R. Belcher v. State Harness Racing Commission (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Robert Belcher, Petitioner v. State Harness Racing Commission, Respondent BEFORE: : : : : : : : No. 969 C.D. 2007 Submitted: November 9, 2007 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE FRIEDMAN FILED: February 5, 2008 Robert Belcher (Belcher) petitions for review of the April 20, 2007, order of the State Harness Racing Commission (Commission), which affirmed Belcher s ejection from, or denial of admission to, The Meadows Racetrack s (The Meadows) facilities. We also affirm. Belcher, a licensed horse trainer, began his career at The Meadows in the mid-1980s. In 2001, a horse trained by Belcher tested positive, post-race, at an Ohio race track for a morphine derivative drug, which is classified as a Category I drug (2001 drug violation). As a result of the 2001 drug violation, Belcher s license was suspended for a year; however, Belcher was able to continue racing in Ohio and Pennsylvania while he appealed the 2001 drug violation to the Ohio racing authorities. In August 2004, the Ohio authorities upheld the 2001 drug violation and Belcher s one-year suspension. In May 2004, while his appeal of the 2001 drug violation was pending, another horse trained by Belcher tested positive, post-race, for Benzoylecgonine (2004 drug violation). The 2004 drug violation occurred at The Meadows, and, as a result, the Pennsylvania racing authorities fined Belcher $500 and suspended him for 30 days. By letter dated January 26, 2005, The Meadows sent Belcher a Notice of Ejection (2005 Ejection), informing him that he was ejected and restricted from The Meadows facilities, including the racetrack and stables, pursuant to section 215(c) of the Race Horse Industry Reform Act (Act), 4 P.S. §325.215(c).1 Specifically, the 2005 Ejection letter stated: This ejection and restriction is because of your responsibility as trainer for the post-race positive test of a derivative of morphine in Ohio in 2001 and the postrace positive test of Benzoylecgonine in Pennsylvania in 2004. (Findings of Fact, Nos. 6-17.) In July 2006, Belcher submitted a stall application to The Meadows seeking reinstatement and requesting space for his horses. Upon review, The Meadows vice-president and general manager, John Marshall, denied Belcher s application.2 By letter dated July 7, 2006, The Meadows informed Belcher that: 1 Act of December 17, 1981, P.L. 435, 4 P.S. §325.215(c). Section 215(c) of the Act authorizes a licensed corporation, such as The Meadows, to refuse admission to or eject from its facilities any licensed individual, including licensed horse trainers, whose presence there is deemed detrimental to the best interests of horse racing, citing the reasons for that determination. 4 P.S. §325.215(c). 2 Stall applications at The Meadows initially are reviewed by the race secretary and director of security. Their review includes an examination of the United States Trotting Association (USTA) records, which contain the applicant s history of performance at The Meadows as well as at other racing venues. The race secretary and director of security then make a recommendation to Marshall, who evaluates the recommendation and decides whether to grant the application. 2 [w]e are in receipt of your recent stall applications and request for reinstatement. The [attached 2005 Ejection] remains in affect [sic]. (Joint Exh. 1.) On July 14, 2006, Belcher filed a timely appeal from the denial of his stall application to the Commission. Thereafter, the parties agreed that this action would be treated as an ejection from The Meadows (2006 Ejection). (Findings of Fact, Nos. 20-28.) On December 11, 2006, the Department of Agriculture (Department) designated Jackie Wiest Lutz, Esquire, as the Hearing Officer (Hearing Officer Lutz) to take evidence for the Commission on Belcher s appeal, and the Department informed Belcher and The Meadows that a hearing was scheduled before a hearing officer.3 Thereafter, by letter dated March 22, 2007, Belcher s counsel requested that Hearing Officer Lutz recuse herself from the proceedings on the grounds that, in May 2006, she presided over an ejectment appeal involving The Meadows and Belcher s wife, Jenny Belcher. Characterizing two documents that were introduced in Mrs. Belcher s hearing as reflecting negatively on Belcher, Belcher asserted that Hearing Officer Lutz had