68 Pa. Commw. 353 | Pa. Commw. Ct. | 1982
Opinion by
The petitioner, Michael J. Peterson, appeals from an order of the Pennsylvania State Horse Racing Commission (Commission) which sustained his ejection from Penn National Race Track (Penn National)
On April 17,1981, track security personnel at Penn National conducted a search of a step van owned by Mike Loe’s Saddlery
Our scope of review in these cases is limited to determining whether or not constitutional rights were violated, the adjudication was in accord with law, procedural rules were violated or whether or not necessary findings of fact were supported by substantial evidence. Daly v. Pennsylvania State Horse Racing Commission, 38 Pa. Commonwealth Ct. 77, 391 A.2d 1134 (1978).
In Lanchester v. Pennsylvania State Horse Racing Commission, 16 Pa. Commonwealth Ct. 85, 325 A.2d
The petitioner here, however, points to Section 15.09 of the Rules of Racing, and contends that inasmuch as he had not procured a 1981 vendor’s license,
[E]very person who is hereafter granted a license by the Commission, by accepting his license, does consent to such search, and to the seizure of . . . any drugs, stimulants or narcot*360 ics, apparently intended to be or which conld be, used in connection therewith ... of such nature as could affect the speed or racing condition of a horse.
In Lanchester we said that by submitting his signed application for a license, the trainer had given written consent to a search. In so stating, we recognized, however, that this was merely “[a]n additional ground,” Id. at 94, 325 A.2d at 653 (emphasis added), upon which to sustain the validity of the search.
Where an individual entering a traditionally regulated licensed field such as horse racing consents [by submitting his license application and accepting his license] to a warrantless search of his person or premises directly related to or involved in that endeavor, his consent is held to constitute a waiver of his Fourth Amendment protections within the limits of valid regulation.
Id. at 95, 325 A.2d at 653. However, in a closely regulated industry where “[l]arge interests are at stake, and inspection is a crucial part of the regulatory scheme,” Biswell, 406 U.S. at 315, the validity of a search does not rest upon consent. “In the context of a regulatory inspection system of business premises that is carefully limited in time, place, and scope the legality of the search depends not on consent but on the authority of a valid statute.” Id. In Pennsylvania, pervasive regulation of the horse racing industry by the State has been accomplished by statute and by rules promulgated thereunder by the Commission, a statutorily created arm of the state.
The element which distinguishes these enterprises from ordinary businesses is a long tradition of close government supervision, of which any person who chooses to enter such a business must already be aware. “. . . The businessman*361 in a regulated industry in effect consents to the - restrictions placed upon him.”
Marshall v. Barlow’s, 436 U.S. at 313 (quoting from Almeida-Sanchez v. United States, 413 U.S. at 266, 271 (1973)). The petitioner here had obtained vendor’s licenses in 1979 and 1980 and was certainly no stranger to the fact that horse racing was a “closely regulated” industry “long subject to close supervision and inspection,” Colonnade, 397 U.S. at 77, and his participation in it, brought him within the restrictions attendant upon it, including a relinquishment of his expectation of privacy while engaged therein. “Certain industries have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise.” Marshall, 436 U.S. at 313 (citation omitted). A reasonable expectation of privacy exists when an individual has exhibited an actual expectation of privacy and when the individual’s subjective expectation of privacy is one that society is prepared to recognize as “reasonable”. Katz v. United States, 389 U.S. at 347 (1967). Although the petitioner here had failed to obtain a 1981 license, he relinquished his expectation of privacy once he entered into a restricted area of the race track and vended his wares thereon. By performing within the industry as one licensed by the Commission overseeing the industry, he gave his implied consent to a warrantless search of his person and premises pursuant to Section 15.09 of the Buies of Bacing, 58 Pa. Code §163.312, and this consent operated as “a waiver of his Fourth Amendment protections within the limits of valid regulation.” Lanchester, 16 Pa. Commonwealth Ct. at 95, 325 A.2d at 653.
Section 15.09 of the Buies of Bacing, grants a right to the “Stewards or the Commission ... or their designees, ... to enter into, or upon . . . other places within the grounds and to examine the same, and to inspect
The petitioner contends that certain of the Commission’s findings were not supported by substantial evidence. It is well-settled that substantial evidence is relevant evidence such as a reasonable mind might accept to support a conclusion. Pennsylvania State Horse Racing Commission v. Di Santo, 29 Pa. Commonwealth Ct. 574, 372 A.2d 487 (1977). The petitioner objects to several of the findings of fact and asserts that the Commission’s findings that he was in possession of injectable substances is not supported by evidence in the record. The questioned findings merely reported the fact of the search and identified the items found as a result thereof; in the subsequent discus
The co-owner of Mike Loe’s saddlery, James L. Lloyd, admitted to having placed the inject-able medications in the box of curry combs for the reason that he knew that they would have to be concealed in order to allow him to drive the step van vehicle on race track grounds.
