Gaming Commission

Mr. Richard Gazer (Clocker) is hereby suspended thirty (30) calendar days and fined the sum of two thousand five hundred ($2,500) dollars, for altering a published work of a horse to make the horse eligible to race.

Having appealed a stay has been granted.

FINDINGS & ORDER BL 5-2022

The New York State Gaming Commission (“Commission”) conducted a hearing, as requested by Richard Gazer (“Respondent”), after Respondent received notice of the Commission’s fine of $2,500 and 30-day suspension of Respondent from participating in Thoroughbred Racing for altering a published work of a horse to make the horse eligible to race. The violation notice cited 9 NYCRR § 4022.12. The hearing was conducted on the grounds set forth in the Notice of Hearing dated July 1, 2022. The Notice of Hearing charged that Respondent’s occupational license should be suspended or revoked, and Respondent should be fined, based on conduct detrimental to the best interests of racing in violation of Commission regulation 9 NYCRR §§ 4022.12 and 4022.13 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 in-person and by video conference on August 15, 2022.

The Hearing Officer rendered a Hearing Officer Report with recommendation dated October 21, 2022, (the “Report”) which is incorporated herein. The Hearing Officer submitted the Report to the Commission for deliberation, including the Hearing Officer’s recommendation that the Commission dismiss the charges leveled 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 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 pursuant to a general services license.

2.    Respondent is employed by The New York Racing Association, Inc. (“NYRA”) as the head clocker.

3.    In May of 2022, Respondent’s duties included ensuring that accurate workout times at racetracks for Thoroughbred horses were published for the benefit of the wagering public.

4.    The wagering public can consider Thoroughbred horses’ workout times and rely upon published workout times in deciding on which horses to wager.

5.    The decisions of the wagering public on which horses to wager affects the odds and payouts in pari-mutuel wagering.

6.    Trainer Randi Persaud requested that a workout time be recorded on May 1, 2022 at the track at Belmont Park for the horse Papi On Ice (the “Workout”). Persaud’s request was for the Workout to be timed for the distance of 5/8th mile and for no other distance.

7.    A time for the distance requested—5/8th mile—was duly recorded and published in the database Equibase, for viewing and consideration by the wagering public.

8.    On or about May 5, 2022, Persaud asked Respondent to change the recorded workout time to reflect, instead of the 5/8th-mile workout time Persaud had requested on the day of the Workout, a split time the horse had run for only a portion of the 5/8th-mile Workout, on the horse’s way to completing such Workout at the 5/8th-mile distance for which Persaud had requested the timed Workout on May 1, 2022.

9.    Respondent agreed to Persaud’s request and substituted, as the sole published time for the Workout, a time for only a portion of the longer Workout. Such portion was a split time for a one-half mile distance (four furlongs) the horse had run on the horse’s way to completing the longer Workout.

10.  The change in the horse’s recorded time was not a correction of any prior error in clocking or in the entering of the correct recorded time for the requested distance of the Workout.

11.  In making such a substitution with a different time and distance as the sole published workout time to be available to the wagering public, Respondent provided no explanation or notice to the wagering public of the substitution of time and distance or any reason therefor.

12.  In making such a substitution of a different time and distance, Respondent provided no explanation or notice to the track stewards of the substitution of time and distance or any reason therefor. State Steward Braulio Baeza, Jr. credibly testified that he had no knowledge of any practice of NYRA clockers changing published workout times, other than to correct a mistake promptly.

13.  Prior to May 1, 2022, NYRA implemented the use of a list of horses that were not able to compete in NYRA races, a “poor-performance list” to mitigate risk, promote equine safety and welfare, and protect equine athletes and their riders. The list was designed as a safeguard to prevent uncompetitive horses that may be unsound or unhealthy from being entered in races, avoiding injury to such horses and their jockeys, as well as to the jockeys and other horses that would be racing alongside such an uncompetitive horse.

14.  The different time and distance that Respondent substituted as the May 1, 2022 workout time for the horse made the horse eligible for removal from NYRA’s poor performance list and entry into NYRA races.

15.  Respondent admitted to having changed Thoroughbred horses’ workout times on other occasions, unknown to the stewards or the Commission. 

16.  The adjudicatory proceeding held on August 15, 2022, was an administrative hearing conducted pursuant to SAPA Article 3 and Part 4550 of the Commission’s Rules. The Report’s reference to this adjudicatory proceeding as a “trial” (Report, p.8) was in error because it conflicts with applicable law and the Notice of Hearing in this matter.

17.  Respondent was charged with violation of Commission Rules 4042.1(f), 4022.12, and 4022.13. The Report’s description that Respondent was “accused of violating a non-existent rule regarding time substitution that is not included in any official compilation of rules in the NYRA guidebook” (Report, p.8) was in error because it conflicts with the Notice of Hearing in this matter. Respondent was not charged with violation of a NYRA house rule and this adjudicatory proceeding is not enforcing any NYRA house rule.

18.  At the time of the hearing, Dr. Jennifer Durenberger was a steward for The Jockey Club. Dr. Durenberger was not a steward for the NYRA at the time of the hearing. The Report (P.5) describing Dr. Durenberger’s employer was in error because it conflicts with her testimony.

Conclusions of Law

1.    This matter is an adjudicatory proceeding within the meaning of SAPA Article 3 and Part 4550 of the Commission’s rules.

