Petitioner Alessandro Spano seeks an order, pursuant to Article 78 of the CPLR, annulling, vacating and setting aside respondent New York State Racing and Wagering Board's (the Board) order of March 11, 2008 (Findings and Order), suspending petitioner's harness racing license for a period of 90 days for violating Board Rule § 4120.6 (a) and (c), by possessing equipment for hypodermic injection and drugs in his horse trailer on the grounds of Tioga Downs.

Petitioner is a licensed harness racing driver-trainer. On September 8, 2006, at approximately 6:00 P.M. at Tioga Downs Racetrack, in Tioga County, New York, petitioner's trailer was inspected by private security officers employed by Tioga Downs. During the inspection the security officers found a syringe and a needle under a white leather bag in the gooseneck area of the trailer. When they found the syringe, the security officers called the security director and exited the trailer. They then encountered petitioner, who was returning to his trailer. When the security director arrived, the security officers continued the search, and they found a bag with three syringes rolled into a beach towel. Two of the syringes contained a red liquid and the third contained a clear liquid.

Petitioner requested that his horses be tested to show that they were clean, but that was not done. Petitioner denied ownership of the syringes and needle and said that he did not know anything about them.

When the syringes and needles were tested, the results indicated that two syringes contained a liquid containing carbazachrome salicylate, also known as "Kentucky Red," "a drug which has not been approved for use in a horse by the Federal Food and Drug Administration and did not bear labels stating plainly the contents thereof including the name of each active [*2]ingredient as required by 9 NYCRR 4120.6 (c)." Findings and Order, at 1.

A hearing was held on May 21, 2007 and August 16, 2007. On January 14, 2008, hearing officer Russell H. Baller, Jr. recommended that the Board revoke petitioner's license. On March 11, 2008, however, the Board issued its decision suspending petitioner's license for a period of 90 days.

Petitioner applied for reconsideration, based upon the decision in Matter of William Parker (New York State Racing and Wagering Board, MR No.14/99, September 21, 1999) in which a 45-day license suspension was reversed although hypodermic equipment was found in Parker's stables and tack room. Petitioner's application was denied on April 28, 2008.

In this Article 78 proceeding, petitioner argues that the search of his trailer was conducted by one person who did not have a license from the Board and another person who, though possibly was licensed by the Board, was not a licensed peace officer. Petitioner further argues that the syringes were not his, and that when they were found, he was not present, and his trailer was unlocked and open, and that the Board failed to show that the syringes were his. Petitioner also challenges the chain of custody for the syringes and needle that were tested by the Board, and finally, contends that the decision of the Board to suspend his license for 90 days was arbitrary and capricious in light of the Parker decision.

The Board argues that this proceeding should be transferred to the Supreme Court Appellate Division, pursuant to CPLR 7804 (g) because the questions raised by petitioner go to the question of whether there was substantial evidence for the ruling of the Board. Citing County of Nassau v State of New York (249 AD2d 353 [2d Dept 1998]), the Board further argues that the transfer should be to the Appellate Division Third Department, pursuant to CPLR 506 (b), because the Board has its principal office in Schenectady County and the hearings were held at the Board's Schenectady office, therefore, the "material events took place" in Schenectady County.

In response, petitioner contends that the Board maintains an office in New York City and that numerous cases against the Board have been litigated in New York County, which does not possess a licensed pari-mutuel racetrack within its borders.

CPLR 506 (b) states as follows:

(b) Proceeding against body or officer. A proceeding against a body or officer shall be commenced in any county within the judicial district where the respondent made the determination complained of or refused to perform the duty specifically enjoined upon him by law, or where the proceedings were brought or taken in the course of which the matter sought to be restrained originated, or where the material events otherwise took place, or where the principal office of the respondent is located ... .

