ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY - CAMDEN D.C. Civil No. 85-1770.
Before: ADAMS, GIBBONS, and WEIS, Circuit Judges.
Five well known jockeys appeal from an adverse decision in their action seeking declaratory and injunctive relief against officials of the New Jersey Racing Commission. The action challenges the constitutionality of regulations adopted by the Commission that permit the State Racing Steward to direct any official, jockey, trainer, or groom to submit to breathalyzer and urine testing to detect alcohol or drug consumption. The regulations provide for sanctions of varying severity, including lifetime suspension form racing for persons testing positive. The jockey plaintiffs contend that the regulations violate their rights under the fourth, fifth, ninth, and fourteenth amendments to the Constitution. After a trial the district court made findings of fact and conclusions of law in which all of the jockeys' challenges to the regulations were rejected. We affirm.
The New Jersey Racing Commission regulates horse racing in that state. Its statutory powers include "full power to prescribe, rules, regulations and conditions under which all horse races shall be conducted." N.J. Stat. Ann. § 5:5-30 (West 1973). The racing industry involves parimutual wagering, and the state receives a part of the revenue derived from such wagering. N.J. Stat. Ann. §§ 5:5-64, 5:5-64.1 (West Supp. 1985).
All parimutual employees and all horse owners, riders, agents, trainers, stewards, starters, timers, judges, grooms, drivers, and others, acting in any capacity in connection with the training of the horses or the actual running of the races in any such race meeting may be licensed by the commission, pursuant to such rules and regulations as the commission may adopt.
Id. § 5:5-33. Because the public wagers on the outcome of races, the Commission's regulations have focused upon the necessary for preserving both the fact and the appearance of integrity of the racing performances. Thus, for example, the Commission's regulations for many years have placed on the trainer of a horse the absolute duty, regardless of fault, to protect the horse from the administration of drugs that might affect its performance. See Dare v. State ex rel. Department of Law and Public Safety, Division of New Jersey Racing Commission, 159 N.J. Super. 533, 538, 388 A.2d 984, 986 (App. Div. 1978) (per curiam). Moreover to assure the discharge of this duty, the Commission's regulations have for many years provided for postrace specimen testing of horses and, if tests prove positive for a drug or foreign substance, for warrantless searches of the premises occupied by the stable involved. See State v. Dolce, 178 N.J. Super. 275, 284-87, 428 A.2d 947, 952-54 '(App. Div. 1981). The present version of these regulations is in Subchapter 14A of the Commission's regulations, entitled Medication and Testing Procedures. N.J. Admin. Code tit. 13, §§ 70-14A.1 to 70-14A.11 (1985).
The regulations challenged in this action are also parts of Subchapter 14A. They were proposed by notice in the New Jersey Register in 1984 and adopted in January 1985, effective as of April 1, 1985. The first regulation requires that officials, jockeys, trainers, and grooms shall, when directed by the State Steward, submit to breathalyzer tests for the detection of alcohol.*fn1 The second regulation provides that every official, jockey, trainer, and groom for any race may be subjected to a urine test for the detections of use of "Controlled Dangerous Substances", and may be subjected to sanctions for failure to submit to such a test, and for positive results in such a test.*fn2
Shortly after the effective date of the regulations, the jockeys, all of whom are licensed by the Commission, filed this action pursuant to section 1983 of title 42 of the United States Code, 42 U.S.C. § 1983 (1982), seeking to restrain the Commission and its agents from enforcing the regulations on the grounds that the regulations were unconstitutional. The plaintiffs moved for a preliminary injunction, which the district court denied. The defendant moved for a dismissal of the complaint or for summary judgment, which the court also denied. After a bench trial the district court denied injunctive relief.
The district court's findings, which are not disputed, establish that jockeys are required to take a breathalyzer test daily, while grooms, trainers, and officials are tested less frequently. The breathalyzer apparatus is set up in or near the jockey's room and is run by an operator. The test, which requires that the jockey step up to a machine and breathe, is painless. The machine determines the level of blood alcohol from the expelled breath and indicates a positive reading by means of a red light visible to others in the room.
The district court found that while postrace urine tests are required "at the direction of the State Steward," N.J. Admin. Code tit. 13, § 70-14A.11(b), the Commission has implemented the urine testing program by a method of random selection. The names of all participating jockeys at a given race are placed in an envelope. The State Steward or a representative draws the names of three to five jockeys for testing. A representative of the Jockey's Guild is invited to supervise the selection of names. The Commission may alter the number of names to be drawn each day. If a jockey's name is drawn more than three times in a seven-day period, the steward disregards the selection and draws another name. The jockeys whose names are selected must provide urine samples after their last race of the day. They are given plastic containers for this purpose. They are also required to fill out certification forms concerning the use of prescription or non-prescription medications. The certification form is to provide information about drugs covered by an exception in the regulations for any "substance . . . obtained directly, or pursuant to a valid prescription or order from a licensed physician." N.J. Admin. Code tit. 13, § 70-14A.11(a). The form, as currently in sue, provides for the optional disclosure of the condition for which the disclosed drug is a treatment. The certification forms contain two identical numbers. One number is removed and fastened to the urine sample, while the other number remains on the form. The anonymous urine sample is then sent to a laboratory for testing, and the form is sent to the Executive Director of the Commission and stored in a safe.
Urine test results are sent by the laboratory to the Executive Director and are available to that official, a designee, and the Commissioners. Pursuant to the express provisions of the regulations, the results are kept confidential even from the enforcement agencies, N.J. Admin. Code tit. 13, § 70-14A.11(e). The test results may only be used "with respect to a ruling issued pursuant to [section 70-14A.11], or any administrative or judicial hearing with regard to such a ruling." Id. The New Jersey Division of Criminal Justice, which is headed by the Attorney General, has issued an advisory opinion voicing no objection to the confidentiality regulation and stating that it is unaware of any statute that would require the Commission to report suspected drug use to any prosecutorial authorities. On May 24, 1985, while this action was pending, the Commission proposed amendments to the urine-testing regulation to broaden the confidentiality requirements so as to cover all information obtained pursuant to the rule, to prohibit disclosure without approval of the Executive Director of the Commission or a designee and to destroy test results ...