Home » 2012 Issues » February 15, 2012 » RWB-43-11-00003-A Testing of Certain Licensees and Officials in Horse Racing Activities for Blood Alcohol Content in Excess of .05 Percent
RWB-43-11-00003-A Testing of Certain Licensees and Officials in Horse Racing Activities for Blood Alcohol Content in Excess of .05 Percent
2/15/12 N.Y. St. Reg. RWB-43-11-00003-A
NEW YORK STATE REGISTER
VOLUME XXXIV, ISSUE 7
February 15, 2012
RULE MAKING ACTIVITIES
RACING AND WAGERING BOARD
NOTICE OF ADOPTION
I.D No. RWB-43-11-00003-A
Filing No. 74
Filing Date. Jan. 31, 2012
Effective Date. Apr. 27, 2012
Testing of Certain Licensees and Officials in Horse Racing Activities for Blood Alcohol Content in Excess of .05 Percent
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of section 4042.6; and amendment of section 4104.12 of Title 9 NYCRR.
Statutory authority:
Racing, Pari-Mutuel Wagering and Breeding Law, sections 101(1) and 301(1)
Subject:
Testing of certain licensees and officials in horse racing activities for Blood Alcohol Content in excess of .05 percent.
Purpose:
To detect and deter alcohol intoxication by licensees and officials, thereby ensuring safe operations and integrity of racing.
Text or summary was published
in the October 26, 2011 issue of the Register, I.D. No. RWB-43-11-00003-P.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
John J. Googas, Racing and Wagering Board, One Broadway Center, Suite 600, Schenectady, New York 12305-2553, (518) 395-5400, email: info@racing.ny.gov
Assessment of Public Comment
The Board received a letter from the Empire State Horsemen's Alliance. The letter included correspondence which was originally sent to the Board during the preliminary rule drafting process in August 2011. In their letter, they state that the clause in 4104.12(c)(2) which states "The presence of.05 percent alcohol in the blood by weight per volume" in the rule should include the language "or more" when referencing the blood alcohol content. In fact, that revision was included in the proposed rulemaking, which states "The presence of.05 percent or more alcohol in the blood by weight per volume. . ." The Board intended for the rule, as originally written, to include.05 percent or above since any amount over and above necessarily includes.05 percent. The Board made the revision to eliminate confusion and since it was implied in the original rule, it is not considered an alternative to the original rule.
The Alliance also stated concerns that the rule would be applied arbitrarily to licensed persons at the harness track and specifically would subject owners to alcohol level testing even if they were not driving, training, grooming or in any other way functioning as an observer of their horse. The Alliance noted that the Board already has a rule, 9 NYCRR 4104.10(b), that authorizes officials to exclude owners from the paddock for improper decorum. Third, the Alliance also took issue with the penalties, including revocation of a license and a requirement that a licensee seek treatment prior to his or her return to harness racing. Since the existing harness rule already authorizes the Board to administer alcohol testing and impose penalties as it deems appropriate, and the proposed rule merely offer clarifying language in the application of the existing rule, the Board has decided to keep intact the proposed rule without the modification suggested by the Alliance. Furthermore, there has been no known case where the existing alcohol testing rule has been applied arbitrarily or penalties have been imposed by the Board that were alleged to have been "shocking the conscience" or "embarks more on social welfare than paddock safety." These comments were considered when they were first submitted in August and again when they were resubmitted on October 28, 2011. No changes were made to the proposed rule pursuant to these comments.
