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Suspended NYRA Clocker Denied Stay, Claims Absence Will ‘Harm’ Horsemen

Richie Gazer, the longtime NYRA head clocker who is set to begin a 30-day suspension and pay a $2,500 fine for “altering a published work of a horse to make the horse eligible to race,” has been denied a stay of his penalties by the New York State Gaming Commission (NYSGC) while he seeks to elevate the case to the state court level.

Gazer's attorney, Karen Murphy, confirmed the NYSGC's denial to TDN on Friday afternoon, shortly after the commission emailed her the decision stating the stay would not be granted. She said at this point, Gazer has exhausted all his commission-level appeals.

“This is a purely vindictive response. I am actually shocked by the whole thing,” Murphy said.

In making the case for a stay to be granted, Murphy had written to the commission that Gazer's “absence from his duties as the Head Clocker for the significant suspension imposed will be harmful to all NY horsemen and horsewomen whose horses rely on his daily services.”

On Dec. 12, the NYSGC voted unanimously to uphold Gazer's commission-level appeal of penalties by rejecting a hearing officer's recommendation that the case be dismissed.

Instead, the commissioners imposed the original penalties that had been handed down earlier in the year by Braulio Baeza, Jr., the NYSGC state steward at the three New York Racing Association (NYRA) tracks.

Gazer's penalty stems from a May 19, 2022, stewards' ruling in which he changed a published five-furlong work by subsequently substituting the correct four-furlong split from within that longer work.

The purpose of providing the half-mile timing was to make a horse eligible to come off NYRA's “poor performance” list, which is governed by a seldom-triggered rule that does not allow for a workout farther than four furlongs.

“The decision to issue the penalty [is] without precedent and lacking strong basis to affirm the decision…” hearing officer Dayrel Sewell wrote in his Oct. 21 report that recommended vacating Gazer's penalty. “Respondent has a spotless 40-year track record, and there is no evidence of corruption or favoritism towards a trainer(s) during his employment as head clocker.

“Although there is no regulation [specific to what Gazer was accused of doing], the Stewards have discretion on how to handle this, but the discretion must be proportionate to the harm and there must be boundaries to the practice of discretion,” the hearing officer summed up.

The commissioners' outright rejection of the hearing officer's months of work in conducting the hearing and writing up the report is somewhat unusual. But in most state jurisdictions, racing commissioners are not bound to accept the opinions of the hearing officers, who are often attorneys, that they hire to hear appeals.

An exasperated Gazer has called the entire ordeal “a joke.” On Dec. 18, TDN's Bill Finley editorialized that the decision by the NYSGC to penalize the clocker was a “disgrace” that bucked common sense.

Murphy told TDN on Dec. 30 that Gazer is still clocking horses, and that he has yet to be informed when his suspension is supposed to start.

“He's at work and he'll be able work until [Baeza] sets the [dates for the] suspension down,” Murphy said. “But am I going to be able to get into court and get an injunction to stop that suspension? I think that's probably a hope that is beyond our reach at this point.”

Murphy explained that Gazer's court appeal involves a type of filing known as Article 78, which is a New York law by which a petitioner asks a court to review a decision or action of a state official or administrative agency to determine whether such action was unlawful.

Murphy added though, that petitioners have to weigh whether going through the courts is worth it, because Article 78 cases are expensive to litigate and often languish in the court system for months or even years.

TDN asked Patrick McKenna, NYRA's vice president of communications, if there was anything trainers needed to know about the morning clocking routine given Gazer's pending suspension and the in-limbo court appeal.

“Richie Gazer is a deeply experienced professional whose presence and skills as a clocker would absolutely be missed at Belmont Park should the NYSGC suspension take effect,” McKenna wrote in an email. “That said, NYRA does have the necessary staff in place to adequately cover his duties.”

Back on Dec. 12, NYSGC chairman Brian O'Dwyer said during the meeting that, “The commission reviewed the entire record [and] established the violation as a matter of fact…. And in particular, found that the conduct was improper in relation to commission rule 4042.1(f).”

