Dеan Eckley, Appellant-Appellant, v. Ohio State Racing Commission, Appellee-Appellee.
No. 22AP-548
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
July 13, 2023
2023-Ohio-2401
BEATTY BLUNT, P.J.
(C.P.C. No. 22CV-2003) (REGULAR CALENDAR)
Rendered on July 13, 2023
On brief: Graff & McGovern, L.P.A., and Brandon M. Smith, for appellant. Argued: Brandon M. Smith.
On brief: Dave Yost, Attorney General, and Todd K. DeBoe, for appellee. Argued: Todd K. DeBoe.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, P.J.
{¶ 1} Appellant-appellant, Dean Eckley, appeals from a judgment of the Franklin County Court of Common Pleas affirming an order of appellee-appellee, the Ohio State Racing Commission (the “Commission“), denying appellant‘s application for a standardbred trainer license. (Aug. 11, 2022 Decision & Entry.) For the reasons that follow, we affirm.
I. Facts and Procedural History
{¶ 2} On January 7, 2021, appellant submitted an Ohio State Racing Commission License Application for 2021 as a standardbred trainer. The Commission investigated the matter and on May 14, 2021, the Commission issued a notice of opportunity for hearing wherein appellant was notified that the Commission intended to deny appellant‘s application.
{¶ 3} Appellant requested a hearing, and on September 24, 2021 a commission hearing officer conducted a hearing. Appellant was represented by counsel and testified on his own behalf. The Commission‘s Deputy Director and Chief Legal Counsel testified on behalf of the Commission. The Commission offered seven exhibits. Appellant objected to the admission of Exhibit F5, a copy of a newspaper article regarding appellant‘s 2010 arrest in New York for abusing a racehorse, on the basis of improper authentication. Appellant also objected to Exhibit G, which lists various rulings by the Pennsylvania State Harness Racing Commission (“Pennsylvania“) finding him in violation of Pennsylvania racing rules and imposing fines and suspensions. Apрellant‘s objection to Exhibit G was premised on his assertion that the Pennsylvania rulings are irrelevant to his application because they are older than the five-year “look back” period pertinent to the Commission‘s consideration of his application. Over appellant‘s objections, the hearing officer admitted the exhibits.
{¶ 4} On October 21, 2021, the hearing officer issued her Findings of Fact and Conclusions of Law/Report and Recommendation (“Report and Recommendаtion“). The Report and Recommendation stated, in pertinent part
Testimony and the Exhibits have shown that Respondent has had his 2017 Pennsylvania license suspended from May 30, 2018 until January 1, 2021. The period of suspension by Pennsylvania is within the Application five (5) year look back. Respondent is in violation of
Ohio Adm. Code 3769-12-26(A)(2) .Testimony and the Exhibits have shown that Respondent failed to report the charge of animal cruelty for which he was arrested on his Application. He also did not explain the severity of this pеnalty for the two offenses listed on the Application. Although the Pennsylvania suspension had expired and Pennsylvania had issued Respondent a conditional license, none of that part of Respondent‘s history appears in the Application. Respondent is in violation of
Ohio Adm. Code 3769-12-26(A)(7) .* * *
The most recent actions of the Respondent as detailed in the testimony and Exhibits admitted into evidence show that the Respondent has engaged in conduct against the best interest of horse racing in violation of
Ohio Adm. Code 3769-2-26(A)(10) .
{¶ 5} Appellant timely filed objections to the Report and Recommendation. On February 23, 2022 the Commission considered the Report and Recommendation and appellant‘s objections at its regular meeting where appellant also appeared. The Commission adopted the Report and Recommendation by unanimous vote at its meeting. On March 14, 2022, the Commission issued an Adjudication Order adopting the Report and Recommendation and denying appellant‘s application for a standardbred owner and trainer license. (Mar. 14, 2022 Adjudication Order.)
{¶ 6} On March 29, 2022, appellant timely appealed the Commission‘s order to the Franklin County Court of Common Pleas. On August 11, 2022, the trial court issued its decision and entry affirming the order of the Commission, finding that the order was supported by reliable, probative, and substantial evidence and was in accordance with the law.
{¶ 7} This timely appeal followed.