Examination of the record fails to reveal evidence, of any knowing, intentional exercise of control over the
The petitioner finally objects that the penalty imposed by the Commission was excessive and unreasonable. Section 12.1(a) of the Act, 15 P.S. §2662.1 (a), provides in pertinent part that security personnel are “authorized and empowered to . . . eject from the race meeting grounds or enclosure any persons suspected of violating any rule or regulation promulgated by the . . . Commission.” The petitioner’s testimony clearly established that he carried a loaded, unregistered firearm in a vehicle, in violation of Section 6106(a) of the Pennsylvania Uniform Firearms Act, 18 Pa. C. S. §6106(a),
Although the evidence presented is sufficient to sustain the Commission’s affirmance of his ejection, it is not sufficient to support a suspension of his licensure and entry privileges for a period of almost two years. Evidence was given by both the petitioner and the owner that up until the time of discovery of the vials of injectables by security personnel, the petitioner had been totally unaware that the vials had been secreted and were present in a box in the van, and the Commission did not find that the petitioner had been in possession of the vials. Therefore, the Commission’s ultimate statement in its discussion that the petitioner had had possession of ithe injectable substances found in his employer’s van was not supported by substantial evidence in the record or by the findings of fact. Furthermore, at the hearing, counsel for the Commission sought a penalty “only as to the failure to hold a license and the possession of the firearm.”
"We will, therefore, affirm the order of the Commission as to its affirmance of the ejection and its imposition of additional penalties, hut will modify those penalties to encompass only the period of time already elapsed as of the date of filing of this order and opinion.
Order
And Now, this 18th day of August, 1982, the order of the Pennsylvania State Horse Racing Commission is affirmed insofar as it upholds the validity of the April 17, 1981 ejection of Michael J. Peterson from the Penn National Race Track but insofar as it suspends his privilege of licensure in any capacity by the Commission and denies him the privilege of access to any and all grounds of any race track within the Commonwealth of Pennsylvania for the remainder of 1981 and all of calendar year 1982, it is modified and reduced .to that period of time which has already elapsed as of the date of filing of this order.
The saddlery, located in Charlestown, West Virginia, is engaged in vending their products, which include televisions, appliances, clothing, saddles, liniments and other related items, at various race tracks in West Virginia, Maryland, Delaware, New Jersey and Pennsylvania.
58 Pa. Code §165.79 provides in pertinent part:
The licensee [i.e., a corporation organized pursuant to the Horse Racing Act which conducts any thoroughbred horse race meet with pari-mutuel wagering] shall supervise the practice and methods of so-called merchandise vendors who may have entry to the track enclosure to solicit among the employees and other licensees engaged at the track. . . . Each so-called merchandise vendor shall be licensed by the Commission.
On the day in question, the petitioner was accompanied by his brother who was also ejected and barred from all Pennsylvania race tracks through .the end of 1982. His brother was also an appellant before the Commission and its order was, therefore, applicable to him as well. However, inasmuch as his brother’s employment and primary livelihood are not related to the field of horse racing, his brother has withdrawn from this appeal.
Tlie Thoroughbred Horse Race Meeting Corporation Act (Act), Act of December 11, 1967, P.D. 707, as amended, 15 P.S. §§2651-2675, repealed by the Act of December 17, 1981, P.L. 435. A similar act, entitled the Race Horse Industry Reform Act, is now found at 4 P.S. §§325.101-325.404.
Section 15.09 of the Rules of Racing, 58 Pa. Code §163.312, provides:
Possession of illegal drug devices.
The Stewards or the Commission, or any of them, or their designees, shall have the right to enter into, or upon the buildings, stables, rooms, or other places within the grounds of such an association, and to examine the same, and to inspect and examine the personal property and effects of any person, within such places; and every person who is hereafter granted a license by the Commission, by accepting his license, does consent to such search, and to the seizures of any such hypodermic syringes, hypodermic needles, or other devices, and any drugs, stimulants, or narcotics, apparently intended to be, or which could be, used in connection therewith, or any appliances — electrical, mechanical, or otherwise — other than the ordinary equipment, of such nature as could affect the speed or racing condition of a horse. (Emphasis added.)
and Section 11 of the Administrative Rules, 58 Pa, Code §165.81 provides:
Inspection of premises.
The Commission shall have the right to authorize a person or persons to enter in or upon the stables, rooms, or other places within the track enclosure or places where horses are kept, for the purpose of and to inspect and examine the personal effects, or property within such places of every employe, trainer, jockey, stable foreman, groom, authorized agent, veterinarian, or other person licensed by the Commission, or required to he so licensed. (Emphasis added.)
The petitioner had had valid vendor’s licenses for the years 1979 and 1980.
Terry v. Ohio held that a police officer who has reason to believe that the person he is dealing with may be armed is entitled to conduct a carefully limited search of outer clothing for weapons which might be used to assault him. Section 2662.1(a) of the Act, 15 P.S. §2662.1 (a) states that track security personnel “shall possess the powers and duties of a peace officer with respect to the enforcement of the criminal laws of the Commonwealth within the race meeting grounds or enclosure.”
18 Pa. O. S. §6106(a) provides in pertinent part that:
No person shall carry a firearm in any vehicle . . . except in his place of abode or fixed place of business, without a license therefor as provided in this subohapter.
The petitioner’s situation did not fall within any of the enumerated exceptions to subsection (a) which are set forth in subsection (b).
Section 1.16 of the Rules of Racing provides in pertinent part that:
No licensee . . . shall possess any firearm within the enclosure unless he shall have therefore obtained a valid and subsisting permit for the same from the appropriate*365 police authority . . . and unless the same shall have been registered in writing with the Commission security office at the track and the Director of Security of the Association.
Section 15.02(a) (3) of the Rules of Racing provides in pertinent part:
No person other than a veterinarian shall have any foreign substance, within the area of the race track complex, which can be administered internally to a horse by any route, except for an existing condition and as prescribed by a veterinarian.
Reproduced Record, p. 83.