Opinion
No. 73-731
Decided February 20, 1974.
State Racing Commission — Rules of Racing — RC-13-02 — Trainer accountable for condition of horse — Constitutionality — R.C. 3769.03 — Suspension of trainer's license — Hearing — Due process.
RC-13-02, the insurer rule of the Rules of Racing promulgated by the Ohio State Racing Commission, which imposes strict accountability upon a trainer for the condition of the horse he enters in a race, is neither unconstitutional nor beyond the scope of authority granted the commission by the General Assembly pursuant to R.C. 3769.03.
CERTIFIED by the Court of Appeals for Franklin County.
The Ohio State Racing Commission, pursuant to R.C. 3769.03, promulgated Rules of Racing RC-13-01, RC-13-02 and RC-11-10.
RC-13-01 provides, in pertinent part:
"(B) Following the running of each race * * * a urine specimen shall be taken from the horse which finishes first in each race * * * for the purpose of analysis * * *.
"* * *
"(E) * * * The commission shall require that all specimens be analyzed. * * *
"(F) Should the analysis of a specimen prove positive, showing the presence of any narcotic, stimulant, depressant, chemical or drug of any kind or description, the owner of the horse * * * shall forfeit the purse and any trophy or award, and if such purse shall have been paid before the maker of such payment shall have been notified of the result of the analysis, said horse and said owner, and the trainer of such horse, shall stand suspended * * *. Nothing herein shall be construed to prevent the commission, in its discretion, from continuing any suspension made pursuant to the above provisions for such period as the commission may determine."
RC-13-02, designated the "insurer rule," provides, in pertinent part:
"The trainer shall be the absolute insurer of, and responsible for, the condition of the horses entered in a race, regardless of the acts of third parties. Should the chemical or other analysis of saliva, urine, or blood specimens prove positive, showing the presence of any narcotic, stimulant, depressant, chemical or drug of any kind or description, the trainer of the horse, may, in the discretion of the commission, be subjected to any or all of the following penalties: suspension, revocation of license, being ruled off. * * *"
RC-11-10 provides:
"When a trainer is to be absent from his stable or the grounds where his horses are racing for a period of more than two racing days, and his horses are entered or are to be entered, he must provide a licensed trainer to assume the complete responsibility for the horses he is training. Such licensed trainer shall sign in the presence of the stewards a form furnished by the Racing Commission accepting complete responsibility for such horses being trained."
Edward H. O'Daniel, Jr., appellee herein, is an owner and trainer of thoroughbred race horses. From February 17 to February 24, 1972, O'Daniel was absent from Toledo's Raceway Park, but had not provided "a licensed trainer to assume the complete responsibility for the horses he * * * [was] training," as required by RC-11-10. During this interval, on February 19, 1972, two horses trained by O'Daniel came in first in their respective races held at Raceway Park. Following the races, urine specimens were taken from the horses pursuant to RC-13-01. The specimens were analyzed, and "proved positive," showing the presence of the drug oxyphenbutazone. Accordingly, the board of stewards at Raceway Park conducted a hearing on February 25, 1972, and, pursuant to RC-13-01 and RC-13-02, declared O'Daniel's two horses "unplaced" in the February 19th running, and ordered O'Daniel suspended for 60 days.
On February 28, 1972, O'Daniel filed with the Ohio State Racing Commission, appellant herein, an appeal from the ruling of the board of stewards.
On March 29, 1972, a de novo hearing was conducted before the commission. From the evidence presented at the hearing the commission issued a finding and order, dated March 31, 1972, which held that O'Daniel was the trainer of record for the two horses; that the urine specimens taken from both horses contained oxyphenbutazone, or a derivative thereof, this being in contravention of RC-13-01 and RC-13-02; and that O'Daniel, while not contesting the presence of oxyphenbutazone in his horses, failed to establish compliance with RC-11-10, so as to relieve himself of a trainer's responsibilities during absence from the race track. The commission ordered O'Daniel's trainer's license suspended for 60 days.
O'Daniel appealed from the findings and order of the commission to the Court of Common Pleas of Franklin County. The Court of Common Pleas found that the "* * * two horses at the Toledo Raceway owned or under the control of appellant [O'Daniel] were shown to have received unknown quantities of a drug designated as oxyphenbutazone * * *," but reversed and vacated the order of the commission, stating that "appellant should not have been found guilty [for violation of RC-13-01 and RC-13-02] in connection with the drugs administered to the horses since there is no evidence that, these horses, not then suffering from pain, would be affected by this drug."