II. Assignments of Error
{¶ 8} Appellant asserts the following assignments of error for our review:
[I.] The lower court abused its discretion when it determined that the Commission did not violate Mr. Eckley‘s Due Process rights and that the Order was in accordance with law.
[II.] The lower court abused its discretion when it determined that the Commission proved Mr. Eckley failed to make required disclosures and the Order was based on reliable, рrobative, and substantial evidence.
III. Law and Analysis
A. Standard of Review
{¶ 9} In an administrative appeal brought pursuant to
(1) “Reliable” evidence is dependable; that is, it can be confidently trusted. In order to be reliable, there must be a reasonable probability that the evidence is true. (2) “Probative” evidence is evidence that tends to prove the issue in question; it must be relevant in determining the issue. (3) “Substantial” evidence is evidence with some weight; it must have importance and value.
Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571 (1992).
{¶ 10} The common pleas court‘s ” ‘review of the administrative record is neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which the court “must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence, and the weight thereof.” ’ ” Edmands v. State Med. Bd., 10th Dist. No. 16AP-726, 2017-Ohio-8215, ¶ 10, quoting Lies v. Ohio Veterinary Med. Bd., 2 Ohio App.3d 204, 207 (1st Dist.1981), quoting Andrews v. Bd. of Liquor Control, 164 Ohio St. 275, 280 (1955). The trial court “must give due deference to the administrative resolution of evidentiary conflicts,” although “the findings of the agency are by no means conclusive.” Conrad at 111. The common pleas court conducts a de novo review of questions of law, exercising its independent judgment in determining whether the administrative order is “in accordance with law.” Ohio Historical Soc. v. State Emp. Relations Bd., 66 Ohio St.3d 466, 471 (1993), citing
{¶ 11} By contrast, an appellate court‘s review of an administrative decision is more limited than that of the common pleas court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). The appellate court is to determine only whether the common pleas court abused its discretion. Id.; Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 261 (1988). A trial court abuses its discretion when it exercises its judgment in an unwarranted way regarding a matter over which it has discretionary authority. Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, ¶ 35. The term abuse of discretion, ” ‘commonly employed to justify an interference by a higher court with the exercise of discretionary power by a lower сourt, implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency.’ ” Id., quoting Black‘s Law Dictionary 11 (2d Ed.1910). Absent an abuse of discretion, this court may not substitute its judgment for that of the administrative agency or the trial court. Pons at 621. However, on the question of whether the agency‘s order was in accordance with the law,
B. Discussion
{¶ 12} The Supreme Court of Ohio has observed “that horse racing is one of those fields subject to extraordinarily broad regulatory powers.” O‘Daniel v. Ohio State Racing Comm., 37 Ohio St.2d 87, 93 (1974). ” ‘The very nature of horse raсing itself presents numerous opportunities for abuse. Specific and strict rules are necessary in order to preserve the integrity of the sport. Persons who wish to receive licenses to participate in the sport must conform to certain standards, rules and regulations, which are designed to maintain the integrity of horse racing.’ ” Burneson v. Ohio State Racing Comm., 10th Dist. No. 03AP-925, 2004-Ohio-3313, ¶ 38, quoting Haehn v. Ohio State Racing Comm., 83 Ohio App.3d 208, 213 (10th Dist.1992). ” ‘Horse racing and legalized wagering thereon, are subjects with respect to which police regulations for the protection of the public safety, morals, and general welfare, are not only proper but are an absolute necessity.’ ” Thomas v. Ohio State Racing Comm., 10th Dist. No. 08AP-804, 2009-Ohio-1559, ¶ 16, quoting Standard “Tote,” Inc. v. Ohio State Racing Comm., 68 Ohio Law Abs. 19, 121 N.E.2d 463, 469 (1954).
{¶ 13} The enabling legislation governing horse racing is promulgated in
{¶ 14} Under the authority granted by
The commission may refuse to grant * * * any license [to] a person to whom any of the following apply: * * *
(2) The applicant or licensee has had a license of the legally constituted racing authority of any state, province or nation, denied, suspended or revoked fоr cause within the preceding five years; * * *
(4) The applicant or licensee has violated or attempted to violate any provision of
Chapter 3769. of the Revised Code or the Ohio rules of racing; * * *(7) The applicant or licensee has made any material misrepresentation in his or her application for license; * * *
(10) The applicant or licensee has engaged in conduct which is against the best interest of horse racing.
