Richie Gazer | Horse Racing Free Tips

Denied Commission Stay, Trainer Noda Fights NYSGC Penalty in Court

In an effort to fight a 90-day suspension and $5,000 fine for “striking a horse excessively” during a 2021 workout at Saratoga Race Course, trainer Orlando Noda has commenced proceedings in Schenectady Supreme Court that he hopes will prove the New York State Gaming Commission (NYSGC) acted unlawfully last month when it rejected an appeal hearing officer's recommendation that his case be dismissed without penalization.

Noda's legal filing is known as an Article 78 review, which pertains to a New York state law by which a petitioner can ask a court to review a decision or action of a state official or administrative agency.

Article 78 filings have a reputation for being costly to litigate and very time consuming, sometimes dragging on for months or even several years in the court system.

Although the two cases are not related, Noda's penalty got handed down during the same Dec. 12 NYSGC meeting as a ruling imposed upon Richie Gazer, the longtime New York Racing Association head clocker who was suspended 30 days and fined $2,500 for “altering a published work of a horse to make the horse eligible to race.”

But taken together, those two same-day adjudications share a commonality in that both decisions by the NYSGC represented a forceful rejection of each hearing officer's months of work in conducting the appeals and writing up the reports.

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 NYRA tracks.

Although such outright rejections are unusual, most racing commissions nationwide are not bound to accept the opinions of hearing officers, who are often attorneys, that they hire to hear appeals.

In both Noda's and Gazer's cases, their respective attorneys had asked the commission for a stay of their penalties pending Article 78 filings. Both were denied last month by the NYSGC.

“I asked the commission for a stay as a courtesy,” Drew Mollica, Noda's attorney, told TDN. “I was denied on Dec. 20. I was in court Dec. 28, and the judge issued a stay. He can continue training. We have filed our Article 78 and we are pursuing a full and fair review of this unjust decision. In this case, the record is clear: There never was, and there is not now, any evidence that Mr. Noda did what they accused him of, and the hearing officer knew that.”

The hearing officer who oversaw Noda's appeal, S. David Devaprasad, wrote in his Nov. 1 report that, “The regulations Respondent is alleged to have violated…are impermissibly vague and [there are no written] standards as to what constitutes the proper or improper use of a crop or whip while training a horse.”

The report continued: “The testimony at the Hearing of the Commission's single eyewitness of the alleged incident was simply not sufficient (nor any more credible than Respondent's testimony in defense) to establish that Respondent engaged in any action detrimental to the best interest of racing generally or was guilty of any improper, corrupt, or fraudulent act or practice…”

Back on Dec. 12 NYSGC chairman Brian O'Dwyer disagreed. In reading Noda's decision into the record, he 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.”

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 officers' recommendations in the two cases.

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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.

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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NYRA Racing Secretary Doleshel to Appeal Fine

Keith Doleshel, fined $2,000 by the New York Gaming Commission for “failing to conduct business in a professional manner,” will appeal that ruling before the commission, and has retained attorney Drew Mollica to represent him, according to Mollica.

The ruling stemmed from an incident at Saratoga in which an unauthorized agent was allowed to claim a horse this past summer. The New York State rules of racing require that an individual be licensed with the Gaming Commission and registered with The Jockey Club. After the claim, NYRA officials informed the Gaming Commission of the error, and Doleshel was fined on October 20.

The fine was one of four levied upon NYRA employees this year: Doleshel was fined $2,000 in April after a horse not fully registered as a New York-bred competed in two New York-bred races; NYRA Senior Vice President of Racing Frank Gabriel was fined $4,000 for failure to follow proper claiming protocol, and clocker Richie Gazer was fined $2,500 for reporting the half-mile time of a five-furlong workout.

“Keith Doleshel is a valued employee who conducts himself with a high degree of professionalism at all times,” said NYRA's Vice President of Communications Pat McKenna. “He has every right to appeal this decision, and NYRA continues to question the rationale for issuing significant financial penalties for alleged errors that are inadvertent and administrative or clerical in nature.”

“Anyone who knows Mr. Doleshel during his tenure at NYRA knows that he always conducts business in a professional manner,” said Mollica, “and he denies that he has not done so in this case. He has never been able to confront this charge, because he has never been told what he did wrong. As such, the scarlet letter of unprofessionalism cannot stand and we must appeal.”

“Mr. Doleshel had a competent person acting as the claims clerk,” said Mollica. “A mistake may have been made in the office or by The Jockey Club, but it had nothing to do with him acting unprofessionally.”

