I was looking through the 2008 KHRC rulings today and noticed a recent ruling against Thoroughbred trainer Joseph Crescini. The interesting part is that this ruling by the Kentucky Horse Racing Commission is really only collaterally related to horse racing.
I didn’t catch the original story, which Bloodhorse covered in September. Apparently this guy J.D. Crescini recently signed a guilty plea in the Nelson County District Court on 16 counts of second-degree cruelty to animals. Last year, Nelson County law enforcement found 2 dead horses and 12 starving horses on some property (it’s not clear whether the propery belonged to Crescini), in extremely shady circumstances. Crescini is a Thoroughbred trainer, and it is presumed that most of the horses were Thoroughbreds. In fact, Crescini’s excuse for the horses’ condition was that Thoroughbreds were supposed to be skinny, and that they had previously been on steroids, and with the steroids withdrawn, they were “withering away.” Charming, right? But still a fairly typical abuse case. Enter the KHRC.
On October 3rd, the KHRC issued a ruling suspending Crescini’s license for 2 years. The ruling reads:
After waiving his right to a formal hearing before the Board of Stewards to answer charges of animal cruelty related to the death of two horses discovered on October 12, 2007 by the Nelson County Sheriff Department, Mr. Crescini is hereby suspended TWO YEARS commencing on October 3, 2008 with completion on October 2, 2010 . [...]
The following are the Regulations that the KHRC lists as the basis for the suspension.
810 KAR 1:008 Section 3 (responsibility for proper care, healthy and safety of a Horse)
KHRC cites to the entire Section, the first sentence of which is summarized in parenthesis above. This section clearly sets forth a trainer’s duty to safeguard the health of a horse. However, all of the sub-parts of the Section relate to care at the track.
810 KAR 1:025 Section 3, Subsection 15 (animal cruelty)
This section sets forth the grounds for refusal, suspension, or revocation of a license. It vests in the Commission the discretion to suspend a license on the grounds of “cruelty to a horse or neglect of a horse entrusted to a licensee’s care.”
810 KAR 1:025 Section 3, Subsection 19 (inconsistent with the best interests of horse racing)
This is the most interesting provision. Subsection 19 sets forth (among many others) the following grounds for disciplinary action: “Drug addiction, bad moral character, intemperate habits, bad reputation for honesty, truth and veracity, or involvement in a subject of public notice as involved in any activity which, in the opinion of the commission, may be inconsistent with the best interests of racing by reflection on the honesty and integrity of the sport of racing, or association with persons so characterized.”
Hopefully the incredible breadth of Subsection 19 comes across clearly. “Bad moral character?” A reputation for lying? A lot of state racing regs have a catch-all provision similar to this one, but you mainly see it invoked against those accused of throwing races, illegal bookmaking, doping, etc. The provision is intimately connected with the state’s police power to protect the health, welfare, safety and morals of the public, most often invoked in racing cases to justify penalties issued for drug violations.
This is getting long-winded, so I will only make 2 points:
1. The ruling against Crescini is being appealed. Now, he entered a guilty plea on the animal cruelty charges, so I can’t imagine he’s challenging the factual findings of the Commission. My guess is that he’s challenging the application of the regulation – which governs horse racing – to an incident that occurred far away from any racetrack. The statute that creates Kentucky’s Commission gives the Commission pretty much exclusive jurisdiction over racing. Is this reach into animal welfare a stretch? I think in a lot of states this might be a questionable exercise of discretion on the part of the Commission, largely because the justification most courts give for granting deference to racing agencies is the protection of ‘integrity’ in terms of ‘protecting the betting public.’ The good intentions of the Commission might be worthy, but legislatures typically vest the regulation of animal abuse and cruelty in other administrative bodies, or in law enforcement in connection with the courts.
In Kentucky, however, I think this might be rock solid, despite the fact that these circumstances are only tenuously connected to racing. That’s because Kentucky courts, in upholding Commission decisions, give as the basis for police power both the protection of the betting public, and, more importantly, protecting the interests of the Thoroughbred and the Thoroughbred industry, which is such an asset to the state. If you connect the above regulations to that police power justification and take it to a Kentucky court, the Commission should win.
2. I think I’m pretty safe in asserting that this is somewhat of a landmark ruling by a state racing commission. Has anyone heard of anything like this? For that matter, did anyone hear about this happening? This seems like it took some initiative on the part of KHRC, and I commend them for it.
This ruling is also sort of tantalizing in its application of Subsection 19, above. I’ve always wondered just how far this regulation could stretch.