been irrevocably tainted and biased against Belcher. (O.R. at Exh. M; Findings of Fact, Nos. 29-33.) On March 29, 2007, the hearing proceeded as scheduled with Hearing Officer Lutz addressing Belcher s recusal request as a preliminary matter. Hearing Officer Lutz declined to recuse, stating that she: did not know Belcher or his wife; had no knowledge of the facts giving rise to Belcher s appeal; had no interest, direct or indirect, in the outcome of the proceeding; and had no bias in favor of or 3 The hearing was scheduled for January 24, 2007; however, at the request of Belcher s counsel, the initial hearing was postponed and rescheduled for March 29, 2007. 3 against either party. Hearing Officer Lutz noted further that she presides over hearings for approximately fifteen different state agencies and that any recommendation she makes to the Commission would be based on the evidence and the law before her. Hearing Officer Lutz assured Belcher s counsel that his client would receive a full and fair hearing. The parties then proceeded to present evidence on the merits of Belcher s appeal. In support of its decision to eject Belcher, The Meadows presented Marshall s testimony and documentary evidence. Marshall described Belcher s prior 2001 and 2004 drug violations and corresponding suspensions from racing, and Marshall explained that these past drug violations, as well as the 2005 Ejection from The Meadows, led him to deny Belcher s stall application. (Findings of Fact, Nos. 8-17.) The 2006 Ejection letter listed these same reasons for Belcher s 2006 Ejection. (Joint Exh. 1; N.T. at 47.) Belcher testified that he currently is licensed to race horses in Pennsylvania but that he has not raced at The Meadows since August 2004. According to Belcher, numerous licensed horse trainers and drivers that have Category I drug violations still train and race at The Meadows despite Marshall s policy prohibiting such individuals from participating at The Meadows.4 On crossexamination, Belcher admitted that the only reason he continued racing through 4 Marshall testified that, when he became The Meadows vice-president and general manager in February 2006, he implemented an unwritten policy prohibiting participation at The Meadows by anyone responsible for a confirmed, publicized Category I drug violation. Marshall acknowledged that he applied the policy retroactively to Belcher. (N.T. at 52-53, 62-63.) 4 August 2004 was because he was appealing the 2001 drug violation, that he lost his appeal and that his Pennsylvania and Ohio licenses were suspended for a year because of that violation. Belcher further acknowledged the 2004 drug violation at The Meadows; he agreed that his license was suspended for thirty days based on that violation and that the 2005 Ejection letter accurately described both drug violations. Finally, Belcher admitted that there are no race restrictions on his Pennsylvania Harness Racing License, that he can race in Pennsylvania like any other licensed trainer and that he has, in fact, raced at tracks other than The Meadows since his ejection from The Meadows. (N.T. at 79-88, 92-95.) Based on Marshall s testimony and the documentary evidence, the Commission concluded that the evidence of the past drug violations supported The Meadows 2006 Ejection of Belcher.5 In affirming, the Commission stated: [i]t is beyond question that post-race drug violations reflect negatively on the sport of horse and harness racing. (Commission op. at 19.) The Commission also held that Hearing Officer Lutz did not abuse her discretion in determining that she could hear and dispose of this case fairly. Belcher now appeals to this court.6 5 Hearing Officer Lutz did not issue a decision or make a recommendation to the Commission. 6 Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law or whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. 