Opinion
January 23, 1987
Appeal from the Supreme Court, Erie County, Wolf, J.
Present — Doerr, J.P., Boomer, Green, Pine and Balio, JJ.
Determination unanimously confirmed and petition dismissed, without costs. Memorandum: Although we find substantial evidence to support respondent's determination, our decision is without prejudice to any future application by petitioner. On a previous appeal we found substantial evidence to support a determination that petitioner acquiesced in a race-fixing scheme by intentionally driving his horse, White Spirit, in such a manner as to prevent it from finishing first, second or third. Although this was serious misconduct which violates a Board rule ( 9 NYCRR 4117.4 [n]) and justifies the determination herein (Racing, Pari-Mutuel Wagering and Breeding Law § 309), there was no evidence that petitioner benefited financially from the scheme in which he was a relatively minor character (see, Gleason v. New York State Racing Wagering Bd., 98 A.D.2d 964; see also, Matter of Swift v. New York State Racing Wagering Bd., 100 A.D.2d 746). In our view, petitioner should be given an opportunity for reconsideration. It appears from the material submitted by petitioner that he has demonstrated a life-long interest in horses and farming, and his livelihood is threatened by respondent's refusal to license him. "[P]ublic policy suggests that the discretion vested in an administrative agency to grant a license be consonant with the policy of the State to assist in rehabilitation, and to avoid discrimination in employment against rehabilitated persons" (Matter of Cantor v. New York State Racing Wagering Bd., 73 A.D.2d 544).