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Op/Ed: NY Gaming Commission Gets It Wrong..Again

When the news was reported earlier in the week that a NYRA clocker had been charged with altering a published workout, it may have seemed at first that a significant penalty was in order. Workouts are an important part of a horse's history and gamblers must be able to have trust in their accuracy. The New York Gaming Commission is alleging that clocker Richie Gazer played around with the workout of a horse named Papi On Ice (Keen Ice) and suspended him for 30 days and fined him $2,500. He was charged with “altering a published work of a horse to make the horse eligible to race.”

But, in this case, dig just a little bit deeper and apply just a modicum of common sense to the situation and you'll likely conclude that Gazer did nothing wrong. Unfortunately, when it comes to the Gaming Commission common sense seems to be in short supply.

Thanks to the reporting by Dave Grening in the Daily Racing Form, we know what happened. On May 1, Papi On Ice was credited with a five-furlong work in 1:04.60 over the Belmont Park training track for trainer Randi Persaud. The work was important because the horse needed to have a satisfactory workout in order to get off of NYRA's poor performance list. The poor performance list was created in 2015 and was part of an effort to increase safety at the New York tracks.

If a horse is beaten by 25 lengths or more, the stewards have the option of placing the horse on the list. On April 16, Papi On Ice was beaten 26 3/4 lengths in a maiden special weight race at Aqueduct, finishing fifth in the field of five. To get off the poor performance list, a horse must come back with a subsequent four-furlong workout in :53 seconds or better. For whatever reason, workouts longer than four furlongs do not count.

Because, by the letter of the law, Papi On Ice had not done what was needed to come off of the poor performance list, the NYRA racing office would not accept the entry when Persaud tried to get the colt into a race. The racing office had no choice because it had to adhere to the rule, even if the rule makes no sense. If a four-furlong workout is sufficient to make the horse eligible, why would a five-furlong workout not be? The longer the work, the better the gauge of a horse's fitness and their ability to be competitive in a race.

Gazer did indeed change the workout, but not the time. He changed the distance. Gazer checked with the clockers assigned to the training track and was told that during Papi On Ice's May 1 work, the horse went the first four furlongs in :51.33, fast enough to get off the list. So, knowing that only a four-furlong workout would get the horse eligible to run again, he changed the work from five furlongs to four.

Maybe Gazer should have left the workout alone. Since the May 1 work, Papi On Ice has had two four-furlong works, one coming May 11 and the next May 25. Both were faster than the :53-second criteria, meaning the horse would have found himself off of the list in short order if the May 1 distance had not been changed. Everyone involved could have just waited it out.

But he chose to change the distance and is now facing a penalty that in no way fights the “crime.” A veteran of some 40 years clocking horses on the NYRA circuit, Gazer, in no way, was trying to deceive gamblers, the racing office or anyone else. Probably, he thought that what he did was no big deal..and it wasn't. And if the rule was not so poorly conceived this never would have been an issue. At the very worst, Gazer deserved a phone call from someone at the Gaming Commission telling him not to do this again. Nothing more.

This isn't the first time we've seen head-scratching rulings or decisions from the New York Gaming Commission. This is the same commission that ruled that aspiring jockey agent and recent college graduate Philip Miller couldn't be an agent because he had no hands-on experience on the backstretch. That doesn't make any sense. You don't need to have been a trainer, a jockey or a groom to be an agent and if the same rule had been applied over the years probably half the agents working the New York tracks now would not meet the criteria to be a jockey agent. Apply a dose of common sense and that rule goes away.

Then there was the case of jockey Trevor McCarthy and his wife, Katie Davis. Thanks to a nonsensical Gaming Commission rule, when both appeared in a race the horses they were on had to be coupled in the wagering. The rule was in place to prevent married jockeys from conspiring to alter the outcomes of races, which is preposterous. The rule, widely criticized as being outdated and sexist, led to fewer betting interests in some races, costing NYRA handle. Apply a dose of common sense and that rule never would have existed in the first place.

(The New York Gaming Commission has taken steps to change the married jockey rule, but the rule remains as it has yet to clear a number of bureaucratic hurdles. A rescission of the rule is expected shortly).

There's nothing wrong with a gaming or racing commission being vigilant and going after-rule breakers. If anything, that's the type of thing the sport could use more of. But pick the right battles. Don't go after married jockeys or a clocker who merely changed a five-furlong workout to a four-furlong workout. Not everything is so black and white. Gazer has appealed his suspension, and, hopefully, once his case is heard he will be exonerated. There was no real harm here. There should be no foul.

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