrative Procedure Act § 401(3), upon a finding of the Commission that the public safety and welfare imperatively require this emergency action because your continued participation in racing is a potential cause of public harm and further could result in an impairment of the public's confidence in pari-mutuel racing in New York State and have an adverse effect upon substantial State and public revenues and revenues to the industry in general generated by pari-mutuel racing, in that, under the present circumstances you lack the general character and fitness for continued participation in pari-mutuel racing, and your continued participation in pari-mutuel racing is presently inconsistent with the public interest, convenience and necessity and with the best interests of racing generally, based upon the circumstances and charges stated more particularly hereinafter.
The disposition of these matters may result in the revocation or suspension of your license, your exclusion from all racetracks in New York State and the imposition of fines. In particular, at the scheduled and any adjourned dates of your hearing the Commission may seek, pursuant to Racing Law § 321, Article 3 of the State Administrative Procedure Act, and Part 4550 of 9 NYCRR, to fine you in an amount not exceeding $25,000 per violation, suspend and/or revoke your license or licenses to participate in pari-mutuel racing, disqualify the horses you owned that raced in violation of Part 4120 from such races and from any share of the purse in such races, and exclude you from all New York State racetracks whether as a licensee, participant or patron pursuant to Racing Law §§ 309 and 310 and the applicable Commission rules at 9 NYCRR, in that:
1. The horse “Sports Bettor,” trained by you, ran in the 4th race at Yonkers Raceway on December 7, 2019 with a blood-doping agent known as iOX2 having been administered and present in its bodily system, in violation of 9 NYCRR §§ 4120.4(a) and 4120.17(c)(1);
2. The horse “Showmeyourguns,” trained by you, ran in the 7th race at Yonkers Raceway on December 17, 2019 with a blood-doping agent known as iOX2 having been administered and present in its bodily system, in violation of 9 NYCRR §§ 4120.4(a) and 4120.17(c)(1);
3. Your character and general fitness are such, based on the foregoing and your purchase of a large quantity of iOX2, that your participation in pari-mutuel racing is inconsistent with the public interest, convenience and necessity and with the best interests of racing generally, contrary to Racing Law § 309(2)(e)(ii);
4. You should be excluded from all New York race tracks whether as a licensee, participant or patron, based on the foregoing, because your conduct at a race track in New York and elsewhere has been detrimental to the best interests of racing and you are guilty of improper, corrupt and fraudulent acts and practices in relation to racing, in violation of Racing Law § 309(2)(e)(i)(3) and 9 NYCRR § 4119.7(a)(3) and have violated rules and regulations of the Commission, in violation of Racing Law § 309(2)(e)(i)(5) and 9 NYCRR § 4119.7(a)(5); and
5. The horses that you owned and that were raced in violation of Part 4120, as set forth above, shall be disqualified from each such race and from any share of the purse in such races, and such shares shall be redistributed among the remaining horses in the race, pursuant to the foregoing statutes and rules and 9 NYCRR § 4120.5.
PLEASE TAKE NOTICE that the hearing will be conducted pursuant to Section 321 of the Racing Law, Article 3 of the State Administrative Procedure Act, and Part 4550 of 9 NYCRR.
PLEASE TAKE NOTICE that you may be represented by counsel, cross-examine witnesses, and present evidence and arguments on your own behalf. Interpreter services will be made available to deaf persons and people who are not English language proficient at no charge but should be requested in writing at least one week before the hearing date, or as soon as reasonably possible. You are responsible to deliver this Notice of Hearing to your attorney, if you have or retain one. This shall be a de novo hearing that may result in the imposition of any legally available penalty including a license suspension or revocation and a fine not to exceed $25,000.
PLEASE TAKE NOTICE that unless you object before the hearing date, the Commission may conduct your hearing using live videoconferencing that allows you and each other witness to participate and testify from another location that might be more convenient. To object to live videoconferencing, you must contact the hearing officer with concurrent notice to the assigned counsel. The hearing officer will determine, after an opportunity for the parties to be heard, whether or not to use live videoconferencing. If you choose to participate in your hearing through videoconferencing, then you are responsible to be sure that a copy of any physical evidence that you may want to use during testimony or introduce into evidence has been delivered to opposing counsel and the Hearing Officer before the hearing, and that the hearing officer and other party are afforded an opportunity to examine any original of such evidence that you may want to introduce into evidence.
PLEASE TAKE NOTICE that the hearing may be adjourned at the discretion of the hearing officer for good cause shown upon the request of any party. Requests for adjournments must be submitted as soon as reasonably possible. Absent a serious emergency matter, no requests for adjournments, except for the initial hearing date of January 31, 2020, will be granted within two business days of the scheduled hearing date. To request an adjournment, you must contact the hearing officer at dciccone3@verizon.net, with concurrent notice to the assigned counsel at rick.goodell@gaming.ny.gov, as soon as possible. Requests for adjournments must be in writing and, after the opposing party has an opportunity to be heard regarding a request for adjournment, approved by the Hearing Officer. If you fail to appear at the hearing, then you will be in default, any appeal you filed and request that you made for a hearing may be deemed withdrawn, and the Commission may proceed in your absence with the hearing. Adjournments on consent of all parties are subject to the approval of the Hearing Officer.
PLEASE TAKE FURTHER NOTICE that, if you do not appear at the hearing and have not been granted an adjournment, then the hearing shall take place as scheduled and a decision, including by default, shall be made on the charges. The decision may result in fines, not to exceed $25,000 for each violation, imposed against you; the suspension or revocation of your occupational license(s); the expulsion of you from all pari-mutuel race tracks in New York state; and the disqualification of horses from the races and from any share of the purse in the race in which they participated in violation of Part 4120 of 9 NYCRR.
***SUBSEQUENT HISTORY***
FINDINGS AND ORDER
Harness owner-trainer Michael Temming (“Respondent”) having been summarily suspended by the New York State Gaming Commission (“Commission”) on January 21, 2020 pursuant to Racing, Pari-Mutuel Wagering and Breeding Law (“Racing Law”) §§ 301(1), 301(2)(a), 309(2), 310 and 321; 9 NYCRR § 4119.7(a)(3) and (5) and (b) and State Administrative Procedure Act § 401, pending a final disposition by the Commission regarding whether Respondent should be fined in an amount not exceeding $25,000 per violation, excluded from all New York State racetracks as a licensee, participant and patron, and have his licenses to participate in pari-mutuel racing suspended or revoked, and regarding whether two horses that Respondent trained were raced in violation of Commission rules and should be disqualified from the pertinent races and from any share of the purses in such races, in that:
1. The horse Sports Bettor, trained by Respondent, ran in the 4th race at Yonkers Raceway on December 7, 2019 with a blood- or gene-doping agent known as iOX2 having been administered and present in its bodily system, in violation of 9 NYCRR §§ 4120.4(a) and 4120.17(c)(1);
2. The horse Showmeyourguns, trained by Respondent, ran in the 7th race at Yonkers Raceway on December 17, 2019 with a blood- or gene-doping agent known as iOX2 having been administered and present in its bodily system, in violation of 9 NYCRR §§ 4120.4(a) and 4120.17(c)(1);
3. Respondent’s character and general fitness are such, based on the foregoing and his purchase of a large quantity of iOX2, that his participation in pari-mutuel racing is inconsistent with the public interest, convenience and necessity and with the best interests of racing generally, contrary to Racing Law § 309(2)(e)(ii);
4. Respondent should be excluded from all New York race tracks whether as a licensee, participant or patron, based on the foregoing, because his conduct at a race track in New York and elsewhere has been detrimental to the best interests of racing and he is guilty of improper, corrupt and fraudulent acts and practices in relation to racing, in violation of Racing Law § 309(2)(e)(i)(3) and 9 NYCRR § 4119.7(a)(3) and has violated rules and regulations of the Commission, in violation of Racing Law § 309(2)(e)(i)(5) and 9 NYCRR § 4119.7(a)(5); and
5. The horses that Respondent trained and that were raced in violation of Part 4120, as set forth above, shall be disqualified from each such race and from any share of the purse in such races, and such shares shall be redistributed among the remaining horses in the race, pursuant to the foregoing statutes and rules and 9 NYCRR § 4120.5.
Respondent having received proper notice and having appeared for and participated with counsel in this matter at his hearing which, after adjournments granted by the Hearing Officer at the request of Respondent, was conducted on July 15, 2020;
The Hearing Officer having rendered her report on September 15, 2020, which is attached and incorporated into this Findings and Order; and
The Commission having met on September 21, 2020 and, after due deliberation, having adopted the Hearing Officer’s findings of fact and conclusions of law with modifications noted below; now
THEREFORE, upon the Record, the Report of the Hearing Officer, and the findings and conclusions adopted, as modified, by the Commission, it is hereby
ORDERED, that Respondent Michael Temming’s occupational licenses to participate in harness racing are suspended for a period of 20 years for having committed all the aforesaid allegations of misconduct, including two violations of 9 NYCRR §§ 4120.17(c)(1) and 4120.4(a), and for the Commission having determined that his misconduct establishes that the standards for license suspension and exclusion pursuant to Racing Law § 309(2)(e)(i)(3) and (ii) and 9 NYCRR §§ 4119.7(a)(3), 4119.7(a)(5) and 4120.17(d)(2) have been met;
ORDERED, that during the period of his suspension and unless and until respondent is issued an occupational license by the Commission, Respondent Michael Temming shall not directly or indirectly participate in New York pari-mutuel horse racing, he is denied the privileges and use of the grounds of all racetracks, and he is forbidden to participate in any share of purses or other payment. Every horse is denied the privileges of the grounds and shall not participate in pari-mutuel racing in New York, further, that is (a) owned or trained by him, or any individual who serves as his agent or employee, during his revocation; or (b) for which he, during his revocation, is involved, directly or indirectly, with its training, including but not limited to any arrangements made to care for, train, enter, race, invoice, collect fees or payments, manage funds, employ or insure workers, provide advice or information, or otherwise assist with any aspect of the training of the horse;
ORDERED, that Respondent Michael Temming shall be denied admission to and is hereby excluded whether as a licensee, participant or patron from all race tracks licensed by the Commission for a period of 20 years; and
ORDERED, that in addition to the findings and conclusions of the Hearing Officer, the Commissioners have determined that pursuant to 9 NYCRR § 4120.5 the horses Sports Bettor and Showmeyourguns should be and hereby are disqualified and unplaced from the 4th race at Yonkers Raceway on December 7 and the 7th race at Yonkers Raceway on December 17, 2019, respectively; such horses are disqualified from any share of the purse in such races; and such shares shall be redistributed among the remaining horses in such races that are entitled to the same. |
| Suspended: 01/21/2020 to 01/20/2040 (7305 days) |
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