That rule prohibits “improper, corrupt or fraudulent” acts or practices in relation to racing or conspiring or assisting others in such acts or practices.

Along with O'Dwyer, NYSGC commissioners John Crotty, Peter Moschetti, Jr., Christopher Riano, Marissa Shorenstein and Jerry Skurnik all voted in favor of rejecting the hearing officer's recommendations not to penalize Gazer.

The outcome of their vote, which had taken place at some point prior to the open, public meeting, was simply read into the record, and the commissioners did not debate any specifics or discuss findings during the Dec. 12 meeting itself.

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The Week in Review: Suspension of NYRA Clocker a Disgrace

The New York Gaming Commission has made so many bad decisions of late that it would be laughable if not for the fact they keep going after good people who have done nothing wrong.

The latest chapter is the story of NYRA clocker Richie Gazer.

Back in May, Gazer was handed a 30-day suspension and fined $2,500 “for altering a published work of a horse to make the horse eligible to race.” The horse in question, Papi On Ice (Keen Ice) was originally credited for a five-furlong workout on May 1 in the time of 1:04.60. At the time, the horse was on NYRA's “poor performance” list, the result of his having been eased in a Mar. 19 race and then losing by 26 3/4 lengths in a Apr. 16 race. In order to get off the list and to be able to race again, he needed a published four-furlong workout in:53 or faster. Oddly, the rule, which is a NYRA rule, requires that the work must be at four furlongs and at no other distance. When made aware that the work had to be a half-mile in order for the horse to get off the list, Gazer changed the distance to four furlongs and the time to what was Papi On Ice's split for a half-mile, :51.33. The Gaming Commission then stepped in and cited a rule that prohibits “improper, corrupt or fraudulent acts or practices in relation to racing or conspiring or assisting others in such acts or practices,” pretty harsh language for a case where all the clocker did was shorten the distance of a workout by an eighth of a mile.

Gazer refused to roll over, hired a lawyer and filed an appeal. A seven-hour hearing was held and the hearing officer recommended that the case be thrown out and that Gazer should not be penalized. It appeared that Gazer had won. But the case took a 180-degree turn last week when the Gaming Commission rejected the hearing officer's recommendation and voted 6-0 to uphold the original suspension. Karen Murphy, the lawyer representing Gazer, told the TDN that in the 30 years she has been dealing with New York racing regulators never before had she had a commission reject a decision from a hearing officer. Why even use a hearing officer if you are going to ignore what they have to say?

This all comes down to a matter of common sense. Gazer used his when he approved changing the distance of the workout, which was necessary to allow the horse to race and, otherwise, affected nothing. The rule is in place to keep clockers from playing games, giving a horse a five-furlong workout in 1:03 when they actually went in :58. That's not what happened here.

But common sense is in short supply when it comes to the Gaming Commission. Perhaps by the very letter of the rule, Gazer was guilty of some sort of infraction. The best way to handle this would have been to issue a warning and to tell him not to do it again. Use common sense. Don't fine him, suspend him and try to sully his reputation with outlandish charges of corruption and fraud. Don't go to such great lengths that the commission, by a 6-0 vote, ignored the findings of a hearing officer.

“Everybody is horrified,” Murphy said. “Richard Gazer has been doing this for 40 years and is respected by everyone. You should be pinning a medal on someone like him, not telling the world he is fraudster.”

It's all part of a troubling pattern. Since April, the Gaming Commission and its steward, Braulio Baeza Jr., have sanctioned four NYRA employees a total of five times and levied fines totaling $14,500. In most cases, it was nothing more than a case of the person making an honest mistake.

