Gaming Commission Rulings Database
| Licensee: ORLANDO J. NODA |
| Licensed As: TRAINER, EXERCISE RIDER |
| Notice Number: ST 4-2021 |
| Racing Type: Thoroughbred |
| Track: Saratoga Racecourse (NYRA) |
| Notice Date: 08/15/2021 |
| Status: HEARING REQUESTED |
| Ruling Type: Fine |
| Rule(s): 4022.11, 4022.13, 4022.12 |
| Ruling Text: Trainer Mr. Orlando Noda is hereby fined the sum of five thousand ($5,000) dollars for action detrimental to the best interest of racing.
Having appealed a stay has been granted.
FINDINGS & ORDER ST 4-2021
The New York State Gaming Commission (“Commission”) conducted a hearing, as requested by Orlando J. Noda (“Respondent”), after Respondent received notice of the Commission’s fine against Respondent for action detrimental to the best interests of racing pursuant to 9 NYCRR § 4022.12. The hearing was conducted on the grounds set forth in the Notice of Hearing dated October 18, 2021. The Notice of Hearing charged that Respondent’s occupational licenses should be suspended or revoked, and Respondent could be fined, based on conduct detrimental to the best interests of racing in violation of Commission regulation 9 NYCRR § 4022.12 and for an improper act in relation to racing in violation of Commission regulation 9 NYCRR § 4042.1(f), pursuant to Racing, Pari-Mutuel Wagering and Breeding Law §§ 116 and 220(3).
Respondent received proper notice of, and participated in, a hearing conducted by video conference on February 16, 2022 and March 28, 2022.
The Hearing Officer rendered a Hearing Officer Report and Recommendations dated November 1, 2022, (the “Report”) which is attached and incorporated herein. The Hearing Officer submitted the Report to the Commission for deliberation, including the Hearing Officer’s recommendation that the Commission deny and dismiss the charges and penalties sought by the Commission as against Respondent. The Commission met on December 12, 2022, and after consideration and due deliberation of the entire record, rejected the Hearing Officer’s findings of fact (except as noted herein) and conclusions of law in the Report, as the Commission has the authority to do pursuant to State Administrative Procedure Act (“SAPA”) section 307(1) and Commission Rule 4550.8(c). The Commission made the following findings of fact and conclusions of law, and rejected any finding and conclusion in the Report to the extent that such finding or conclusion may conflict with the Commission’s findings and conclusions herein, whether or not such conflict is noted explicitly herein:
Findings of Fact
1. Respondent is licensed to participate in Thoroughbred racing as a trainer and exercise rider.
2. Findings of Fact numbered 1, 2 and 3 in the Report are adopted.
3. Witness David Ingordo is an experienced horseman.
4. On August 5, 2021, Respondent struck a horse, identified by Respondent as Win With Pride, with Respondent’s whip with “pretty good force”, in a very aggressive manner and in anger, cursing at the horse by calling the horse a “piece of shit” while striking it.
5. The horse was not acting dangerously when Respondent repeatedly struck the horse in anger or frustration. Rather, the horse was refusing to train. Respondent’s actions were not to encourage the horse, rather they were meant to punish the horse for its lack of cooperation in training.
6. Finding of Fact number 4 in the Report is rejected, because the record reflects that Respondent struck the horse repeatedly, at least seven times, during a time period possibly as long as five minutes.
7. Finding of fact number 5 in the Report is rejected, because the hearsay evidence of what corroborating witness Tom Bush said to multiple investigators and stewards about the actions of Respondent in excessively striking the horse is admissible in an adjudicatory hearing.
8. Finding of Fact number 6 in the Report is rejected because although it is true that statements from Tom Bush regarding the events on August 5, 2021 were referred to in the statements of others, it is misleading in that it does not specify that the statements from Tom Bush were referred to in written statements and in oral testimony provided during the hearing, and overlooks that hearsay testimony of a corroborating witness is admissible in an adjudicatory proceeding.
9. Finding of Fact number 7 in the Report is accepted because it is literally true, but is misleading in that witness Ingordo did not have any responsibility or duty to report what he had seen to Commission officials the same day he witnessed the conduct.
10. Findings of Fact numbered 8 and 9 in the Report are adopted.
11. Findings of Fact numbered 10, 11, 12, 13 and 14 are rejected because they are outweighed by the eyewitness testimony, corroborated by an additional witness, that the horse was struck by Respondent repeatedly and excessively in anger.
12. Findings of Fact numbered 15, 16 and 17 in the Report are rejected because the record reflects that New York Racing Association, Inc. (NYRA) Steward Brook Hawkins, discussed the incident at issue and the investigation with NYRA investigators, prior to the hearing, and these Findings are not relevant to the Commission’s Findings of Fact.