Moreover, if you go here, you can view the major overhaul that the KHRC made to the license regs this summer, although the new regulation is not yet in effect. In particular, instead of 21 grounds for license suspension/revocation/denial, there are now … 40? (It’s (a) through (nn)).
The importance of this, after my compete failure at being succinct, is that this broad grant of authority could be seen as a way for the Commission to expand its regulatory scope in the face of unforeseen challenges that clearly threaten the integrity of racing – like EPO blood doping – but aren’t yet governed by a specific regulation. The very first cause the new regulation lists as being grounds for license revocation is where “The public interest for the purpose of maintaining proper control over horse racing meetings or pari-mutuel wagering may be adversely affected.”
Who could argue that the public interest for the purpose of maintaining proper control over horse racing may be adversely affected by a trainer using EPO?
At any rate, speculation aside, I applaud the KHRC for acting in the interest of horse welfare and suspending Crescini’s license. And I encourage the Commission to continue to flex its regulatory muscle when situations arise that are clearly adverse to maintaining the integrity of racing and the Thoroughbred industry within the Commonwealth.
5 responses so far ↓
winston // October 22, 2008 at 9:43 pm |
I read about the Crescini case, Paulick Report I think.
I don’t know if California has a subsection 19 or something similar but I don’t understand why Doug O’Neill is given a pass on his most recent rules violation. The man is a cheater and just because he is furry and cuddly and trained Lava Man, nobody is willing to throw his ass out of the game.
Biancone cheated and he was refused entry to the BC. O’Neill has his infraction swept under the carpet.
WTF?
Kerry O'Neill // October 23, 2008 at 9:49 am |
Biancone was operating under a KY suspension during the BC last year, and NJ was honoring that suspension under their reciprocity rule.
O’Neill isn’t operating under a suspension, due to the agreement that put him on probation. That agreement was an act of discretion on the CHRB’s part, I guess because he’s ‘furry and cuddly,’ and not a problem that he was beyond the reach of the regulations.
winston // October 23, 2008 at 11:17 am |
I know you have plenty of time to answer insipid questions on your blog so…
If someone, with O’Neill’s record of violations, can get a pass, what, beyond physical abuse, warrants enforcement?
After all, I expect you to solve the industry problems for me.
Kerry O'Neill // October 23, 2008 at 1:38 pm |
A lot of things “warrant” enforcement. The key lies in the amount of discretion the Board has, and whether enforcement was actually mandatory. So … something has to “warrant enforcement” in the eyes of the Board.
You’d need a statute that says something like “for x violation, the trainer *shall* be suspended for x months,” or whatever. That would be a mandatory penalty, and the Board would have to apply it, if x violation occurred. But you rarely (if ever?) see that.
Here’s California:
Rule No. 1405: “Violation of any provision of this Division, whether or not a penalty is fixed therein, is punishable *in the discretion* of the Board by revocation or suspension of any license, by fine, or by exclusion from all racing enclosures under the jurisdiction of the Board, or by any combination of these penalties. The Board may independently punish any misconduct of any person connected with racing.”
That’s a lot of discretion. Moreover, I have a little trouble reading the CHRB drug violation penalties, seen here:
http://www.chrb.ca.gov/RULE%201843%203%20-%20Penalties%20for%20Medication%20Violations.pdf
I read the very first part to say that the Board will basically ‘consider’ the penalties listed below, but that they aren’t mandatory. At any rate, the mitigating circumstances seem to allow the Board to exercise another heap of discretion. Exercises of discretion beyond the bounds of the authority delegated by the legislature can be appealed by the party affected … but no trainer will appeal a lighter sentence. So you won’t see this kind of thing reviewed.
You’d need mandatory penalties (esp. supplemented by aggravating circumstances) to see consistent enforcement, even within a jurisdiction.
I hope that made sense. Clearly I do have time to answer questions, insipidity or no insipidity.
Teresa // November 1, 2008 at 6:17 pm |
Winston–I can’t speak for any racing authorities, but I can tell you at the high school where I work, we take a lot of care to use “may” instead of “will” when it comes to consequences…you don’t want to be held to a standard that may not apply in an individual circumstance, and to be able to consider individual circumstances.
Now I get that high school’s not horse racing, and that perhaps a stricter standard should apply, but it’s tough to consider every eventuality, and leaving oneself a little leeway is generally a good idea. You just have to have standards written that allow for strict consequences when the circumstances warrant them.