In June, Frank Gabriel, the New York Racing Association senior vice president of racing operations, was fined $4,000 for “failing to follow proper claiming protocol” resulting in the track stewards voiding the claim of the horse Battalion (Tiznow) on May 28. There was a mixup regarding the claim of the horse. The horse was claimed for $25,000 by trainer Rob Atras, but the claim was not relayed to the clerk of scales, so the horse was not brought to the test barn. That led to the voiding of the claim.

Someone made a mistake. It happens. And never mind that Gabriel had nothing to do with this. Nonetheless, Baeza saw reason to sanction him because, he told the Daily Racing Form, Gabriel was the head of the racing department.

NYRA Racing Secretary Keith Doleshel has been fined twice since April, on one occasion $2,000 for “failing to conduct business in a professional manner.” According to NYRA, here's what happened: “Due to an unintentional administrative error, an unauthorized agent claimed a horse. . . . NYRA subsequently discovered the error and notified the NYSGC of its findings.” A horse was claimed at Saratoga by someone who was not licensed by the Gaming Commission or registered with the Jockey Club. But, again, it was an “unintentional error” committed by someone who has never previously been accused of being unprofessional and the mistake was caught. Doleshel has appealed the ruling through his attorney, Drew Mollica.

As for Gazer, there doesn't appear to be a path whereby the fine and suspension can now be overturned. Murphy says she plans to make the point that the Gaming Commission didn't follow procedure when it comes to transparency. The commissioners did not debate or discuss the details of the case during the open, public meeting, which she says is required.

“The chairman knows nothing about racing and shouldn't have done what he did,” she said of Gaming Commission Chairman Brian O'Dwyer. “We all should be upset about this on legal grounds.”

But that's probably not going to help Gazer. He will have to pay his fine and sit out 30 days, the latest example of an overreach by the New York Gaming Commission and its steward. Someone who has been doing this a long time and has earned a reputation for being a straight shooter, Gazer deserved far better.

The Woodward and Cigar Mile Downgraded

The American Graded Stakes Committee showed some tough love to NYRA last week, downgrading the Woodward S. and the Cigar Mile H., from Grade I races to Grade II's. The move wasn't without controversy. The Woodward is a prestigious race with a long, rich history. Twenty of its winners are in the Hall of Fame. During a seven-year stretch beginning in 1974, the race was won by Forego (four straight), Seattle Slew, Affirmed and Spectacular Bid. This year's Cigar Mile included four Grade I winners, including the winner Mind Control (Stay Thirsty), which made the timing of the downgrade a bit puzzling.

As tough as this may have been for NYRA to swallow, it was the right move. Everyone complains that, considering the declining number in the foal crop and that top horses usually only race four or five times a year, there are too many graded races and too many Grade I's. You can't have it both ways and complain about the Woodward and the Cigar. The committee is to be commended for making some tough decisions. There are still 440 graded races and 97 Grade I's. That's too many.

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Trainer, Clocker Stunned as NYSGC Rejects Advice of from Hearing Appeal Officers

by T.D. Thornton & Bill Finley

The New York State Gaming Commission (NYSGC) on Monday adjudicated two unrelated penalty appeals by a clocker and a trainer by flat-out rejecting two separate hearing officers' recommendations that those cases be dismissed without penalization.

In both instances, the commissioners voted unanimously to impose the original penalties that had been handed down by Braulio Baeza, Jr., the NYSGC state steward at the three New York Racing Association (NYRA) tracks.

Monday's vote means trainer Orlando Noda now must pay a fine of $5,000, serve a 90-day suspension, and complete an anger management course prior to being reinstated for “for striking a horse excessively while working the horse out at Saratoga Race Course on Aug. 5, 2021,” according to the NYSGC.

And Richard Gazer, a longtime NYRA clocker, has been fined $2,500 and suspended 30 days “for altering a published work of a horse to make the horse eligible to race,” the NYSGC ruled.

The outright rejections of the officers' combined days of conducting the hearings and their months spent writing up the reports is somewhat unusual. But in a number of jurisdictions, racing commissioners are not bound to accept the opinions of the officers they hire to hear appeals.