Although the Board may have an office in New York City, there is no indication that any proceedings were brought or that any material events took place in this county. Rather, the initial events took place at the racetrack in Tioga County and the hearing took place in Schenectady County, as did the ultimate decision of the Board. Petitioner relies on Matter of Brothers of Mercy Nursing and Rehabilitation Center v De Buono (237 AD2d 907 ([4th Dept 1997]) in which the court found that the material events took place at the nursing home involved and not at the [*3]agency's office where the Medicaid rates were computed. According to the Court in that case, the location of the material events is "the county wherein occurred the underlying events which gave rise to the official action complained of." 237 AD2d at 907-908 (internal quotations and citations omitted). Here, that, at best, would indicate that the petition could properly have been filed in Tioga County, where the search occurred.

The Board has, however, failed to follow the demand and motion procedures set forth in CPLR 511 (a) and (b), and, therefore, it is not entitled to a change of venue as a matter of right. Matter of Howard v New York State Bd. of Parole, 5 AD3d 271 (1st Dept 2004); Banks v New York State and Local Employees' Retirement Sys., 271 AD2d 252 (1st Dept 2000).^[FN1]

With respect to the question of transfer to the Appellate Division, pursuant to CPLR 7804 (g), the court must "first dispose of such other objections as could terminate the proceeding... ." CPLR 7804 (g).

Petitioner contends that the search of his trailer was improper because it was conducted by one security person, who was not licensed, and the other, who, though licensed, was not a peace officer.

The court notes from the outset, that the activities at a racetracks are highly regulated, and administrative searches of vehicles at a racetrack do not have the same constitutional protections as other searches, such as searches of a dormitory.

Anobile v Pelligrino, 303 F3d 107, 123 (2d Cir 2002).

Pursuant to the regulations governing possession of hypodermic equipment and controlled substances at a racetrack:

Each track, the board and the judges or their designees shall have the right to enter into or upon the buildings, stables, rooms, motor vehicles or other places within the grounds of such track to examine the same and to inspect and examine the personal property and effects of any person within such places; and every person who has been granted a license by the board, by accepting his license, does consent to such search including a personal search and to the seizure of any drugs or hypodermic syringes, hypodermic needles or other devices and if the board shall find that any person has refused to permit any such search or seizure it may [*4]impose such punishment as may be appropriate.

Petitioner contends that, nonetheless, the search was improper because one of the security officers, Matthew Cosner, did not have a license from the Board, and Jason Sullivan, though licensed, was not a peace officer.

With respect to Matthew Cosner's lack of a license, Nicole Robilotto, the Director of Licensing for the Board, submits an affidavit stating that when a person applies for a license to work at a licensed facility and pays the required fee, if the applicant is qualified to work at the facility, he or she is given a receipt which permits the applicant to have licensing privileges pending review of his or her application. According to Robilotto, Cosner was issued a valid receipt by the Board on June 2, 2006, and that receipt was in full force and effect at the time of the search on September 8, 2006.

It is undisputed that Sullivan had a valid license at the time that the search was conducted. There is no provision in the regulations authorizing inspections which requires that those inspections be conducted by peace officers and certainly there is no such constitutional requirement. See Anobile v Pelligrino, 303 F3d 107, supra.

Petitioner's argument regarding the validity of the search is, therefore, unavailing.

Accordingly, since the remaining issues raised by the petition turn on the matter of substantial evidence it is hereby

ORDERED that the application by petitioner seeking to vacate and annul a determination by respondent is respectfully transferred to the Appellate Division, First Department, for disposition, pursuant to CPLR 7804 (g). This proceeding involves an issue as to whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction of law, is, on the entire record, supported by substantial evidence (CPLR 7803 [4]); and it is further

ORDERED that the Clerk of the Court transfer the file to the Appellate Division, First Department, upon service of a copy of this order with notice of entry.

The foregoing shall constitute the decision and order of this court.

This Constitutes the Decision and Order of the Court.

Dated: February 18, 2009

ENTER:

_____________________

J.S.C.