Catrone v. State Racing Com'n

• Decision Date: 18 April 1984
• Citation: 17 Mass.App.Ct. 484,459 N.E.2d 474
• Parties: Patrick CATRONE v. STATE RACING COMMISSION et al. 1
• Court: Appeals Court of Massachusetts

Page 474

459 N.E.2d 474

17 Mass.App.Ct. 484

Patrick CATRONE v. STATE RACING COMMISSION et al. ¹

Appeals Court of Massachusetts Suffolk.

Argued Jan. 5, 1984.

Decided Feb. 8, 1984.

Further Appellate Review Denied

April 18, 1984.

Alan R. Hoffman, Boston, for Ogden Suffolk Downs, Inc.

Jamie W. Katz, Asst. Atty. Gen., for State Racing Commission.

Herbert D. Lewis, Boston (Howard J. Alperin, Boston, with him), for plaintiff.

Before GRANT, CUTTER and SMITH, JJ.

CUTTER, Justice.

These are appeals by the State Racing Commission (the commission) and Ogden Suffolk Downs, Inc. (the racetrack), from a judgment of the Superior Court in a judicial review under G.L. c. 30A, § 14, reversing a decision of the commission which had denied relief to Catrone, a horse trainer licensed by the commission. The decision dealt with the racetrack's action in refusing Catrone's application (a) for stall space at the racetrack and (b) to enter his horses in races.

The controversy arose on December 18, 1981, when Robert O'Malley, vice-president and general manager of the racetrack, caused a letter to be delivered to Catrone informing him that the racetrack would not allow horses trained by him to be entered in races at Suffolk Downs or permit him to use stall space there. O'Malley, among other matters, asserted in the letter that Catrone's "presence as a trainer at the track would reduce the confidence of ... [the racetrack's] betting public in the honesty and integrity of racing." The board of stewards later refused to order the racing secretary of the track to accept the entry in a race of a horse owned by Catrone, and Catrone appealed to the commission.

After extended hearings, the commission submitted to counsel in its proceedings proposed findings of fact. Later, the commission made formal findings and rulings (mailed May 27, 1982). Among these were (no. 18) that the racetrack's "decision to exclude ... Catrone was a reasonable, discretionary, business judgment ... and was not motivated by items other than those relating to racing generally," and (no. 19) "was not arbitrary or without reason or justification," with the consequence that the racetrack had "not violated the rights of ... Catrone nor the rules of [t]horoughbred [r]acing." The findings of the commission and the evidence before the commission are discussed in later parts of this opinion.

1. The judgment must be reversed. The trial judge, in reviewing the commission's decision, purported to make findings as if the proceeding before him constituted a trial de novo. ² Under § 14 "[it] is ... the function of the [agency] and not a judge to make findings of fact." See Reed Natl. Corp. v. Director of the Div. of Employment Sec., 388 Mass. 336, 340, 446 N.E.2d 398 (1983). See also, as to the duty of the agency and not the court to weigh the credibility of witnesses and decide the facts, School Committee of Wellesley v. Labor Rel. Commn., 376 Mass. 112, 120, 127, 379 N.E.2d 1077 (1978). The trial judge's decision did not confine his review properly to what, on this record, appear to be the principal (if not the only) issues before him, viz., whether the commission's decision (a) contained errors of law, (b) was supported by substantial evidence, or (c) was arbitrary or capricious.

2. The commission (see G.L. c. 6, § 48) operates under G.L. c. 128A (as materially amended by St.1978, c. 494, hereinafter "the 1978 revision"). By c. 128A, § 9, the commission is authorized to promulgate regulations, and by § 9A (as amended by the 1978 revision, § 7) it may provide under § 9 for licensing various racing personnel including trainers and jockeys. See Fioravanti v. State Racing Commn., 6 Mass.App. 299, 304-305, 375 N.E.2d 722 (1978), and cases cited. Regulations of the commission affecting horse racing appear in the Code of Massachusetts Regulations (CMR) at 205 CMR § 4.00 et seq. Pertinent provisions of these regulations are mentioned in the appendix to this opinion.

The 1978 revision of G.L. c. 128A effected various changes in the regulation of racing, and stated in § 1 a declaration of statutory policy. ³ These changes, see e.g., new §§ 9A and 10A, ⁴ and the regulations (now subject, under new § 9B, to special legislative scrutiny), confirm a legislative intention that racetracks be conducted so as to encourage public confidence.