Drew Mollica, who represents Noda, told TDN in a phone interview he was stunned by the NYSGC's decision.

“This is crazy. I was just telling my colleagues, 'I win, but I lose,'” Mollica said.

“This is madness. The hearing officer is the one who heard the evidence. On what basis, what evidence, did the commission use to overturn the hearing officer's recommendation?” Mollica asked rhetorically.

Noda, who has been training since 2019, is also licensed as an exercise rider.

In his reading into the record of the decision, NYSGC chairman Brian O'Dwyer said that, “The commission duly deliberated and considered this matter, and determined by a 6-0 vote to reject the hearing officer's report and recommendations. In doing that, commissioners reviewed the entire record, and established by a preponderance of evidence that Noda's conduct was improper and detrimental to the best interest of racing, and determined that the appropriate penalty was that which was given by the stewards.”

Mollica said he will confer with Noda about using “every legal remedy at his disposal” to fight the commission's order, “because the hearing officer vindicated him and found that he did nothing wrong.”

Gazer's penalty stems from a May 19, 2022, ruling in which the commission stated he “alter[ed] a horse's workout time while training at Belmont Park.”

The horse in question, Papi On Ice (Keen Ice), was initially credited with a five-furlong work in 1:04.60. The work was later changed to a half-mile in :51.33.

Because Papi On Ice had been beaten more than 25 lengths in a previous start, that result triggered a precautionary placement on NYRA's “poor performance” list. In order to get off that list, a horse must work a half-mile in :53 or faster. But the rule does not allow for a workout farther than a half mile.

Because Papi On Ice's workout was initially published as a five-furlong move, the racing office would not accept the colt's entry for a race.

Gazer told DRF.com back in May that the time of the work was not changed, but that the distance was shortened to comply with NYRA's rule. He did not time Papi On Ice himself, but a subordinate clocker told him the horse did work a properly timed half mile as part of the longer five-eighths breeze.

“This is a joke. It really is,” Gazer told TDN Dec. 12. “I've been doing this for 40 years. The horse was on the other training track, went a half-mile, and galloped out five-eighths and the trainer, Randi Persaud, wanted the five-eighths time. But they have that rule where he had to have a half-mile workout. It's a stupid rule. They called me up and I said I would change it. It was no big deal. It was either :51 for the half or 1:04 and something for five-eighths.”

Gazer continued: “We had a seven-hour hearing, [the hearing officer] recommended that they drop all the charges. And then they do this. It doesn't make any sense.”

Chairman O'Dwyer said Monday that the commissioners saw it differently.

“The commission reviewed the entire record [and] established the violation as a matter of fact,” O'Dwyer said. “And in particular, found that the conduct was improper in relation to commission rule 4042.1(f).”

That rule prohibits “improper, corrupt or fraudulent” acts or practices in relation to racing or conspiring or assisting others in such acts or practices.

The commissioners did not debate or discuss the details of the two cases during the open, public meeting, which is standard for the way the NYSGC usually issues appeal outcomes after a hearing officer issues a report.

Based on past practice, the NYSGC generally receives such reports and takes its vote on the hearing officer's recommendation at some point before the meeting, and the chairman then reads the results into the record when the meeting goes into session, explaining the vote in one or two sentences.

Karen Murphy, an attorney who represents Gazer, told TDN in an email that, “In the 30 years that I have been practicing before the Gaming Commission (and its predecessor) this has never happened….The decision in this matter was dependent on the credibility of the proffered witnesses. In recommending that all the charges be dismissed, including a 'fraudulent, corrupt act' charge, the designated Hearing Officer made a determination in favor of Mr. Gazer's credibility. Today, the Commission rejected that credibility [and] did so without giving any specific reasons or findings…”

Murphy added that the NYSGC's ruling against her client amounted to a failure of the open-government test, “and in doing so abjectly failed in its obligations under law to Mr. Gazer. We look forward to righting this wrong.”