The commission appealed to the Court of Appeals, which (1) reversed the judgment of the Court of Common Pleas, finding that "the violation of Rule RC-11-10 is established by reliable, probative and substantial evidence and the trial court was in error in not so finding," and (2) affirmed "the conclusion of the Common Pleas Court that suspension of the license of the trainer-owner-appellant by the Ohio State Racing Commission, on the ground of a violation of RC-13-01 — RC-13-02 was in error, was correct for the reasons given."
This latter holding deviated from the pronouncement in Fogt v. Ohio State Racing Comm. (1965), 3 Ohio App.2d 423, which upheld the enforcement of the insurer rule despite a clear showing that the sanctioned trainer had lacked guilty knowledge or evil intent.
Accordingly, the Court of Appeals, finding that its judgment was in conflict with the judgment of the Court of Appeals for Shelby County in Fogt v. Ohio State Racing Comm., certified the record of the case to this court for review and final determination, pursuant to Section 3(B) ( 4), Article IV of the Ohio Constitution.
Messrs. Spieth, Bell, McCurdy Newell, Mr. Lawrence I. Byrnes and Mr. Phillip J. Campanella, for appellee.
Mr. William J. Brown, attorney general, and Mr. Robert J. Walter, for appellant.
The principal question presented in this case is whether RC-13-02, the "insurer rule" of the Rules of Racing of the Ohio State Racing Commission, which imposes strict accountability upon a trainer for the condition of the horse he enters in a race, is constitutional, valid and within the scope of authority granted the Ohio State Racing Commission by the General Assembly.
The Ohio insurer rule essentially imposes liability, without fault, upon a trainer of record who enters into a race a horse which has been administered any chemical or drug.
Many states have promulgated similar insurer rules; six of these jurisdictions have judicially scrutinized the rule's validity. One line of cases holds the insurer rule constitutional and valid as an imposition of liability, without fault, in a business requiring strong police measures for the public safety and welfare. Jamison v. State Racing Comm. (1973), 84 N.M. 679, 507 P.2d 426; Sanderson v. New Mexico State Racing Comm. (1969), 80 N.M. 200, 453 P.2d 370; Sandstrom v. California Horse Racing Board (1948), 31 Cal.2d 401, 189 P.2d 17, certiorari denied, 335 U.S. 814; State, ex rel. Morris, v. West Virginia Racing Comm. (1949), 133 W. Va. 179, 55 S.E.2d 263.
On the other hand, a divergent line of cases finds the insurer rule an unconstitutional denial of due process, and requires either an actual showing of trainer negligence, or proof that the trainer administered, or permitted administration of, a substance known to affect the horse's performance, before liability may be imposed. State, ex rel. Paoli, v. Baldwin (1947), 159 Fla. 165, 31 So.2d 627; Mahoney v. Byers (1946), 187 Md. 81, 48 A.2d 600; and Brennan v. Illinois Racing Board (1969), 42 Ill.2d 352, 247 N.E.2d 881.
However, as applied to the facts of this case, those three divergent cases are not persuasive. The Baldwin and Mahoney cases were aptly distinguished in Sandstrom v. California Horse Racing Board, supra ( 31 Cal.2d 401), at 411, as follows:
"* * * The rule considered in Mahoney v. Byers, supra * * * substituted an irrebuttable presumption for an essential fact. Thus evidence was made conclusive which was not so of its own nature and inherent force. In the case at bar liability is not predicated on administration of the drug nor on the failure to exercise due care, and the presence or absence thereof would neither add nor detract. State v. Baldwin, supra * * * would at first appear persuasive since Rule 117, there considered, somewhat parallels Rule 313 now under attack. But that case did not consider the power of a state to impose strict liability, the existence of which is the fundamental basis of our determination. Also, it would appear that the decision in the Baldwin case was influenced decisively by analogy to Mahoney v. Byers, supra * * * where the mechanics rested in the employment of a presumption as conclusive evidence."
Ohio Rule RC-13-02 is similar to Rule 313.
The majority in the third case, Brennan v. Illinois Racing Board, supra, relied solely upon the soundly distinguished cases of Mahoney v. Byers and State, ex rel. Paoli, v. Baldwin, and made no attempt to reconcile those cases with the contrary line of authority from other jurisdictions.
A strong dissent in Brennan, at page 361, pointedly explained that the court in State, ex rel. Paoli, v. Baldwin initially upheld the insurer rule, but upon rehearing, in light of the recently decided Mahoney case, the court applied the reasoning of the Mahoney case to invalidate the Florida insurer rule, and that ten years later the Maryland court in Maryland Racing Commission v. McGee (1957), 212 Md. 69, 128 A.2d 419, "distinguished the Mahoney case and sustained the validity of a rule which imposed an absolute liability upon the trainer to so guard his horses that no drug could be administered."
