230 N.E.2d 662 | Ohio Ct. App. | 1967
These two cases involve identical issues and were heard together. On June 10, 1966, George Battles was the owner and Robert T. Cheney was the trainer of a race horse named Gene Majesty which finished first in a race at Northfield Park (near Cleveland). Following the race a urine sample was taken from the horse, which, upon analysis, showed the presence of Butazolidin, a drug used to combat arthritic disorders and with pain relieving and fever reducing properties. Following appropriate charges and hearing before the Ohio State Racing Commission the respective licenses of Battles and Cheney were suspended for a period of sixty days for violation of Rule 311 of the Ohio Rules of Racing adopted by the commission, which reads in pertinent part as follows:
"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 or urine samples, or other tests, 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. In addition, the owner of the horse, the foreman in charge of the horse, the groom, and any other person shown to have had the care or attendance of the horse may, in the discretion of the Commission, be subjected to any or all of the aforesaid penalties. * * *"
Battles and Cheney then appealed to the Court of Common Pleas of Union County which found that (1) the order of the Racing Commission is "not supported by any reliable, probative or substantial evidence and is not in accordance with law as required by Section
This case does not come within that class of cases where a license holder is estopped from challenging the validity of a statute under which his license is suspended or revoked because he has assented and subjected himself to the provisions of such statute. P P Taverns, Inc., v. State,
We come then to determine whether Rule 311 is unreasonable and unlawful in its application to the facts or circumstances involved in the adjudication hearing from which these appeals arose. The record of such hearing contains no evidence whatsoever that either the owner or trainer participated in or had any knowledge of the administration of Butazolidin to the horse in question, and it is undisputed in evidence that the horse was sound, not suffering from fever, had no history of leg ailments, lameness or soreness, and had no disorders or cause for medication. The record is silent as to how or by whom the Butazolidin was administered to the horse in question or, during the same period of time, to six other horses of other owners racing at the same track. It is apparent from the record and order of the Racing Commission that the suspensions were based solely on the facts that Battles and Cheney were among those persons named in Rule 311 and that the urinalysis showed the presence of a matter classified as a drug or a chemical.
It is further clear from an examination of Rules 310, 311 and 313 of the Ohio Rules of Racing in effect at the time of this incident that these rules do not make any distinction as to the effect which the drug or chemical may have upon a race horse and that its mere presence is sufficient to prove a literal violation of Rule 311. Although such violation does not constitute a criminal offense it may result in certain penalties, including, as here, the suspension of the owner's and trainer's licenses, and reference may be had to criminal procedure to determine by analogy whether the rule is unreasonable or unlawful in its application to the particular set of facts or circumstances herein involved.
There are certain classes of offenses which are malumprohibitum where scienter is not made an element of the offense and need not be proved. See Solomon v. Liquor Control Commission,
On the evidence herein relating to the reasonableness of Rule 311, as applied to the facts or circumstances herein, we cannot conclude, as a matter of law, other than did the Common Pleas Court, that such rule is unreasonable as so applied. Upon such conclusion it follows that it is also illegal as so applied. Being unreasonable and illegal as so applied, it was in violaton of Section
The finding of the Common Pleas Court that the suspension of these licenses "upon the facts of record would create an unreasonable hardship upon" the license holders "and is not in accordance with the law" is a redundancy and is merely repetitive of the finding that Rule 311 is unreasonable and unlawful in its application to the facts or circumstances resulting in the license suspensions.
To the extent that the findings of the Common Pleas Court are inconsistent with this opinion, the same are vacated, and such findings as are not inconsistent with this opinion and the judgment of the Common Pleas Court entered thereon are affirmed.
Judgment affirmed.
MIDDLETON and YOUNGER, JJ., concur. *59