Battles v. Ohio State Racing Commission

• Decision Date: 04 October 1967
• Citation: Battles v. Ohio State Racing Commission, 230 N.E.2d 662, 12 Ohio App.2d 52 (Ohio App. 1967)
• Parties: , 41 O.O.2d 100 BATTLES, Appellee, v. OHIO STATE RACING COMMISSION, Appellant. CHENEY, Appellee, v. OHIO STATE RACING COMMISSION, Appellant.
• Court: Ohio Court of Appeals

Page 52

12 Ohio App.2d 52

230 N.E.2d 662, 41 O.O.2d 100

BATTLES, Appellee, v. OHIO STATE RACING COMMISSION, Appellant.

CHENEY, Appellee, v. OHIO STATE RACING COMMISSION, Appellant.

Court of Appeals of Ohio, Third District, Union County.

Oct. 4, 1967.

Syllabus by the Court

1. In an appeal under the provisions of Section 119.12, Revised Code, a Common Pleas Court does not have jurisdiction to review the reasonableness and lawfulness, in its general application, of a rule adopted by an administrative agency but derives jurisdiction under the provisions of the last paragraph of Section 119.11, Revised Code, to review the reasonableness or legality of the rule in its application to the particular set of facts or circumstances involved in the adjudication pertaining to licensing resulting in the order from which the appeal under Section 119.12 has been perfected.

2. It is not in the public weal to impose, under the provisions of Rule 311 of the Ohio Rules of Racing, upon a race horse owner or trainer the liability of license suspension because of the discovered presence in a urine sample from the horse of a drug or chemical not proved to have a direct effect on that horse's racing ability, unless scinter is proved.

3. If the unreasonableness or illegality of an administrative rule in its application to a particular set of facts or circumstances is determined, then such rule has no force or validity, as so applied, by virtue of the last paragraph of Section 119.11, Revised Code, and, upon such determination, no issue of its constitutionality may be determined in an appeal under the provisions of Section 119.12, Revised Code.

4. The application of Rule 311 of the Ohio Rules of Racing to cause the suspension of the respective licenses of the owner and trainer of a race horse is unreasonable and illegal when such suspension is solely by reason of the discovered presence in a urine specimen from the horse of Butazolidin, a drug used to combat arthritic disorders and with pain relieving and fever reducing properties, where the record contains no evidence that either the owner or trainer participated in or had any knowledge of the administration of the drug, where it is undisputed 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, where the record is silent as to how or by whom the drug was administered to the horse in question or, during the same period of time, to six horses of other owners racing at the same track, and where there is no evidence in the record that the administration of that drug would result in either an increase or decrease of the speed of the horse in question.

William B. Saxbe, Atty. Gen., and Larry G. Brake, Columbus, for appellant.

Lloyd G. Kerns, Richwood, and Joe F. Asher, Columbus, for appellee.

GUERNSEY, Presiding Judge.

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 be 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 119.12, Revised Code'; (2) Rule 311 is 'unconstitutional, arbitrary and unreasonable and is not necessary for the protection of the betting public'; (3) 'The application of Rule 311 * * * to the facts of the case at bar so as to suspend plaintiff-appellant's license is arbitrary, unreasonable and contrary to law as required by Section 119.11, Revised Code of Ohio and constitutes an unconstitutional exercise of power by defendant-appellee contrary to Section 1, Article II of Ohio Constitution'; and (4) 'The suspension of plaintiff-appellant's licenses by the defendant- appellee upon the facts of record would create an unusual and unreasonable hardship upon plaintiff-appellant and is not in accordance with law.' On these findings the Common Pleas Court reversed the orders of the Racing Commission. It is from this judgment that the Racing Commission now appeals to this court and claims error of the Common Pleas Court in each of these findings.

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, 11 Ohio App.2d 11, 227 N.E.2d 638; State ex rel. Zugravu v. O'Brien, 130 Ohio St. 23, 196 N.E. 664; and Solomon v. Liquor Control Commission, 4 Ohio St.2d 31, 212 N.E.2d 595. Those cases involve statutory enactments by the General Assembly, and this case involves a rule adopted by an administrative agency. In an appeal under the provisions of Section 119.11, Revised Code, from an order adopting, amending, or rescinding a rule of an administrative agency, a Common Pleas Court may review adherence to procedural requirements in such adoption, amendment, or rescission, and may review the reasonableness and lawfulness of the rule in its general application. Section 119.11, Revised Code, further provides in its last paragraph that 'no person affected thereby shall be precluded from attacking at any time the reasonableness or legality of any rule in its application to a particular set of facts or circumstances.' (Emphasis added.) In appeals to the Common Pleas Court under Section 119.12, Revised Code, such as...