The penalties for Noda and Gazer will go into effect within a few days upon formal issuance of the commission's findings and order.

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Ky Racing Commission Shoots Down Dutrow Attempt to be Reinstated

Suspended trainer Rick Dutrow’s attempts to resume his career were dealt a blow Tuesday by the Kentucky Horse Racing Commission’s License Review Committee. After hearing from Dutrow and others who testified on his behalf, the committee voted unanimously to allow Dutrow to withdraw his application for a license. It was within the committee’s right to grant Dutrow a license, with or without conditions.
Dutrow’s attorney, Karen Murphy, reluctantly agreed and withdrew the application for the license.

Dutrow was suspended for 10 years in 2011 by New York regulators for what it alleged was a long history of racing violations. He fought off the suspension in the courts for nearly two years before exhausting his appeals and began taking his penalty in 2013. Along the way, Dutrow has picked up a number of supporters, many of whom believed the penalty was far too harsh and that Dutrow was targeted because of his brash personality. There have also been allegations that syringes found in Dutrow’s barn were planted. Those allegations have been made by former New York Gaming Commission steward Stephen Lewandowski, who was among those who testified Tuesday on Dutrow’s behalf.

Murphy brought the case to Kentucky after her attempts to have the case revisited in New York failed. Had Dutrow been given a license, he would have been able to train in Kentucky but likely would have remained suspended in New York until 2023.

After hearing the decision, Murphy was clearly upset.

“I can’t tell you how disappointed I am,” she told the committee. “Can I ask you all a question? There was nothing persuasive in everything we supplied to you? I don’t know what you want. I don’t know what you considered. I don’t know what you found. I don’t know what you found so unpersuasive that you took this action, which I find to be profoundly disappointing. I’d like an answer.”
Murphy was told by chair Ken Jackson that it was the committee’s policy not to comment on its rulings once they had been made.

Appearing on the teleconference, Dutrow, 60, pleaded with the committee to allow him to resume training. He was emotional, talked in a shaky voice and appeared to be near tears.
“The racetrack means everything to me, my family,” he said. “It’s just really been a hard time with this. Just watching from afar and saying, ‘Man, I used to do this. Why am I not doing it anymore?’ I have a had a hard time with that. Since I have been away I have had a chance to reflect on things and look at myself. I know that I am part of the problem. There’s no question about that but I have done a lot of time for this. I just need an opportunity to train horses. That’s all I want to do. That’s all I’ve ever wanted to do. I’m sorry to take up all your time and cause all this stuff, but I just need to train horses. Please.”
Trainer Dale Romans was the first to testify for Dutrow and said New York racing officials were out to get his fellow trainer.

“I cannot sit on the sidelines and let this happen to one of my colleagues because what will ever stop it from happening to me?” Romans said. “In the racing world we are so concerned about integrity, and it is important to the game. Buy you also have to have integrity for people who work in the game. What this boils down to is a vendetta in New York. With all the evidence that is obvious.”
Veterinarian Dr. Larry Bramlage testified that he had found Dutrow to be someone who took excellent care of his horses and had an impressive record when it came to safety.

“My experience with Rick is simply how he treats these horses,” Bramlage said. “His approach to training is impeccable. He never takes short cuts with anything. He always goes with the best alternative for the horse. He never sacrifices a horse’s welfare to try to win a purse before something becomes clinical. His record on lack of fatalities speaks to that and to his approach for training the horse. I’m a big fan of how he approaches training the race horse.”

By allowing Dutrow to withdraw his application it will not go on his record that he had a license application denied. That could make it slightly easier for him to win reinstatement in another state, but he and his legal team are running out of options. Kentucky is off the table for now and New York does not seem inclined to even look into Dutrow’s case. Finding a racing commission that would go against those two states would likely be difficult.

In a recent story in the New York Daily News on Dutrow’s fight to be reinstated, it was reported that Dutrow has lost his home and filed for bankruptcy.

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