(Emphasis added.) The power of the Commission to approve or reject a licеnse application is discretionary, not mandatory. Raceway Park, Inc. v. Ohio State Racing Comm., 10th Dist. No. 02AP-352, 2002-Ohio-5615, ¶ 12.
{¶ 15} This is an administrative appeal, so the issue before this court distills to whether the common pleas court abused its discretion in affirming the Commission‘s decision as “supported by reliable, probative, and substantial evidence,” and whether the Board‘s determination was in accordance with law. As explained below, the trial court did not abuse its discretion in affirming the Commission‘s decision, and the Board‘s determination was in accordance with law.
{¶ 16} In his first assignment of error, appellant contends that the trial court abused its discretion when it determined that the Commission did not violate his due process rights and that the order was in accordance with law. Appellant contends the Commission violated his due process rights in two ways: one, by introducing Exhibits G and G-1 through G-5 over objection at the September 24, 2022 hearing before the hearing examiner; and two, by raising and considering information regarding the “Fishman case” at the February 23, 2022 meeting when сonsidering appellant‘s objections to the October 21, 2021 Report and Recommendation. Neither contention has merit.
{¶ 17} Exhibits G and G-1 through G-5 consist of Pennsylvania State Harness Racing Commission Rulings pertaining to various suspensions and fines, some of which date back
{¶ 18} Similarly, the information regarding the “Fishman case” was only briefly raised by one of the Commissioners at the February 23, 2022 meeting when considering Aрpellant‘s objections, and there is no mention of the “Fishman case” in the Report and Recommendation. When the Commissioner’ unanimously voted to adopt the Report and Recommendation they did so without any sort of amendment to include information regarding the “Fishman case,” and thus the Commission‘s order is in no way based on that case. Furthermore, as with the Exhibits G and G-1 through G-5 discussed above, even if the Fishman case information had contributed in some way to the Commission‘s decision to adoрt the Report and Recommendation denying appellant‘s application, appellant cannot show that this was prejudicial because other independent bases for denial also existed. The Commission‘s brief discussion and questioning on the “Fishman case” at the hearing on the objections did not violate appellant‘s rights to due process.
{¶ 19} Therefore, based on the foregoing, we find the trial court did not abuse its discretion in finding that the Commission did not violate appellant‘s due process rights. Accordingly, appellant‘s first assignment of error is overruled.
{¶ 20} In his second assignment of error, appellant asserts that the trial court abused its discretion in determining that appellant failed to disclose all required information on his application and that the Commission‘s order was supported by reliable, probative, and substantial evidence. This assignment of error is without merit.
{¶ 21} The evidence submitted in the form of testimony of both the Commission‘s Deputy Director and Legаl Counsel and that of appellant amply supports the basis upon which the Commission denied appellant‘s application. Specifically, the evidence showed four distinct violations of the Ohio Administrative Code pertaining to horse racing licenses as follows.