Thus, the weight of reasoned authority sustains the validity and constitutionality of the insurer rule.
Horse racing is a sizeable enterprise in Ohio. This state has more thoroughbred racing dates than any other state, and is second only to New York in harness racing dates. Hoffheimer, Some Horse-Racing Tips for Lawyers, 50 A.B.A.J. 250 (March 1964). It is much too late in our constitutional history to dwell long upon the obviously sweeping powers of the state to regulate an activity of this kind. Cf. State v. Morello (1959), 169 Ohio St. 213, 216; Goesaert v. Cleary (1948), 335 U.S. 464 (liquor traffic); Kotch v. Bd. of River Port Pilot Commr's. (1947), 330 U.S. 552 (pilotage). The scope of occupational licensing and supervision must vary, of course, with the nature of the business and its impacts. Kotch v. Bd. of River Port Pilot Commr's., supra, at 564; Dent v. West Virginia (1889), 129 U.S. 114 (practice of medicine). Whether the variations be deemed differences of kind or merely of "degree" ( Barsky v. Bd. of Regents, 347 U.S. 442, 473, Douglas, J., dissenting), it is plain that some fields of activity, including the one before us, are subject to the exercise of broad powers for the determination and application of state policy judgments. Solomon v. Liquor Control Comm. (1965), 4 Ohio St.2d 31, 34 (liquor traffic); State v. Kelly (1896), 54 Ohio St. 166, 178 (adulterated food).
A state's regulatory power over horse racing is described by Justice Harlan in Western Turf Assn. v. Greenberg (1907), 204 U.S. 359, 363, as follows:
"* * * Decisions of this court, familiar to all, and which need not be cited, recognize the possession, by each state, of powers never surrendered to the general government; which powers the state, except as restrained by its own constitution or the Constitution of the United States, may exert not only for the public health, the public morals and the public safety, but for the general or common good, for the well-being, comfort and good order of the people. The enactments of a state, when exerting its power for such purposes must be respected by this court, if they do not violate rights granted or secured by the Supreme Law of the land."
The Court of Common Pleas and the Court of Appeals refused to uphold the commission's finding that Rule RC-13-02 had been violated for these reasons: (1) O'Daniel was not "shown to have ordered, participated in, consented to or even to have known of the administration of the drugs to the two horses" and (2) since oxyphenbutazone is a drug which operates to reduce or eliminate pain, there was "no evidence that, these horses, not then suffering pain, would be affected by this drug." However, rule RC-13-02 imposes accountability, without fault or knowledge, upon a trainer whose horse has been administered any chemical or drug.
Since we have determined that horse racing is one of those fields subject to extraordinarily broad regulatory powers, we hold that Rule RC-13-02, of the Rules of Racing promulgated by the Ohio State Racing Commission, which imposes strict accountability upon a trainer for the condition of the horse he enters in a race, is not unconstitutional, void or beyond the scope of authority granted the commission by the General Assembly pursuant to R.C. 3769.03.
Appellee asserts, however, that his license was suspended without that procedural due process required by the Fourteenth Amendment to the United States Constitution. This assertion must fail because it misinterprets the due process guaranty. It is true that the suspension of a trainer's license is a grievous loss. Accordingly, a fair hearing to determine a violation of trainer rules is constitutionally required, in the absence of an emergency, before sanctions can issue against the trainer. Bell v. Burson (1971), 402 U.S. 535 (a hearing to determine fault is required prior to driver's license suspension); Goldberg v. Kelly (1970), 397 U.S. 254 (a hearing is required prior to termination of welfare benefits). Here, appellee was afforded a hearing on February 25, 1972, before the board of stewards at Raceway Park, and was further afforded a full and fair de novo hearing before the Racing Commission. Due process requires no more.
Also, appellee seeks to raise objections in this court to the introduction of evidence in the hearings below. These questions were not raised in the Court of Appeals, and therefore, we do not choose to entertain those collateral matters, but limit ourselves to the question certified to this court by the Court of Appeals. State, ex rel. Wallace, v. Celina (1972), 29 Ohio St.2d 109, 113.
The judgment of the Court of Appeals is affirmed insofar as it held that "the violation of Rule RC-11-10 is established by reliable, probative and substantial evidence," and is reversed as to the balance of its judgment.
Judgment affirmed in part and reversed in part.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE and P. BROWN, JJ., concur.