13. Findings of Fact numbered 18 and 19 in the Report are accepted.
14. Finding of Fact numbered 20 in the Report is rejected as misleading regarding the structure of the track hearing, because the track hearing was an opportunity to be heard, not an adversary hearing at which counsel is allowed to advocate.
15. Finding of Fact number 21 in the Report is rejected because there is no requirement that a person be given any notice in writing prior to an opportunity to be heard, which is an opportunity for a person to tell the person’s side of the story at issue before action may be taken.
16. Finding of Fact number 22 in the Report is accepted, and it is noted that “whip” and “crop” were used interchangeably throughout the record.
17. Finding of Fact number 23 in the Report is rejected because it improperly implies that the Commission is required to have specific written rules, regulations, standards or policies that set forth proper or improper use of a crop during training.
18. Findings of Fact numbered 24 and 25 in the Report are accepted.
19. Finding of Fact number 26 in the Report is rejected because it improperly implies that a transcript or other record of a track-level opportunity to be heard needs to be made.
Conclusions of Law
20. Repeatedly striking a horse during training in anger and frustration while calling the horse a “piece of shit,” as Respondent did on August 5, 2021, constituted an improper act or conduct in violation of Commission Rule 4042.1(f).
21. Repeatedly striking a horse during training in anger and frustration while calling the horse a “piece of shit,” as Respondent did on August 5, 2021, was detrimental to the best interests of racing in violation of Commission Rule 4022.12.
22. The Commission cannot and does not need to foresee every possible manner in which regulated parties might commit improper acts, engage in improper conduct, or take action detrimental to the best interests of racing, and therefore cannot, and is not required to, promulgate specific regulations to prescribe every such conduct or actions with specificity. There is an appropriate need for broad rules prohibiting improper and detrimental actions and conduct, which rules can be applied appropriately to unforeseen particular acts and conduct as circumstances may require. In any event, it strains credulity to opine that repeatedly striking a horse in anger does not constitute an improper act in violation of Commission Rule 4042.1(f).
23. The quantity of witnesses is not dispositive to establish a fact in an adjudicatory proceeding. One credible witness is sufficient to support a finding of fact. In the instant case, the written witness statements were amply corroborated by the testimony given during the hearing.
24. The testimony of eyewitness Ingordo, a non-party to this adjudicatory proceeding, was credible based on the voluntary testimony given in conjunction with Ingordo’s written statement, Ingordo’s lack of interest in the outcome of the hearing, lack of motive for providing the testimony given, and the lack of benefit to Ingordo for providing testimony.
25. The hearsay statements introduced into evidence of non-party, eyewitness Tom Bush concerning Respondent’s abusive and disgraceful treatment of a horse while on the track on August 5, 2021, were found to constitute reliable hearsay and be a credible recounting of events observed
a. through the testimony of State Steward Carmine Donofrio and NYRA Steward Brook Hawkins,
b. within the written statements of NYRA Steward Hawkins (Exhibit 7) and Jockey Club Steward Dr. Jennifer Durenberger (Exhibit 8),
c. within the investigative statements of NYRA Investigators Jean Claude Jaramillo (Exhibit 6) and Zach Taylor (Exhibits 5 and 10), and
d. corroborated by the written statement and sworn testimony of non-party witness David Ingordo.
Bush, a non-party to this adjudicatory proceeding, was credible based on the voluntary statements given to investigators and stewards as contemporaneously memorialized, Bush’s lack of interest in the outcome of the hearing, lack of motive for providing the statements given, and the lack of benefit to Bush for providing such statements.
26. Hearsay evidence is admissible in administrative proceedings, such as this matter, pursuant to State Administrative Procedure Act § 306(1) and Commission Rule 4550.5(a). Hearsay evidence, itself, can serve as the basis for an agency decision, though here, such testimony was also corroborated by the testimony of eyewitness Ingordo, who testified at the hearing.
27. The testimony of Respondent was found to be self-serving and less credible, considering Respondent’s interest in the outcome of the hearing, motive for providing the testimony given, and the benefit being pursued by testifying.
28. The affidavit of James C. Hunt, DVM, submitted by and on behalf of Respondent, provided statements outside the scope of veterinary medicine, and its weight with regard to this matter was accordingly reduced.
29. The affidavit of Miguel Gutierrez was accorded weight appropriate to the information therein, that Miguel Gutierrez had no knowledge concerning Respondent’s actions on August 5, 2021, that are at issue in this matter.
30. The Report’s discussion and findings concerning Commission Rule 4035.9 are misplaced, because such Rule pertains to the objective use of a whip by a jockey during a race.