2.    In a Commission adjudicatory proceeding, a 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 determination of the matter. The hearing officer is not acting in the role of a “tribunal” and the Report’s description of the hearing officer’s role as such was in error, because it is contrary to applicable law and the hearing officer was not making the agency’s final determination or decision in this adjudicatory proceeding.

3.    Respondent’s act of changing the recorded, published time and workout distance constituted an act of dishonesty and an improper act or conduct in violation of Commission Rule 4042.1(f), because the substituted time and distance were not for the 5/8th-mile distance requested for the Workout, there had been no request on the date of the Workout for the horse to be timed at a half-mile distance, the wagering public that had relied on the previously-published 5/8th-mile Workout distance could no longer rely on such after the substituted time and distance replaced the Workout time and distance, and no explanation was given to the wagering public of why the time and distance were changed.

4.    Respondent’s action of changing the recorded, published time and distance of a workout, solely at the request of a trainer, were also detrimental to the best interest of racing, in violation of Commission Rules 4022.12 and 4022.13, because the substituted time and distance was not for the 5/8th-mile distance that had been requested for the Workout, there had been no request on the date of the Workout for the horse to be timed at a half-mile distance, the wagering public that had relied on the previously published 5/8th-mile Workout distance could no longer rely on such after the substituted time and distance replaced the Workout time and distance, and no explanation was given to the wagering public of why the time and distance were changed. Making such change solely at the request of a trainer also presents the appearance of impropriety of the relationship between the trainer and Respondent, because the substituted time and distance, without notice to the stewards or the Commission, created the perception that the substitution was made to enable the trainer to benefit improperly by having the trainer’s horse removed from NYRA’s poor performance list by means other than reporting a qualifying workout time at a qualifying distance requested by the trainer before the workout.

5.    The Report’s assertion that the stewards had acted on a “mere whim” (Report, p.9) was in error, because there is no support in the record that the stewards had so acted. Rather, the record establishes that the stewards were concerned, justifiably, with the implications that changing the published workout time and distance may have had on the reliance the wagering public may have placed on the previously published workout time and distance. State Steward Braulio Baeza, Jr. had no knowledge of any practices of NYRA clockers changing published workout times, other than to correct a mistake promptly. To the extent the Report (p.9) takes issue with a perceived arbitrariness in a practice of NYRA clockers changing workout times without action by the Commission, the Report is mistaken, because the record reflects that the State Steward had no knowledge of such improper practices and the Commission cannot be held to have acquiesced in any such practices.

6.    The Commission 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 promulgate specific regulations to prescribe such foreseen 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.

7.    As applied to this matter, it is appropriate to conclude that Commission rules prohibit a clocker from changing the time and distance of a workout at a requested distance to reflect a time and distance that had not been requested and had not been run on that date as a proposed workout of the horse, with such change being solely the result of a request from the horse’s trainer about which the track stewards and/or the Commission had been informed.

8.    As applied to this matter, it is also appropriate to conclude that Commission rules prohibiting improper acts and practices and actions detrimental to racing prohibit a clocker from changing a material aspect of a published workout, such as time and distance of a workout, without informing the track stewards and/or the Commission of the need for the change.

9.    The Commission’s conclusion does not preclude the correction of inaccurate times and distances of horse workouts that had been requested to be timed at a specified distance, as such corrections would enhance transparency to the wagering public, rather than obscure transparency.

10.  There do not need to be dictated standard procedures for changing published workout times. The stewards are charged with the general supervision of Thoroughbred racing at the track. See Commission Rules 4022.8 and 4022.16. The stewards should be consulted whenever a change to a published workout time is contemplated, to enable them to exercise their role in protecting the integrity of racing and wagering. This would enable rare inaccuracies to be corrected quickly and accurately, as may be appropriate, but also establish an appropriate, commonsense control to prevent alterations that might mislead the wagering public. Changing a previously published workout time and distance upon which the wagering public has relied, solely at the request of a horse’s trainer and without notice to or consultation with the stewards is improper conduct and detrimental to the best interests of racing.

11.  The Commission has not encountered a similar violation of these rules by a clocker altering a published workout time and distance. The Commission concluded that the discretion the stewards had exercised in determining a civil penalty of a fine of $2,500 and a license suspension of 30 days was exercised appropriately, in the absence of any precedent of a clocker having so acted, in light of the dishonest, improper and detrimental conduct established at the hearing, the serious nature of potential damage to the integrity of wagering and the trust of the wagering public, Respondent’s lack of transparency in informing anyone of the time-and-distance alteration he accomplished, Respondent’s admission that he has changed workout times on many occasions without the knowledge of the stewards, and Respondent’s apparent lack of appreciation for the improper and detrimental nature of his conduct.

12.  Respondent’s testimony that Respondent changed published times previously without the stewards’ knowledge does not make such activity sanctioned and legitimate. Rather, Respondent’s general admission of prior violations of the same Commission Rules supports the stewards’ discretionary judgment that a serious penalty is warranted in these circumstances.

13.  Sanctions for particular actions or conduct are appropriate even if unprecedented. Regulated parties are not entitled to violate rules by claiming that no one has been held to have violated them in the same manner in the past.

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, 4022.13, and 4042.1(f); and ORDERED, that Respondent is fined $2,500, and Respondents Commission issued license (Receipt # 151307 4) is suspended for 30 days, during which time Respondent shall not directly or indirectly participate in New York pari-mutuel racing or wagering. The $2,500 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