The Appellate Division unanimously rejected Dutrow’s argument that his hearing was unfair and that a top New York racing official should have recused himself from the disciplinary case. The five judges also concluded that the punishment is not excessive considering the trainer’s recent violations and disciplinary history.
Dutrow’s license was ordered revoked by the New York Racing and Wagering Board in October. He has been working under a court-ordered stay.
According to the board, the stay remained in effect Thursday because he hadn’t yet exhausted his legal options. His 10-year ban is among the board’s harshest penalties, second only to the lifetime ban in 2009 of breeder Ernie Paragallo after malnourished horses were found at his Hudson Valley farm.
“We conclude that the revocation of petitioner’s license for a period of at least 10 years and the imposition of a fine was not so disproportionate to his proven, recurrent misconduct as to shock one’s sense of fairness,” Justice Thomas Mercure wrote. While the racing board previously renewed Dutrow’s license despite prior infractions, “it properly relied upon that history in tandem with the instant violations to determine that petitioner engaged in conduct that was improper and inconsistent with the public interest and the best interests of racing.”
Attorney Michael Koenig said he and Dutrow will appeal to New York’s top court and seek a further stay of the penalty. They have 30 days to do that once they are formally served with the decision, meaning Dutrow will be able to keep training horses at least through Saratoga’s summer racing season, Koenig said.
The three-member board in October cited infractions including syringes containing a painkiller and sedative found in Dutrow’s desk and the painkiller butorphanol, an opioid analgesic, found in the urine of his horse Fastus Cactus in November 2010 after it won at Aqueduct Racetrack. The board also fined him $50,000.
The court on Thursday cited “substantial evidence” to support those charges.
The trainer had told a hearing officer that he didn’t know how the syringes got into his desk. A blood test of Fastus Cactus didn’t show any butorphanol, and Dutrow’s expert witness theorized that the urine test might have been contaminated.
He faced brief New York suspensions for drug violations in 2003, 2004 and 2008.
Koenig argued in court that the unprecedented punishment was fundamentally tainted by board Chairman John Sabini’s position in the Association of Racing Commissioners International, whose president had urged the state board to consider revoking the trainer’s license. The attorney said his outspoken client’s due process rights had been violated, and that Dutrow initially faced a 90-day suspension that he appealed, and the case escalated from there despite no new issues.
The court rejected the argument that Sabini should have recused himself, noting he was only an unpaid officer of the international association and had no prior official involvement in Dutrow’s case stemming from that role.
“We believe the court today applied the wrong standard of law and we will now seek to have the Court of Appeals consider this matter,” Koenig said. “The court today said we did not show Mr. Sabini’s bias, but that is not the correct legal standard in cases like this.”
Dutrow trained Big Brown to Derby and Preakness wins in 2008. He was refused a license to race in Kentucky last year.
He was the leading trainer at this year’s spring-summer Belmont meet with 27 winners, according to the New York Racing Association.
Kentucky officials cited a half-dozen concerns about Dutrow, whose license was suspended for 30 days in 2009 after one of his horses tested positive for a breathing stimulant.
Big Brown never violated a drug rule, but Dutrow was widely criticized when he acknowledged the horse had the then-legal steroid stanozolol in his bloodstream during his Derby and Preakness victories. Kentucky and most other states have since banned stanozolol and other anabolic steroids.