Appeal from the order of Commonwealth Court dated October 29, 1985, at 3654 C.D. 1984, Reversing the Order of the State Horse Racing Commission at 84-051 dated November 8, 1984. 92 Pa. Commw. Ct. 472,
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Larsen, J., concurs in the result. Zappala, J., files a dissenting opinion.
Review was granted in this matter to consider the questions (1) whether the defense of entrapment is available in administrative, to wit license revocation proceedings, and, if so, (2) whether the defense is available to the appellee in this case. Appellee, R.A. Smith, is a jockey whose license was suspended by appellant, the State Horse Racing Commission, on charges that he conspired to fix the outcome of a horse race.
The salient facts, as set forth in the Commission's adjudication, are as follows. Early in 1984, Smith met another jockey, one Vergara, who was unknowingly acting as an agent of investigators from the Attorney General's office. Vergara was participating in a scheme to entice other jockeys to agree to fix a race at some time in the future. In return for his agreement, each jockey received $500. Vergara received $100 per jockey for every jockey he enlisted.
Vergara asked Smith whether he would be interested in "doing business," and, on February 24, 1984, the two men went to a store in the vicinity of the Penn National Race Course to make a phone call in furtherance of this "business." Upon arriving at the store, Vergara spotted the agents from the Attorney General's office. Vergara advised Smith that the agents were "bad people" and that Smith could "help him out" if Smith joined Vergara in the agents' car and went along with whatever these bad people were proposing. Smith did so. He entered the car, talked about the plans to fix races, and accepted $500 in cash.
Once out of the car, Smith and Vergara went to a bar where Smith attempted to give Vergara the $500. Vergara convinced Smith to keep the money saying that Smith had "helped him out of a tight spot" and that Smith might not ever be called concerning a race.
Smith's license was revoked, on grounds his "experience, character or general fitness . . . is such that [his] participation . . . in horse racing or related activities would be inconsistent with the public interest, convenience or necessity or with the best interests of racing." 4 P.S. § 325.213, 58 PA. Code § 163.58. On appeal to the Commission from the initial revocation decision, Smith raised the defense of entrapment. The Commission rejected the defense, on the grounds that entrapment is only available as a defense to a criminal prosecution. Commonwealth Court reversed, 92 Pa. Commw. 472, 501 A.2d 303.
In 1972, the General Assembly defined entrapment; the definition is contained in the Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, eff. June 6, 1973, 18 Pa.C.S.A. §§ 101 et seq. That enactment provides, in relevant part, as follows:
(a) General rule. -- A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by . . .
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
(b) Burden of proof. -- . . . [A] person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct ...