Gaming Commission Rulings Database
| Licensee: KEVIN J. CUMMINGS |
| Licensed As: OWNER-DRIVER |
| Notice Number: MO 174-2020 |
| Racing Type: Harness |
| Track: Main Office |
| Notice Date: 10/14/2020 |
| Status: CLOSED |
| Ruling Type: Fine & Suspension |
| Rule(s): 4101.24, 4117.8© |
| Ruling Text: PLEASE TAKE NOTICE that the license of you, Kevin J. Cummings, to participate in pari-mutuel harness racing as a driver is 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, without limitation, a fine and license suspension or revocation.
YOU ARE FURTHER NOTIFIED that a hearing in this matter will be held at 1:00 p.m. on Thursday, July 30, 2020. We are currently conducting hearings only by videoconference due to the COVID-19 health emergency. This includes that the hearing officer will preside by videoconference. Please note, you must contact our office to arrange for you, including your attorney and witnesses, to videoconference from your own location. There will be no physical location provided by the Commission for this hearing. If you wish to use, mark or introduce demonstrative evidence (e.g., documents) at the hearing, then you must provide a copy of these in advance of the hearing date to the opposing counsel (assigned attorney) and the hearing officer. Any demonstrative evidence not possessed by all parties and the hearing officer at the time of the hearing may be barred from use.
This action is taken pursuant to Racing, Pari-Mutuel Wagering and Breeding Law ("RWL") §§ 301(1), 301(2)(a), 309, 310 and 321; 9 NYCRR §§ 4101.24 and 4117.8(c); and State Administrative Procedure Act § 401, 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 civil unrest and 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 you are notified that the Commission will take evidence to determine whether, pursuant to Racing Law § 321, Article 3 of the State Administrative Procedure Act, and Part 4550 of 9 NYCRR, the Commission should fine you in an amount not exceeding $25,000 per violation, suspend and/or revoke your driver license to participate in pari-mutuel racing, in that:
1. The horse Keystone Keen, driven by you, in the 10th race at Buffalo Raceway on July 18, 2020 and you engaged in indiscriminate, unnecessary, brutal and excessive use of the whip, which caused visible injury to the horse, including whipping the horse the length of the stretch and leaving multiple, visible welts on the horse, in violation of 9 NYCRR §§ 4117.8(c); and
2. Your character and general fitness are such, based on the foregoing and your history of whipping and other rule violations, that your participation in pari-mutuel racing as a harness driver is inconsistent with the public interest, convenience and necessity and with the best interests of racing generally, contrary to RWL § 309 and 9 NYCRR § 4101.24.
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 such services should be requested in writing as soon as reasonably possible. You are responsible to deliver this Notice of Hearing to your attorney, if you have or retain one. This hearing 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 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 July 30, 2020, will be granted within two business days of the scheduled hearing date. To request an adjournment, you must contact the hearing officer at sdd@devalaw.com, with concurrent notice to the Commission’s 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 in regard to a request for adjournment, approved by the Hearing Officer. If you fail to appear at the hearing, then you will be in default 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 and the suspension or revocation of your harness driver licenses.
***SUBSEQUENT HISTORY***
FINDINGS AND ORDER
Harness driver Kevin J. Cummings (“Respondent”) having been summarily suspended by the New York State Gaming Commission (“Commission”) on July 22, 2020 pursuant to Racing, Pari-Mutuel Wagering and Breeding Law (“Racing Law”) §§ 301(1), 301(2)(a), 309, 310 and 321; 9 NYCRR §§ 4101.24 and 4117.8(c) 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 and have his driver’s license in pari-mutuel harness racing suspended or revoked, in that:
1. Respondent engaged in indiscriminate, unnecessary, brutal and excessive use of the whip, which caused visible injury to the horse Jim’s Great that he drove in the 9th race at Buffalo Raceway on July 18, 2020, including whipping the horse the length of the stretch and leaving multiple, visible welts on the horse, in violation of 9 NYCRR § 4117.8(c); and
2. Respondent’s character and general fitness are such, based on the foregoing and his history of whipping and other rule violations, 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 RWL § 309 and 9 NYCRR § 4101.24.
Respondent having received proper notice and having appeared for and participated with counsel in this matter at his hearing which, after an adjournment granted by the Hearing Officer at the request of Respondent, was conducted on August 14, 2020;
The Hearing Officer having rendered his report on October 5, 2020, which is attached and incorporated into this Findings and Order; and
The Commission having met on October 14, 2020 and, after due deliberation, having adopted the Hearing Officer’s findings of fact and conclusions of law with the modification that is 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 Kevin J. Cumming is fined $2,500 and his license to participate in harness racing as a driver is suspended for a period of six months from July 22, 2020, when he was summarily suspended in this matter, and until such time as he has completed a Commission-approved anger management course, for having committed the aforesaid violation of 9 NYCRR § 4117.8(c) and in that his misconduct and his history of prior whipping and other violations establishes that the standards for such suspension of his license pursuant to Racing Law § 309 and 9 NYCRR § 4101.24 have been met; and
ORDERED, that the upward modification that the Commission has imposed of the fine and period of suspension recommended by the hearing officer is based upon the Commission’s additional findings and conclusion that the Respondent’s repeated violations of the whipping rule have established a disturbing escalation in frequency and severity of horse abuse and warrant a more substantial fine and period of suspension. |
| Suspended: 07/22/2020 to 01/22/2021 (185 days) |
| Fined: $2500.00 |
Note that the above data is current as of 5:54 AM EDT, Thursday, May 02, 2024 and subject to change as more information becomes available.
The New York State Gaming Commission takes reasonable measures to ensure that the data and information on this website is accurate and current. However, the Commission makes no express or implied warranty regarding this information or data and expressly disclaims all legal liability and responsibility to persons or entities who use or access this website and its content.