5 Belcher first argues that the Commission erred in affirming Hearing Officer Lutz s decision not to recuse herself from conducting Belcher s hearing. We disagree. It is well settled that the party requesting a recusal bears the burden of producing evidence that establishes bias, prejudice or unfairness which raises a substantial doubt as to the jurist s ability to preside impartially. Commonwealth v. White, 589 Pa. 642, 910 A.2d 648 (2006). In considering a recusal request, the jurist must first make a conscientious determination of her ability to assess the case in an impartial manner and whether her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine the public confidence in the judiciary. Id. Where a jurist rules that she can hear and dispose of a case fairly and without prejudice, that decision will not be overturned on appeal absent an abuse of discretion.7 Id. Here, Belcher claims an appearance of impropriety based solely on Hearing Officer Lutz s admission of certain documents in a May 2006 hearing involving Belcher s wife. However, Hearing Officer Lutz considered this argument with respect to her ability to hear and dispose of Belcher s case fairly and without prejudice, and she concluded that she could do so, citing numerous reasons why her recusal was unnecessary. In fact, Hearing Officer Lutz stated that: 7 An abuse of discretion is not merely an error of judgment, but occurs where the lower tribunal s judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is the result of partiality, prejudice, bias or ill will. Payne v. Workers Compensation Appeal Board (Elwyn, Inc.), 928 A.2d 377 (Pa. Cmwlth. 2007). 6 [b]ut for the fact that you made it an issue, I would [not] have even known that Mr. Belcher and Jenny Belcher were husband and wife. I would [not] have known that they were relatives. (N.T. at 14.) Moreover, our review of the record reveals no indication that Hearing Officer Lutz exhibited any bias against Belcher.8 Consequently, we are satisfied that the Commission properly determined that Hearing Officer Lutz s decision not to recuse was a conscientious one and was not an abuse of discretion. Belcher next asserts that the Commission erred in affirming Belcher s ejection because The Meadows has given no end date for the 2006 Ejection. Relying on Daly v. Horse Racing Commission, 391 A.2d 1134 (Pa. Cmwlth. 1978), Belcher contends that the law does not support an ejection that does not provide an end date. 9 (Belcher s brief at 21.) However, because Belcher failed to raise this issue before the Commission, it is waived. Section 703(a) of the Administrative Agency Law, 2 Pa. C.S. §703(a) (stating that [a] party who proceeded before a Commonwealth agency under the terms of a particular statute ¦ may not raise upon appeal any ¦ question [other than the validity of the statute] not raised before the agency ¦. ) 8 In fact, Hearing Officer Lutz ruled in Belcher s favor on an objection that limited the reasons for Belcher s ejection to those violations cited in the 2006 Ejection letter and did not allow The Meadows to rely on other alleged violations for its determination. (N.T. at 35.) 9 Belcher relies on our court s statement in Daly that all Orders of Ejection by Racing Associations are necessarily in effect for only a short period of time ¦. Daly, 391 A.2d at 1135. 7 Belcher next contends that The Meadows decision to eject him from The Meadows facilities effectively revokes his trainer s license and interferes with his ability to earn a living as a horse trainer. However, this argument was considered and rejected in Kulick v. Pennsylvania State Harness Racing Commission, 540 A.2d 620 (Pa. Cmwlth.) (holding that a racetrack s ejection of a licensee is not a license revocation), appeal denied, 520 Pa. 620, 554 A.2d 512 (1988). Moreover, Belcher ignores the fact that he admitted that there are no race restrictions on his Pennsylvania Harness Racing License, that he can race in Pennsylvania like any other licensed trainer and that he has, in fact, raced at other Pennsylvania tracks since his ejection from The Meadows. (N.T. at 92-95.) Finally, Belcher asserts that his 2006 Ejection from The Meadows must be overturned because there is not substantial evidence in the record to support it.10 Belcher maintains that Marshall s testimony concerning Belcher s alleged drug violations is insufficient because that conduct occurred prior to the time Marshall became vice-president and general manager of The Meadows. Belcher further asserts that, although the alleged drug violations formed the basis of his 2006 Ejection, The Meadows failed to produce any evidence concerning the legitimacy of those violations. In making these arguments, Belcher apparently ignores the fact that, prior to his current position as vice-president and general manager, Marshall 10 Substantial evidence is such evidence that a reasonable mind might accept as adequate to support a conclusion. Kulick v. Pennsylvania State Harness Racing Commission, 540 A.2d 620 (Pa. Cmwlth.), appeal denied, 520 Pa. 620, 554 A.2d 512 (1988). 