31. There is no requirement that actual, documented physical harm or injury must come to an equine athlete as the result of a person’s abusive, violent, and disgraceful conduct toward the equine athlete, for someone to have engaged in an improper act or conduct that is detrimental to the best interest of racing pursuant to Commission Rules 4022.2 and 4042.1(f). The specific circumstances of such an event must be considered in terms of the situation, the behavior, and the display presented to the public and other horsemen. There is no feasible detailed rule that could describe all ways in which behavior may be abusive, violent, or disgraceful that could apply to every situation. The stewards must utilize their experience and professional discretion in determining whether a violation should be issued based on the facts and circumstances presented to them, as allowed by Commission Rule 4022.12. In any event, it is self-evident that the abusive and violent conduct found herein constitutes improper conduct.
32. The Report’s interpretation that Rule 4042.1(f) requires the “improper…act or conduct” necessarily to apply to “some type of fraud or corruption” as the “focus” of subsection (f) is rejected as an incorrect interpretation of the rule and beyond the scope of the charge to the hearing officer, which was to take testimony, marshal evidence for the Commission and make a report and recommendation. In any event, there does not need to be a nexus between an improper act or conduct to some specific fraud or corruption, for a finding of a violation of Rule 4042.1(f). The plain language of Rule 4042.1(f) sets forth several types of misconduct: improper acts or practices, corrupt acts or practices, fraudulent acts or practices, and conspiracies to commit any of the aforementioned acts or practices, any one of which could be the basis of a violation. A rule subdivision’s title may be a useful interpretative guide, but a title does not negate the plain language of a rule itself. In this rule, the plain language prohibits any improper act or practice.
33. The Report’s declaration that Commission Rules 4022.12 and 4042.1(f) are “impermissibly vague” is rejected as incorrect and outside the scope of a hearing officer’s authority in conducting an adjudicatory proceeding on behalf of the Commission. Courts of competent jurisdiction have ruled that similar regulatory
34. language is not impermissibly vague.
35. The language of Commission Rules 4022.12 and 4042.1(f) clearly applies to the act of striking a horse during training in anger and frustration while calling the horse a “piece of shit,” as an improper act or practice and an act that is detrimental to the best interests of racing.
36. The hearing officer is tasked with making a report and recommendation to the Commission, after gathering evidence and marshaling a record for the Commission’s review, and applying the current, relevant law; it is neither requested of, nor appropriate for, the hearing officer to opine on the legality, constitutionality, or “vagueness” of current law, including Commission regulations. If a party to a proceeding wishes to argue such, the hearing officer may note the argument on the record to preserve it, but the hearing officer is not charged with ruling on the argument.
37. The proper standard of proof in this hearing was preponderance of the evidence, not substantial evidence. The Commission’s Counsel’s offering of proof met the preponderance of the evidence standard of proof in this matter. In any event, the evidence herein establishes a violation under either standard.
38. The State Steward’s discretion to issue the original violation and penalty to Respondent, and Commission’s Counsel’s request for additional penalties to be assessed, were supported by the testimony and exhibits provided at the hearing.
39. In a de novo adjudicatory matter, the Commission may impose any lawful penalty. The Commission is not limited to the penalty initially imposed by staff before the de novo hearing was requested. This adjudicatory matter is not an appellate proceeding limited to review of the penalty issued by the State Steward.
The Commission concluded a fine of $5,000, a license suspension of at least 90 days and the successful completion of an anger management course approved by the Commission before having Respondent’s licenses reinstated was an appropriate sanction in light of the serious and public nature of the animal abuse established, the danger to horses and others of unrestrained anger by a participant on and around the track, and Respondent’s apparent lack of appreciation for proper behavior toward a horse and the role of the equine athlete in racing. THEREFORE, based upon the entire record (including, without limitation, the evidence specifically relied upon by the Hearing Officer), the Report, and the findings and conclusions adopted by the Commission, it is hereby:
ORDERED, that Respondent violated 9 NYCRR §§ 4022.12 and 4042.1(f).
ORDERED, that Respondent is fined $5,000.
ORDERED, that Respondent’s Commission-issued licenses (# 1559080 and # 1508228) are suspended for at least 90 days, and Respondent must complete an anger management course approved by the Commission before having Respondent’s licenses reinstated.
ORDERED, that during such time as Respondent’s licenses remain suspended, Respondent shall not directly or indirectly participate in New York pari-mutuel horse racing; Respondent is denied the privileges and use of the grounds of all racetracks, and Respondent is forbidden to participate in any share of purses or other payment. In addition, the privileges of the grounds and participation in pari-mutuel racing in New York is denied to every horse that is (a) owned or trained by Respondent, or any individual who serves as Respondent’s agent or employee; or (b) for which Respondent, during Respondent’s suspension, is involved, directly or indirectly, with the horses training including 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 horses training; and
ORDERED, that the $5,000 fine shall be payable within 30 days of Respondents receipt of this Findings & Order from the Commission, and any failure to make such payment within such 30 days will result in the assessment of interest and/or late payment charges and may result in other collection charges.
DATED: December 19, 2022
These penalties are stayed pursuant to Respondent's challenge of the Commission's Findings & Order through CPLR Article 78.
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| Fined: $5000.00 |
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