Chapter 128A as amended does not indicate any legislative intention so to regulate Massachusetts racetracks as to make them essentially public utilities in whose races the horses of every licensed owner and trainer may participate. On the contrary, the statutes and the regulations, viewed in the aggregate, convince us that a licensed racetrack, except as otherwise clearly provided by statute or valid regulation, remains a private proprietary corporation, at liberty to deal (or reasonably to refrain from dealing) with licensed owners, trainers, and jockeys at least in accordance with a sound business judgment. We perceive no legislative purpose to modify the powers which a racetrack would have possessed apart from present statutory regulation so as to deprive it of discretionary business judgment in determining which licensed horse owners and horse trainers will be allowed to use its facilities. Indeed, the commission by § 4.14(10) (1978), allowing the refusal of race entries without explanation (see the appendix to this opinion) as one of its regulations, in substance has stated formally what is essentially the rule in force in several jurisdictions. ⁵ In such jurisdictions a proprietary racetrack, even though intensively regulated, need not permit participation in racing by any person, simply because that person has a license from the regulatory commission, and those jurisdictions certainly permit exclusion from such participation on reasonable business grounds. See Martin v. Monmouth Park Jockey Club, 145 F.Supp. 439, 440-441 (D.N.J.1956), aff'd per curiam, 242 F.2d 344 (3d Cir.1957); Evans v. Arkansas Racing Commn., 270 Ark. 788, 797-803, 606 S.W.2d 578 (1980), cert. denied, 451 U.S. 910, 101 S.Ct. 1980, 68 L.Ed.2d 299 (1981). See cases involving patrons at race tracks, such as Greenfeld v. Maryland Jockey Club, 190 Md. 96, 100-106, 57 A.2d 335 (1948); Tamelleo v. New Hampshire Jockey Club, Inc., 102 N.H. 547, 548-550, 163 A.2d 10 (1960); and Garifine v. Monmouth Park Jockey Club, 29 N.J. 47, 50-57, 148 A.2d 1 (1959). See also Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 739-740 (6th Cir.), cert. denied, 449 U.S. 996, 101 S.Ct. 535, 66 L.Ed.2d 294 (1980). Compare Marzocca v. Ferrone, 186 N.J.Super. 483, 487, 489-496, 453 A.2d 228 (1982), which may attempt to limit the Garifine case.

Cox v. National Jockey Club, 25 Ill.App.3d 160, 164-167, 323 N.E.2d 104 (1974), holding that a licensee racetrack cannot "arbitrarily and without reason or justification" bar a licensed jockey from a race meeting, and Jacobson v. New York Racing Ass'n, Inc., 33 N.Y.2d 144, 148-150, 350 N.Y.S.2d 639, 305 N.E.2d 765 (1973), may take a somewhat narrower view (than the cases just cited) of a racetrack's freedom to control participation in racing. The Jacobson case, nevertheless, points out (at 150, 350 N.Y.S.2d 639, 305 N.E.2d 765), that the licensee complaining of a racetrack's action excluding the licensee has a "heavy burden to prove that denial," there of stall space, "was not a reasonable discretionary business judgment but was actuated by motives other than those relating to the best interests of racing generally." Compare the diverse views expressed in Saumell v. New York Racing Ass'n, Inc., 58 N.Y.2d 231, 238-252, 460 N.Y.S.2d 763, 447 N.E.2d 706 (1983). The discussion in Greenberg v. Hollywood Turf Club, 7 Cal.App.3d 968, 976-978, 86 Cal.Rptr. 885 (1970), may rest primarily on earlier California decisions.

The Massachusetts decisions as yet have not determined the extent to which a racetrack has power to exclude licensed owners and trainers. Obviously, c. 128A and the racing regulations prevent licensed racetracks from allowing unlicensed persons to participate in racing. On the present facts, we need not draw with precision the boundaries of permissible exclusion of licensed persons. Under the cases already cited, a licensee racetrack at least may exclude licensed persons from participation in racing activity in the exercise of a reasonable business judgment.

3. The comprehensive provisions of G.L. c. 128A and the regulations under it, see Colella v. State Racing Commn., 360 Mass. 152, 153, 155-156, 274 N.E.2d 331 (1971); Nolan, Criminal Law, § 495 (1976), show that the commission had jurisdiction to consider Catrone's appeal to it from the stewards' refusal to order the racetrack to allow his participation in racing. The commission has been given sufficiently broad powers (including those of granting and suspending licenses, see e.g., G.L. c. 128A, §§ 2, 3, 9A, 11) to permit it to review the conduct of its licensees in accordance with reasonable procedures set out in its regulations. Although the statutory grant of jurisdiction could have been made more explicit, we reject the racetrack's contention that the commission had no jurisdiction of this situation. Compare Casa Loma, Inc. v. Alcoholic Beverages Control Commn., 377 Mass. 231, 233-235, 385 N.E.2d 976 (1979), where every indication from the statutes was that the particular controversy had been left to local control rather than to the commission. In the present case, Catrone properly was afforded by the commission a full hearing with his counsel participating.

4. The commission's decision (already quoted) that the racetrack's exclusion of Catrone "was a reasonable discretionary business judgment" and "not arbitrary" had support in the evidence before it. The commission in effect ruled that the criteria used by it to license Catrone need not have been and were "not necessarily the same as" those used by the racetrack "in not accepting entries of horses trained by him." The...