8 worked in management at The Meadows for seven to eight years and that Marshall testified that the 2005 Ejection letter and other documents pertaining to Belcher s 2001 and 2004 drug violations were part of The Meadows file on Belcher, which it kept in the ordinary course of business. (N.T. at 21-22, 40-41.) Moreover, despite Belcher s repeated references to the 2001 and 2004 drug violations as alleged violations, we recognize that these violations are not alleged. The 2001 violation was appealed to, and upheld by, the Ohio authorities, and there is no indication that Belcher ever appealed the merits either of the 2004 drug violation or his 2005 Ejection from The Meadows. As stated, a licensed corporation, like The Meadows, has the authority under section 215(c) of the Act to eject any licensed person whose presence it deems detrimental to the best interests of horse racing. 4 P.S. §325.215(c). The Act s overriding purpose is to foster an image of horse racing that would make the image of that industry irreproachable, even in the eyes of a skeptical public. Kulick. To that end, the Commission must discourage conduct that undermines the public confidence and respect in the sport.11 Id. Such proscribed conduct need 11 As our supreme court stated in Smith v. Pennsylvania State Horse Racing Commission, 517 Pa. 233, 239, 535 A.2d 596, 599 (1988): [where a licensee] voluntarily pursue[s] a course of conduct which was calculated to make at least some members of the public believe that the outcome of races is the product of influences beyond the talent, ability and good fortune of the participants[] [t]his activity erodes the public confidence in the industry, and thus frustrates the legislative purpose requiring licensing. Moreover, the Rules of Racing state: (Footnote continued on next page ¦) 9 not be criminal in nature nor proved beyond a reasonable doubt. It is sufficient that the complained-of conduct and its attending circumstances be such as to reflect negatively on the sport. Bocachica v. Pennsylvania State Horse Racing Commission, 843 A.2d 450, 454 (Pa. Cmwlth. 2004) (quoting Daly). Even the appearance of impropriety can reflect negatively on the sport and impair the public s perception of its integrity. Id. Thus, in support of a decision to eject a licensed person from a track, the Act requires nothing more of the corporation than that it cite the reasons upon which its decision is based and that the corporation s determination be reasonable, that is, based upon a reasonable determination that the licensee s presence at the track would be detrimental to the public perception of horse racing as a sport. Bocachica; Kulick. Contrary to Belcher s assertions, the record here, which includes evidence of Belcher s 2001 and 2004 drug violations, is sufficient for a reasonable mind to conclude that, because of Belcher s complained-of conduct, his presence at (continued ¦) [t]he purpose of [the Rules of Racing, found at 58 Pa. Code §§163.302-163.318] is to protect the integrity of horse racing, to guard the health of the horse and to safeguard the interest of the public and the racing participants through the prohibition or control of drugs and medications or substances foreign to the natural horse. 58 Pa. Code §163.302(a) (emphasis added). 10 The Meadows would taint the public perception of the horse racing industry carried on at that facility.12 Accordingly, we affirm. _____________________________ ROCHELLE S. FRIEDMAN, Judge 12 To the extent that Belcher asserts that the Commission violated his due process rights by admitting evidence of Marshall s policy of ejecting licensees with a Category I drug violation because that policy was not cited as a reason in the 2006 Ejection letter, we conclude that any such error was harmless where there is substantial evidence in the record to support those reasons actually cited in the 2006 Ejection letter. 11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Robert Belcher, Petitioner v. State Harness Racing Commission, Respondent : : : : : : : No. 969 C.D. 2007 ORDER AND NOW, this 5th day of February, 2008, the order of the State Harness Racing Commission, dated April 20, 2007, is hereby affirmed. _____________________________ ROCHELLE S. FRIEDMAN, Judge

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