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MICHAEL PETERSON AND CALVIN PETERSON v. COMMONWEALTH PENNSYLVANIA (08/18/82)

decided: August 18, 1982.

MICHAEL PETERSON AND CALVIN PETERSON, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE HORSE RACING COMMISSION, RESPONDENT



Appeal from the Order of the Pennsylvania State Horse Racing Commission in the case of In Re: Michael Peterson and Calvin Peterson, No. 81-054 and No. 81-055.

COUNSEL

Penny Blackwell, with her Daniel F. Wolfson, for petitioners.

Samuel F. Meisenhelder, for respondent.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Blatt. Judge Mencer did not participate in the decision in this case.

Author: Blatt

[ 68 Pa. Commw. Page 354]

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)

[ 68 Pa. Commw. Page 355]

    and suspended his licensure privileges and the privilege of access to all race track grounds within the Commonwealth until the end of 1982.

On April 17, 1981, track security personnel at Penn National conducted a search of a step van owned by Mike Loe's Saddlery*fn1 from which the petitioner, the manager of the saddlery, had been selling his employer's wares in the race track enclosure. Two weeks earlier, when the petitioner had driven the van into the enclosure as was his weekly custom, the director of security at the track had checked his records and determined that neither the saddlery nor the petitioner had a current vendor's license, as is required of all vendors who seek entry to the track enclosure, a restricted area of the race track. Section 9 of the Administrative Rules of the Commission, 58 Pa. Code ยง 165.79.*fn2 When the petitioner made his next weekly visit to the track on April 10, 1981, the security personnel kept the van under surveillance and "decided the next Friday [they] would hope to obtain authorization to search this vehicle to see what he was selling or what he did have in his possession." On April 17, 1981, the director of security obtained authorization from the State Steward to conduct a search. The

[ 68 Pa. Commw. Page 356]

    search produced a loaded .22 caliber pistol and vials of injectable vitamins and, upon further search, five vials of injectable medications, sodium iodide and sodium salicytate were found within the van in a box with curry combs. The director of security then ejected the petitioner*fn3 from the track for not having a valid 1981 vendor's license, for carrying a firearm onto the grounds and for possession of injectable substances. Following a hearing, the Commission affirmed the ejection and suspended the petitioner's licensure and track-access privileges through 1982. The petitioner then filed an application for rehearing and a request for a supersedeas with the Commission and concurrently filed a petition for review with this Court. The Commission denied the petitioner's requests whereupon he sought a stay from this Court, which was denied. He then petitioned the Pennsylvania Supreme Court for a stay, which petition was also denied. The appeal from the order of the Commission is presently before us.

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

[ 68 Pa. Commw. Page 357648]

(1974), we drew upon the standards and considerations governing warrantless regulatory searches set forth in United States v. Biswell, 406 U.S. 311 (1972), and recognized horse racing, like liquor and firearms, to be a highly regulated enterprise within this state and, as such, a field within which warrantless statutorily-authorized searches do not violate the reasonable expectations of privacy protected by the Fourth Amendment of the Federal Constitution, U.S. Const. amend. IV. In Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970), the United States Supreme Court, in addressing searches in the liquor industry, recognized that because the liquor industry had long been "subject to close inspection," Congress possessed "broad power to design such powers of inspection . . . as deems necessary to meet the evils at hand," Id. at 76-77, and that Court recently reiterated the principle that, in the realm of administrative searches, the "'reasonableness of a warrantless search . . . will depend upon the specific enforcement needs and privacy guarantees of each statute'" and that some statutes "'apply only to a single industry, where regulations might already be so pervasive that a Colonnade-Biswell exception to the warrant requirement could apply.'" Donovan v. Dewey, 452 U.S. 594, 601-2 (1981) (quoting Marshall v. ...


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