{¶ 22} One, appellant‘s 2017 Pennsylvania license was suspended from May 30, 2018 until January 1, 2021. This period of suspension was clearly within the five-year “look back” period in violation of
{¶ 23} Two, although it is technically accurate that the foregoing suspension followed a voluntary surrender of appellant‘s license, the evidence shows that the surrender was negotiated to resolve an immediately receding suspension imposed for failure to comply with a subpoena issued by the Pennsylvania State Horse Racing Commission. Although appellant testified at the hearing that he did not believe he needed to disclose this suspension because it was a voluntary surrender (versus a technical suspension), reliable, probative, and substantial evidence supports the Commission‘s position that failing to disclose this information on his application was a material misrepresentation in violation of
{¶ 24} Additionally, the evidence shows that appellant failed to disclose that upon reinstatement of his license in Fеbruary, 2021, the Pennsylvania State Horse Racing Commission issued a conditional license based upon an agreement between appellant and the Pennsylvania authorities. Again, reliable, probative, and substantial evidence supports the Commission‘s position that failure to disclose the fact of his conditional license on his
{¶ 25} Three, although appellant did list on his application two suspensions of his Pennsylvania license occurring in March, 2016 and August, 2016 based on illicit drugs found in horses appellant was training, he failed to provide details of the severity of the suspensions, such as the fines and aggravating circumstances, despite that the application specifically required that particulars be provided for any license suspensiоns. Indeed, for one of the two drug violation suspensions, appellant was fined $3500.00, and his license was placed in conditional status for five years. The record shows that reliable, probative, and substantial evidence fully supports the Commission‘s finding that failure to disclose the details of these two suspensions constituted a material misrepresentation in violation of
{¶ 26} Four, appellant admits that he failed to disclose a 2010 arrest in the state of New York on a charge of cruelty to animals, despite that the application specifically requires disclosure of information regarding arrests or convictions of any criminal charges, with the exception of traffic offenses. Although appellant testified at the hearing that he did not think he had to disclose this information because the charges were later dismissed, the application clearly requests information for all arrests, with no exceptions for arrests other than traffic violations. Particularly because the charge was for animal cruelty to a race horse, reliable, probative, and substantial evidence supports the Commission‘s determination that failure to disclose this arrest arose to a material misrepresentation in violation of
{¶ 27} Finally, in addition to the failure to disclose the various information discussed above, the record shows that the Commission‘s determination that the “most recent actions” of appellant show that he has engaged in conduct against the best interest of horse racing in violation of
{¶ 28} In sum, the trial court did not abuse its discretion in determining that appellant failed to disclose all required information on his application and that the Commission‘s order was supported by reliable, probative, and substantial evidence. The Commission could have properly denied appellant‘s application on any one of the multiple basis discussed above. Therefore, the trial court did not abuse its discretion in affirming the March 14, 2022 adjudication order of the Commission denying appellant‘s application for a standardbred owner and trainer license and finding that the Commission‘s determination was in accordance with thе law. Accordingly, appellant‘s second assignment of error is overruled.
IV. Disposition
{¶ 29} For the foregoing reasons, we overrule both of appellant‘s assignments of error, and we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
MENTEL, J., concurs.
LUPER SCHUSTER, J., concurring seperately
LUPER SCHUSTER, J., concurring separately.
{¶ 30} I agree with the majority that the trial court did not abuse its discretion in determining that reliable, probative, and substantial evidence supports the Commission‘s decision, and that the decision is in accordance with law. However, because I would reach that conclusion for reasons different than those articulated by the majority, I concur separately.
{¶ 31} Under his first assignment of error, appellant argues the trial court erred when it concluded the Commission did not violate his due process rights by raising throughout the proceedings additional matters not contained in the notice of the charged conduct. Because appellant asks this court to determine whether his due process rights were violated, a question of law, I would review this question undеr the de novo standard
{¶ 32} Pursuant to the
{¶ 33} Here, appellant does not argue he did nоt receive notice. Instead, he asserts the notice provided to him was insufficient because the Commission did not disclose its intent to rely on certain exhibits related to his disciplinary history beyond the five-year period set forth in
{¶ 34} In his second assignment of error, appellant argues the trial court abused its discretion in affirming the Commission‘s order. The majority sets forth four distinct violations of the Ohio Administrative Code. I agree with the majority that the trial court did not abuse its discretion in finding reliable, probative, and substantial evidence to support the first, second, and fourth violations related to appellant‘s failure to disclose the 2017 Pennsylvania license suspension, the surrender versus suspension argument, and his failure to disclose his 2010 arrest for animal cruelty. However, as to the third violation, relating to the amount of details appellant disclosed about two suspensions in 2016 due to illicit drugs found in his horses, I agree with appellant that the answer he provided on his application related to these two suspensions did not constitute a material misrepresentation under
{¶ 35} Though the Commission faulted appellant for not providing even more details related to those suspensions, I agree with appellant that the application did not expressly require disclosure of the amount of his fines and additional penalties related to those suspensions. Accordingly, I would find the trial court abused its discretion in concluding reliable, probative, and substantial evidence supports a finding that appellant made a material misrepresentation on his license application related to the 2016 suspensions. However, because I agree with the majority that the other violations, on thеir own, provided reliable, probative, and substantial evidence supporting the Commission‘s denial of appellant‘s application, I would still overrule appellant‘s assignment of error and affirm the judgment of the trial court.
{¶ 36} For these reasons, I concur separately.
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